Monday, August 7, 2017

The Latest Anti-Doping Hysteria, And The Problem Of Reducing Complicated Issues To 140 Characters

When I started this blog in 2010, I had the intention of including lots of original content.  I did a pretty good job at first, but inevitably work took precedence.  But I had some extra time this weekend, giving myself a bit of a break after 3 anti-doping arbitrations in a 6-day stretch.  So after an enjoyable morning bike ride, I settled in to watch the IAAF World Championships.  Having recorded the coverage so I could fast-forward through much of the commentary and pre-race hype, I studiously avoided social media so that I could watch without knowing the results.  I watched two remarkable finals:  Almaz Ayana absolutely crushing the field in the second half of the women’s 10,000 meters, and Justin Gatlin's shocking win over Usain Bolt in Bolt’s self-proclaimed last 100-meter race ever.

Then I decided to check the twitter response, which was as predictable as it was illogical:

“Until Ethiopia follow proper doping procedures I for one do not accept these athletes performances”

“All those expressing dismay that a doper won must be in denial about the fact that evidence shows >40% of elite athletes dope”

“Gold medal to any advertising executive with convincing pitch to attract fans to watch athletics where Almaz Ayana & Justin Gatlin are stars”

Here is the problem with social media rhetoric:  sound bites and tweets are compelling in their simplicity, but anti-doping is complicated.  When you reduce anti-doping to 140 characters, illogic is inevitable.  I could write or talk for days about the complexity of the issues in anti-doping, but let me illustrate the illogic of the latest hysteria with a few questions raised by these simple tweets, questions that are easy to ask and much more difficult to answer:

If performances can only be trusted by athletes who live or train in countries that have strong and independent National Anti-Doping Organizations, then why is there such skepticism over Justin Gatlin’s performance, when he has not tested positive or had any known anti-doping issues since returning from his 4-year ban in 2010, while living and training in a country that has one of the strongest and most independent National Anti-Doping Organizations?

If entire nations such as Ethiopia are to be singled out as “not following proper doping procedures,” then how can you justify the fact that Russia remains the only country that is precluded from competing at these World Championships?

If more than 40% of elite athletes dope, which presumably would mean that 40% or more of the 2017 IAAF World Championships women’s’ 10,000 meters were doping, then how did Almaz Ayana completely dominate the field and win by 46 seconds?

If more than 40% of elite athletes dope, but less than 2% of all anti-doping tests result in either an Adverse Analytical Finding or an Atypical Finding [see  https://www.wada-ama.org/sites/default/files/resources/files/2015_wada_anti-doping_testing_figures_report_0.pdf], does this mean that more than 38% of elite athletes are doping and not being caught?  And if this is the case, how can you continue to justify the exclusion of all Russian athletes from these World Championships while at the same time believing that a significant number of competing athletes from all countries are doping and not being caught?

It is frequently claimed by the anti-doping authorities, as one of the justifications for their pursuits, that if people don’t believe that what they are watching is real (i.e., if they believe most competitors are doping), they will stop watching.  This is a consistent narrative, that anti-doping threatens the very existence of sport.  Without in any way meaning to minimize the anti-doping fight, history shows that there is little, if any, correlation between people’s belief as to the prevalence of doping and their decision as to whether or not to watch.  In fact, for the most dedicated fans, it could be argued that the debate about who is or is not doping is simply part of the conversation, in the same manner as the debates over who will win a particular game, who is the best, etc.  Sport fuels a 24-hour media industry, which depends on controversies to generate interest.  The doping debate has simply become one of those controversies which makes fans more engaged, not less.


Anti-doping is complicated.  Certainly, athletes who “cheat” are not always caught.  But at the same time, athletes who test positive are not always “cheaters,” let alone villains.  Attempts to encapsulate anti-doping in a sound bite or a tweet – to say that you do not accept extraordinary performances from athletes from certain countries or to use the pejorative phrase “drugs cheat” indiscriminately or to simply declare that the majority of athletes are “doping” - may help build hysteria, it may even help to build interest, but it will inevitably be over simplistic and prone to illogic.

Tuesday, April 8, 2014

Swimmer Omar Pinzon Completely Exonerated By Court Of Arbitration For Sport, Responds To CAS Decision

Los Angeles (April 8, 2014) – Omar Pinzon’s long fight to clear his name is finally over, with the Court of Arbitration for Sport (“CAS”) issuing its final decision exonerating him earlier this week.

Despite the fact that he has never used cocaine, Mr. Pinzon tested positive for cocaine while competing at the Colombian National Games in Cali, Colombia, on November 10, 2012.  Confident that he was innocent, Mr. Pinzon submitted to a polygraph examination, and was found to be truthful that he had not knowingly used cocaine.  When he was suspended by the national swimming federation for Colombia (FECNA) for 2 years, Omar Pinzon appealed to the CAS.

Following a hearing in New York in February 2014, CAS has now issued its final decision, fully exonerating Omar Pinzon.  In its decision, the CAS tribunal noted the following:

-the CAS tribunal did not believe that Omar Pinzon had ever used cocaine;

-the testing laboratory in Colombia had not used the standard test for cocaine, and did not establish that it even followed its own required testing protocols;

-there is no known scientific study that would support the test results reported by the testing laboratory in Colombia;

-the results reported by the testing laboratory in Colombia are virtually impossible in a human urine sample after the ingestion of cocaine, meaning that the test results are inconsistent with biology; and

-the lab result can only be explained by lab error, manipulation of the sample or adulteration of the sample.

In addition, the CAS tribunal ordered that FECNA must pay Omar Pinzon in excess of US $50,000 for the costs of the arbitration and his legal fees.

In responding to the CAS decision, Omar Pinzon stated as follows:

“I am extremely happy with the CAS decision, because it proves what I already knew, which is that I was completely innocent.   The past year has been extremely difficult for me and my family, and I look forward to returning to competition later this month.


Despite this ordeal, I look forward to again representing my country in the near future.”


For more information please contact Howard Jacobs:


Howard L. Jacobs                                          
Law Offices of Howard L. Jacobs                 
2815 Townsgate Road, Suite 200                  
Westlake Village, California 91361                
Tel. 805.418.9892  Cell. 818.422.0508         
Fax. 805.418.9899                                         
howard.jacobs@athleteslawyer.com             

Friday, December 20, 2013

Alix Klineman Receives Reduced Suspension for Inadvertent Use of Banned Supplement, Responds To AAA Decision

Los Angeles (December 20, 2013) – The American Arbitration Association recently issued its decision suspending volleyball player Alix Klinemen from competition from May 22, 2013 through June 9, 2014 for her inadvertent use of a banned supplement, thereby allowing her to return to competition early next summer.

In its decision, the AAA Panel summarized the reasons for its decision as follows:

            “USADA agreed with [Alix Klineman’s] contention that she is not a drug cheat.  [Alix Klineman] is an exceptional, forthright person who unfortunately finds herself caught up in the persistent world-wide efforts to eradicate performance enhancing drugs in sport through the imposition of stringent minimum penalties even where clear and convincing proof exists that an athlete made a small error with no intent to gain a competitive advantage.”

In responding to the AAA decision, Alix Klineman stated as follows:

“This has been a devastating experience for me. It is an understatement to say it is heartbreaking for me to be punished for something I never intended to do. Having accidentally taken a banned substance means that I am placed in the same category as those who meant to cheat to get an unfair advantage. This, of course, was never my intention nor did I ever know that I was taking a banned substance.

Nevertheless, I am pleased that the Arbitration Panel recognizes that I never attempted to gain any competitive advantage nor did I obtain any competitive advantage through my mistake. Further, the panel has stated in their report that they believe that I took reasonable precautions to avoid taking any prohibited substances.

I look forward to returning to competition as soon as possible, and working toward my ultimate goal of representing my country at the 2016 Olympic Games.”

For more information please contact Howard Jacobs:

Howard L. Jacobs                                          
Law Offices of Howard L. Jacobs                 
2815 Townsgate Road, Suite 200                  
Westlake Village, California 91361                
Tel. 805.418.9892  Cell. 818.422.0508         
Fax. 805.418.9899                                         
howard.jacobs@athleteslawyer.com             

Wednesday, May 2, 2012

CAS Hands Down Expected Decision in British Olympic Case, WADA Calls For Sensibility and Continued Harmonization

The Court of Arbitration of Sport decision striking down the British Olympic Association's (BOA) lifetime ban on Olympic participation for athletes who have committed doping offenses was fairly predictable, as the result was foreshadowed (and some would say pre-ordained) by last summer's decision in the U.S. Olympic Committee's challenge to the IOC's "Osaka Rule" [see blog posts below).  In fact, following the decision, the World Anti-Doping Agency's (WADA) Director General David Howman, had this to say:

"We gave the BOA a chance to review their opinion after the IOC case. The BOA wasted a lot of time and money and got the inevitable result."  [http://sports.yahoo.com/news/british-olympic-doping-appeal-waste-time-145827457--spt.html]

The BOA has, rather than accepting the decision as one required by law, upped the ante on rhetoric, calling the decision a "hollow victory" for WADA, and calling for much lengthier sanctions.  It would be tempting to fall for this rhetoric, if one believed that those suspended for doping were all "intentional cheaters."  Of course, that is not the case.  It is comforting to see that the anti-doping agencies recognize that there is really no need to overhaul the rules with lengthier sanctions.

In all of the clamor from the BOA for lengthier sanctions for intentional cheaters, they ignore or are simply unaware that those rules already exist.  The WADA Code already provides for a sanction of up to four years for a first offense in the case of "aggravated circumstances."

In addition, the dramatic calls for a lifetime ban for a first offense have been met by WADA with what can only be described as a "reality wake-up call":

"As we go forward we've got to maintain a gentle touch with reality and reality is whatever rules are put in place must be able to sustain a challenge in international law and the appropriate courts, including courts of human rights," [David Howman] explained. "For a first offence, (a four-year ban) [is] totally impossible.

"When you look at lifetime bans they are already in the Code for second, or maybe third offences but for a first offense I would say there would not be one human right lawyer or sport lawyer in the world who would ever suggest that."  [http://uk.reuters.com/article/2012/05/01/uk-olympics-doping-wada-idUKBRE8400QL20120501].

Wednesday, March 7, 2012

"Dwain Chambers and David Millar will be free to compete for Great Britain at the London Olympics, according to a leading sports lawyer"

Here is an article and part of an interview that I did with the BBC in advance of the March 12 CAS hearing on the validity of the British Olympic Association's "lifetime Olympic ban" for British athletes who have committed doping offenses:

http://www.bbc.co.uk/sport/0/athletics/17280765


Thursday, October 6, 2011

COURT OF ARBITRATION FOR SPORT RULES IOC’S “6-MONTH RULE” INVALID AND UNENFORCEABLE

Today the Court of Arbitration for Sport (“CAS”) announced that it has found that the IOC rule that banned athletes who were suspended for more than 6 months from competing in the next Olympic Games after their suspension ended was invalid and unenforceable. The full decision can be found at http://www.tas-cas.org/d2wfiles/document/5314/5048/0/Final20award202422.pdf.

The decision of CAS is a good decision on a number of different fronts. It definitively rejects the notion that an athlete can receive an additional sanction under the false pretense of an “eligibility rule.” It settles once and for all an issue that has been raised in virtually every doping case in which I have been involved since the rule was first enacted in July 2008. It provides certainty to all athletes. It reinforces the World Anti-Doping Agency as the leader of the anti-doping movement in the Olympic movement. It reinforces CAS as the “Supreme Court of Sport,” and further solidifies the independence of CAS.

It was a pleasure for me to present this case to CAS on behalf of the USOC with my Swiss colleague Antonio Rigozzi, and with the USOC’s General Counsel Rana Dershowitz, but there are many who deserve credit. The USOC and IOC certainly should be credited with recognizing that this issue needed to be resolved now, and agreeing to submit this case to CAS a full year before the 2012 Olympic Games. The AAA arbitration panels in the cases of LaShawn Merritt and Jessica Hardy should be credited with addressing this Rule when they could have easily sidestepped it. USADA and the many other national anti-doping organizations that submitted briefs in support of the USOC’s position should be credited for standing up and taking a firm and unwavering position that this rule was actually hindering their ability to do their jobs. Significantly, Jessica Hardy and LaShawn Merritt should be credited for handling themselves with dignity, and for reminding us that sport is about the incredible athletes who inspire us.

Monday, August 1, 2011

FINA Executive Director: If You Test Positive, Hire A Good Lawyer

In criticizing the large range of sanctions for certain types of positive tests [see http://www.thepeninsulaqatar.com/international-sport/160552-fina-chief-marculescu-criticises-doping-rules.html], FINA's Executive Director (unintentionally) provides advice that is not always followed by athletes and their agents - hire a good lawyer:

“You are in a civil court, you have a good lawyer, you have a good argument, that influences the panel. The range is too huge. I think it’s too much ... Today the new [WADA] code is like going to the civil court: you have a good lawyer and you are out. You have a bad lawyer, you are in.”

I disagree with the sentiment expressed here regarding the wide sanction ranges in certain cases under the World Anti-Doping Code: they should properly be viewed as providing arbitrators with the latitude to distinguish between cases of intentional doping and cases of inadvertence (as was the case for swimmer Cesar Cielo, among others), which is a good thing. Of course, this wide discretion means that the athlete's lawyer has to be even more persuasive and convincing, in cases of inadvertence.

Of course, I do agree with the unintended message that is conveyed in the linked article quoted above: if you test positive, and your career is on the line, then having the best athlete's lawyer on your side seems like an easy decision to make.

Saturday, July 23, 2011

A Big Win For Cesar Cielo



Changes to the World Anti-Doping Code over the last several years have been advertised as trying to distinguish between intentional dopers and inadvertent positive tests. Common sense supports the notion that if an athlete can prove that a positive test was inadvertent, with no intent to enhance performance, and where there was no performance enhancement, then there should be no sanction. Now, at least in this case, the Court of Arbitration for Sport has agreed - see http://sports.espn.go.com/oly/swimming/news/story?id=6789577.

Bravo.

Thursday, April 28, 2011

Some Recent Developments in the Olympic World - the "Osaka Rule"

Two recent developments regarding the same controversial rule that would sanction any athlete who is suspended for more than 6 months for a doping offense with a ban from the next Olympics after their suspension ends: (1) the International Olympic Committee and the U.S. Olympic Committee have agreed to have the Court of Arbitration for Sport decide the validity or invalidity of the rule; and (2) the International Olympic Committee has determined that the rule does not apply to Jessica Hardy, therefore clearing her way to the 2012 Olympic Games. Both developments are recent, and here is a sampling of some of the commentary from three reporters who have closely followed the issue - Phil Hersh, Bonnie Ford, and Alan Abrahamson

http://newsblogs.chicagotribune.com/sports_globetrotting/2011/04/ioc-usoc-make-nice-to-seek-ruling-on-merritt-doping-case.html

http://espn.go.com/blog/olympics/post/_/id/728/jessica-hardy-ruling-is-the-right-one

http://3wiresports.com/2011/04/28/a-win-for-jessica-hardy-and-common-sense/

Thursday, April 14, 2011

Barry Bonds Convicted For Talking About Fishing

In a bizarre verdict that seems unlikely to survive the certain legal challenges to come, the jury in the Bonds case did not convict on any counts of perjury, but convicted based on a finding of "obstruction of justice." So the jury did not find that Bonds lied to the grand jury, but did find that he obstructed justice through his grand jury testimony. How was this possible?

Here are the relevant portions of the jury instruction on "obstruction of justice" that led to the conviction:

"OBSTRUCTION OF JUSTICE
(18 U.S.C. § 1503)

The defendant is charged in Count Five with obstruction of justice in violation of 18 U.S.C. § 1503. In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:

1. The defendant corruptly, that is, for the purpose of obstructing justice,

2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,

3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.

A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify ...

Statement C:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t – we don’t sit around and talk baseball, because he knows I don’t want – don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends, you
come around talking about baseball, you go on. I don’t talk about his business. You know what I mean? …

Q: Right.

A: That’s what keeps our friendship. You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see… "

So, was the U.S. Attorney incapable of asking a follow-up question to get an answer as to whether or not Anderson ever injected him? No, there was a specific denial that Anderson injected Bonds in a different portion of the grand jury testimony. Did Bonds' rambling answer prevent the government from obtaining the information that they needed? No. Did Bonds' answer prevent the government from obtaining any convictions in the BALCO case? No. So how exactly is this "obstruction of justice"?

This is certainly far from over. My prediction? This single count on which the jury convicted Bonds will not survive the upcoming legal challenges.

Wednesday, February 16, 2011

DIANA TAURASI CLEARED, LABORATORY RETRACTS POSITIVE TEST REPORT AFTER EXAMINING HER LEGAL DEFENSE

There was a good editorial piece today in the Hartford newspaper (online) - http://www.courant.com/sports/hockey/hc-jacobs-taurasi-column-0217-20110217,0,6640928.column. The Arizona Republic also had a comprehensive story - http://tucsoncitizen.com/sports-news/2011/02/16/turkey-lifts-provisional-doping-ban-on-diana-taurasi/

Aside from the fact that this case should never have been brought in the first place, it certainly should never have been publicized prior to any legal review taking place. The mere accusation of doping is damaging by itself, and being publicly charged and then later cleared never fully restores the athlete.

In Diana Taurasi's case, look what happened when her case was reported by the media. Her team terminated her, likely costing the team the European championships. Bloggers immediately jumped on the story with all of their own prejudices and personal motivations (for example, some sports lawyers used the case for their own social media marketing, getting the facts wrong in the process). Most traditional journalists wrote the standard "doping story," some relating the case to the modafinil positives that arose from the BALCO scandal. Shaun Assael at ESPN wrote a good piece about the scientific and legal issues that ultimately led to her being cleared (http://sports.espn.go.com/wnba/news/story?id=6089810).

I am honored that Diana Taurasi entrusted me with the difficult task of proving her innocence.

Tuesday, February 15, 2011

2 INTERESTING ARTICLES IN TODAY'S NEW YORK TIMES (ONLINE)

While there will certainly be much more to come, the NY Times so far has the best summary of the recent Contador exoneration in Spain - http://www.nytimes.com/2011/02/16/sports/cycling/16contador.html.

NY Times also posts a summary of a recent evidentiary ruling in the Barry Bonds case, which is set to start trial in just over one month-http://www.nytimes.com/aponline/2011/02/15/sports/baseball/AP-BBO-Bonds-Steroids.html?_r=1&ref=sports.