- The Washington Times - Tuesday, June 15, 2004

The switch to a lower burden of proof in doping cases has raised concerns among some lawyers representing athletes under scrutiny for possible drug violations.

But the U.S. Anti-Doping Agency, which plans to apply the less-stringent standard in those cases, said yesterday it simply is conforming to long-held international standards.

Edward Williams, a lawyer who has represented athletes involved in doping cases, said it would be “shocking” for the USADA to change the burden of proof in ongoing cases.

“You can’t change the rules in midstream. You can’t change the burden of proof,” Williams said. “If it is true, it is yet another example of USADA trying to ensure the outcome of its cases.”

The move, revealed in USADA memos obtained Sunday by the Associated Press, could make it easier for the agency to bring cases against Olympic champion Marion Jones and other athletes. Jones is under investigation by the USADA, while four other U.S. athletes have been notified formally that the USADA is pursuing possible doping cases against them.

Since none of the athletes in those cases failed a drug test, the USADA is building cases based on documents and other circumstantial evidence deriving from the Bay Area Laboratory Co-Operative case. Documents from the grand jury investigation of BALCO were subpoenaed by a Senate committee and then turned over to the USADA.

Until recently, the International Association of Athletics Federations had used “beyond a reasonable doubt” as the burden of proof in doping cases worldwide — the same standard used in U.S. criminal courts.

The IAAF on March 1 conformed to World Anti-Doping Code language, saying drug cases must be proven “to the comfortable satisfaction” of the panel hearing the case.

It’s a standard used regularly in professional misconduct cases, such as those involving doctors and lawyers. And it has been used by the Swiss-based Court of Arbitration for Sport in dozens of doping cases as far back as the 1996 Atlanta Olympics.

Article 3.1 of the World Anti-Doping Code, which was adopted a year ago, states that such a standard “is greater than a mere balance of probability but less than proof beyond a reasonable doubt.”

Howard Jacobs, an attorney representing 100-meter world record holder Tim Montgomery — one of the four athletes told by the USADA that they are targets of possible doping cases — said the supposed doping offenses were said to have occurred before March1, and therefore the old “beyond a reasonable doubt” standard must be applied.

“The standard is the one that was applicable at the time the doping offense allegedly occurred,” Jacobs said. “You can’t apply a new rule like that retroactively.”

But one of the USADA memos says that since such cases were initiated by the anti-doping agency after March1, the less-stringent burden of proof now in effect should be applied.

Travis Tygart, the USADA’s legal affairs director, said his agency simply is applying standards set out in a worldwide code and adopted by the IAAF.

“We don’t mandate the rules; we enforce the rules,” he said. “The world has set comfortable satisfaction as its standard since it most appropriately balances the right of clean athletes and fair sport against the interests of the accused.”

The attorney for Kelli White, who admitted doping violations and accepted a two-year ban, said the new burden of proof is vague — and its application could hurt accused athletes.

“What the heck does [comfortable satisfaction] mean? I think we need to define that,” Jerrold Colton said. “It conjures up a rather lesser standard, which could be detrimental to the athlete.”

Jones met with USADA officials last month to discuss possible drug evidence against her and received a letter from the agency last week asking follow-up questions. On Friday, she asked that her grand jury testimony in the BALCO case be released to her so she could pass it on to the USADA.

She was one of several dozen athletes who gave secret testimony last fall before the grand jury that ultimately indicted four men for distributing steroids to top athletes.

Jones won an unprecedented five track medals at the 2000 Sydney Olympics and has hinted she might try to match that mark at the Athens Games. She repeatedly has denied using performance-enhancing drugs and has vowed to fight any USADA charges.

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