ESPN Outside the Lines Story on Diana Taurasi, June 6, 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/

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.

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.

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.

SNOWBOARDING’S PATH TO THE OLYMPIC GAMES: A HISTORY LESSON FOR COMPETITIVE CHEERLEADING AND DANCE

In my last blog entry, I analyzed competitive cheerleading and dance as growing sports at the high school and collegiate level. I suggested that a path might exist for these sports to grow in the competition arena and potentially even gain entry to the Olympics. This is not as far fetched as it may sound, and does not necessarily have to be that far off in the future. In fact, organization of these “competitive sports” has already started: the International Cheer Union (ICU) will be formally applying to Sport Accord (an association of international sports federations) for membership next year; and the International Dance Sport Federation (IDSF) is already a member of Sport Accord and is diligently working to have competitive dance added as an Olympic Sport. However, history suggests that this may not be the best avenue to achieving Olympic or even NCAA status.

Snowboarding offers an interesting historical perspective, with many rather unexpected parallels. As one of the most popular Olympic events at the 2012 Olympics, it is hard to imagine the contentious path that snowboarding took to the Olympic Games.

During snowboarding’s rapid growth in the 1990’s, the international federation for the competitive aspects of the sport was the International Snowboard Federation (“ISF”). Terje Haakonsen, regarded by many as the best snowboarder ever, found his early fame on the ISF competition circuit (the ISF is separate from and should not be confused with the International Ski Federation, which is the FIS).

In deciding to add snowboarding as an Olympic event in 1998, the International Olympic Committee (“IOC”) controversially decided to name the skiing federation (FIS) as the recognized international federation for snowboarding, instead of the actual snowboarding federation – the ISF. Many professional snowboarders and industry insiders were unhappy with this decision, believing this to be a power grab by the ski federation, who had an existing relationship with the IOC, despite the feeling at the time that the FIS knew little about snowboarding. In fact, significantly and very publicly, Terje Haakonsen boycotted the 1998 Olympic Games, and has never competed in the Olympic Games. All the protests and boycotts did little to elevate the ISF. Instead, as the competitive aspects of the sport shifted to the FIS, the ISF ultimately folded in 2002.

Competitive snowboarding has flourished since its introduction to the Olympics. However, the “commercialization” of the sport has not had the dire consequences with respect to the more artistic aspects of snowboarding that some predicted. In fact, today many professional snowboarders have thriving careers based on film and video shoots, combined with commercial endorsements, without competing in snowboarding contests at all.

Competitive cheerleading and dance could learn from the experiences of snowboarding. The easiest path to the Olympic Games would be a partnership with an international sports federation that already has events inside the Olympic Games – for example, the International Gymnastics Federation (FIG). Organizing competitive cheer or dance under the umbrella of an established federation like FIG could rapidly increase the opportunities for dancers that do not exist today, possibly leading to dance as a full Olympic and NCAA sport. At the same time, as has been experienced with snowboarding, the artistic and professional opportunities that already exist in the dancing world should not be diminished in any way.

CHEERLEADING AND DANCE: WHO WILL BE THE FIRST SHAUN WHITE OF THESE GROWING SPORTS?

Since 1982, when ESPN televised the first of many Cheerleading National Championships, there has been a slow, but consistent evolution of cheerleading from a recreational activity to a competitive sport. To some degree dance has been moving more in a competitive direction as well, with the proliferation of high school dance teams, and the popularity of competition dance shows such as “Dancing With The Stars” and “So You Think You Can Dance.” Since I am surrounded by dancers both at home and at work, the topic of dance as a sport is one in which I have some interest.

It is generally accepted that cheerleading is a strenuous activity with a fairly high risk of injury. In fact, Wisconsin Supreme Court ruled last year that cheerleading could be considered as a full contact sport. Cheerleadering accounts for almost two thirds of catastrophic injuries suffered by high school girls and college women, a fact that has been addressed by the NCAA.

A sport can be generally defined as an organized activity, requiring skillful capabilities, and in which a winner can be determined objectively according to a principal set of rules. In Title IX cases, some courts have characterized collegiate sport as including off-campus recruiting, a defined season and post season, a consistent set of rules, and competitive contests.

Much has been written about whether competitive cheerleading qualifies as a sport under Title IX, and the implications of that decision. See, for example, http://savingsports.blogspot.com. Another related issue that has been less explored is how competitive cheerleading and dance can better organize themselves to avail themselves of the opportunities that exist in collegiate and international sporting arenas. Organization has already started on two separate fronts: the International Cheer Union (ICU), which will be formally applying to Sport Accord (an association of international sports federations) for membership next year; and the International DanceSport Federation (IDSF), who is already a member of Sport Accord and is diligently working to have competitive dance added as an Olympic Sport. However, these organizations have a long way to go. For example, when the Connecticut courts ruled last month that Quinnipiac University’s competitive cheerleading team did not qualify as a sport for Title IX purposes, it was based in part on the observation that “the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”

In my next blog entry, I will offer suggestions as to how competitive cheer and competitive dance could better organize themselves to increase their chance of being recognized as both NCAA and Olympic sports; and how they can learn from the organizational experience of the sport of snowboarding.