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In the summer of 1999 an American track and field athlete tested positive for a banned steroid during a competition. A urine sample showed the presence of nandrolone, which builds muscle mass. A USA Track & Field hearing panel ruled that the athlete was guilty of doping and imposed a suspension. Then, two months before the start of last year’s summer Olympics in Sydney, a USATF appeals panel overturned the decision. The athlete, whose name has never been publicly revealed, competed in Sydney. Was justice done? Did the system work by giving a clean athlete the chance to clear his or her name? Or did a dirty athlete flex enough legal muscle to get into and possibly medal in the Olympics? That’s one of the questions left hanging in the wake of a nine-month investigation by a commission of four international sports experts, assisted by New York’s Skadden, Arps, Slate, Meagher & Flom. USATF appointed the commission a year ago, in the wake of charges during the Sydney Olympics that the U.S. track federation was concealing information about athlete doping. The commission was asked to examine whether anyone at USATF had covered up positive drug tests, and review the organization’s overall doping adjudication program during the 20 months before the Olympics. The Skadden Arps team, led by Washington, D.C., partner Robert Bennett, pursued these issues with all the investigative zeal expected from the man who defended President Bill Clinton in the Paula Jones case. They interviewed more than 60 witnesses in North America and Europe and pored over doping case files. The commission itself included two recognized experts in the field of doping adjudication: Chairman Richard McLaren of the University of Western Ontario is a veteran sports arbitrator, and New Zealand barrister David Howman heads the World Anti-Doping Agency’s legal committee. When the commission released its 104-page report this summer, it cleared the organization of the cover-up charges. But the result was hardly a victory for USATF. The report criticized its day-to-day handling of doping cases, rebuking it for its adversarial approach, its failure to follow its own rules, and a confidentiality policy so tight that it refused to share information about positive-testing athletes with the International Association of Athletics Federations (IAAF), the sport’s global governing body. “USATF’s inflexible adherence to such a restrictive confidentiality policy may lend credence to the view of some that USATF has something to hide,” the report stated. USATF also came under fire for being too concerned with protecting individual athletes, at the expense of the integrity of the sport. Says Bennett: “It is important that Track & Field understand its obligation to the entire sports movement and not view itself as an individual athletes’ rights organization.” The report angered Craig Masback, the Yale Law School graduate and former associate at Washington, D.C.’s Wilmer, Cutler & Pickering who is the CEO of USATF. Masback, 46, alleges that the investigation exceeded its mandate and that the commissioners and Skadden Arps failed to appreciate the complexity of the international doping control regime. In addition, he maintains that political undercurrents fueled the charges against his group: “We were victims.” Responds Bennett: “These are baseless and irresponsible statements. It is very clear from the report that the commissioners acted well within their mandate. … It is unfortunate that Mr. Masback feels the way he does, because the serious problems identified by the commission will only be remedied if the problems are recognized by USATF.” Since the Sydney Olympics, a new independent entity, the U.S. Anti-Doping Agency, has taken over drug testing and adjudication for all U.S. Olympic sports, including track and field. With USATF no longer handling its athletes’ doping cases, many issues raised by the commission report are no longer under the jurisdiction of USATF. Still, with the fledgling anti-doping agency seeking to gain the confidence of the international sports community, the weaknesses in USATF’s doping control program offer valuable lessons on how to establish a more credible and effective regime. When Masback took the top USATF post in 1997, he faced a tough task: Revive the popularity of a struggling sport, and do it with shoestring finances. The budget for the Indianapolis-based group was $6.5 million. (It’s currently $11.6 million.) Under Masback, the group increasingly clashed with the Monaco-based IAAF. Masback — a former Princeton runner who nailed 30 sub-4-minute miles in his younger days — insisted on stringent procedural protections for U.S. athletes, even if they conflicted with IAAF rules. Debates rage over the prevalence of doping in international track and field. Last August’s world championships in Edmonton, Alberta, were marred when Russian distance runner Olga Yegorova tested positive for the banned substance EPO but competed because of a procedural error in the test. She won the gold medal in the 5,000-meter race. Athlete drug testing rules are complicated and involve numerous agencies. During the period reviewed by the commission, tests on U.S. track and field athletes were administered either by the U.S. Olympic Committee or the IAAF. (USATF did not do any drug testing itself.) If a test came back positive, it was USATF’s responsibility to investigate and adjudicate and to keep the IAAF informed. The cash-strapped USATF relied heavily on volunteers — often drawn from the ranks of law firm associates — to present and adjudicate doping cases. Their knowledge about the scientific intricacies of doping varied. It’s not hard to see the flaws in this system. USATF’s main mission is to promote the sport. If it had had to expose stars as dopers, that would have been bad public relations. In early 1998 Masback hired another former Princeton runner, Jill Pilgrim, as USATF’s first staff general counsel and put her in charge of doping control. Previously, Pilgrim had founded a group called the Center for the Protection of Athletes’ Rights and had appeared on television news shows to protest the unfair treatment of sports stars Tonya Harding and Latrell Sprewell. (She didn’t represent either one.) Pilgrim took steps to improve the doping adjudication process, including contracting with the American Arbitration Association to handle the hearings. But she and Masback also brought to USATF a highly legalistic, at times adversarial, sensibility that focused on protecting athletes. Looking over the 20-month period before the Sydney Olympics, the commission and Skadden found numerous problems with USATF’s doping control program. It failed to make public announcements when athletes were found guilty of doping, as it was required to do. The commission said that it didn’t provide enough information for drug testers to locate athletes for unannounced, out-of-competition drug tests, a charge that Masback rejects. It failed to enforce deadlines for hearings, with many cases taking more than a year to resolve, allowing athletes who tested positive to continue to compete all the while. Masback says that hearings were often delayed by circumstances beyond USATF’s control, such as labs failing to send information on time. “We never said we were perfect,” says Masback. “This stuff is enormously complicated. … [But] there’s lots of blame to go around.” In particular, the commission found that the integrity of USATF’s doping adjudication was compromised by its refusal to turn over to the IAAF the names of athletes whose domestic tests came up positive. The U.S. federation withheld that information, along with details about the case, until it made a final determination that the athlete was doping. If it exonerated the athlete, the IAAF never knew the individual’s identity. This prevented the IAAF from reviewing these cases, as its rules allow it to do. “USATF is the only body that takes this position,” says Arne Ljungqvist, senior vice-president and chairman of IAAF’s anti-doping commission. “We can’t have one rule for USATF and one for all the others.” Masback argues that USATF was simply honoring the legal rights of U.S. athletes. In fact, he disputes whether USATF was even required to turn over this information. Because USATF was prohibited from making a public disclosure of an athlete’s positive test before a final adjudication, he says, it could not even inform the IAAF in private. That’s because the international group had a nasty habit of leaking the names to the European press, he charges. Masback dismisses the doping controversy in Sydney as the machinations of Ljungqvist, who Masback says wanted to be IAAF president: “This was one man’s issue on one day and one man getting his name in the paper.” Ljungqvist scoffs, “To resort to such argumentation is, in my view, a clear sign of a lack of factual arguments.” (He adds that, at age 70, he had no desire to hold the post.) The commission and Bennett weren’t swayed by Masback. They said USATF officials chose an “unnecessarily restrictive” interpretation of confidentiality rules: “While USATF’s position … might arguably be defensible, the commission finds that it is inconsistent with USATF’s commitment to work with the IAAF to combat doping.” In another swipe, the commission chided USATF for the “unnecessarily contentious tone and hypertechnical argumentation” displayed in its IAAF correspondence. Colorado Springs lawyer Richard Young, the general counsel to the new U.S. Anti-Doping Agency, who was interviewed by the commission, says USATF’s extreme posture on confidentiality has cast a cloud over its doping control program: “Whether the decisions of USATF exonerating its own athletes were good or not, they had zero international credibility.” The articulate Masback doggedly fights every point, often emotionally and often veering into attacks on others’ wrong-headedness. This zeal hasn’t always been appreciated in the international track world, where some label it American arrogance. And it may not have served him well during the commission’s investigation. Masback isn’t directly criticized in the report, but the investigators’ frustration with his tenacity is apparent. It’s almost as if the former miler saw the investigation as yet another competition he needed to win. If one case highlights the conflict between USATF and the international track federation, it’s that of Mary Decker Slaney, the phenomenal middle-distance runner. In June 1996 the 37-year-old Slaney was making one last bid for an elusive Olympic medal. At the Olympic trials, Slaney finished second in the 5,000-meter finals, qualifying for the team. A urine sample taken after that race showed testosterone levels more than 10 times the norm for women. Slaney denied she was doping, instead blaming her menstrual cycle and a change in birth control pills. While her doping case was pending, she competed in the Atlanta Olympics but did not medal. When Masback took over USATF in the summer of 1997, the organization had yet to hold a hearing in Slaney’s case, despite a year’s passage since the runner’s positive test. Aggrieved by USATF’s perceived foot-dragging, the IAAF suspended Slaney. USATF finally held a hearing in September 1997. The three-person panel included athlete advocate Pilgrim, who was then in private practice. Slaney was represented by former Wilmer Cutler partner James Coleman Jr., who had practiced law with Masback at that firm. To present the case against Slaney, USATF used a volunteer fourth-year associate from San Francisco’s Pillsbury Madison & Sutro (now Pillsbury Winthrop). After a two-day hearing, the panel cleared Slaney. It came to the startling conclusion that the IAAF’s commonly accepted testosterone standards were invalid, and labeled them vague and inconsistent. At the time, Masback publicly announced that he was “pleased” with this outcome. (At that time USATF was not adhering to its strict confidentiality standard.) An alarmed IAAF appealed the decision. An international arbitration panel reversed the decision in January 1999, finding Slaney guilty of doping. It was a humiliating slap in the face to USATF. Slaney has continued her fight in federal court, suing the IAAF and the United States Olympic Committee, which administered the drug test, for RICO violations and other claims. The court rejected her claims, as has an appellate court. Earlier this year Slaney and her lawyers filed a cert petition with the U.S. Supreme Court. The Slaney saga not only visibly pitted USATF against the IAAF, but served as a reminder of how litigious some athletes can be. The top stars have the financial resources and contacts to overwhelm USATF. When champion shot-putter C.J. Hunter, the husband of track and field darling Marion Jones, tested positive for nandrolone before the Sydney Olympics, he enlisted lawyers from New York’s Cravath, Swaine & Moore — and Johnnie Cochran to boot. (Hunter and Jones are now divorcing.) Masback stresses that the threat of litigation is a constant: “Were we scared of litigation? Absolutely. Guilty as charged. This organization was on the brink of financial disaster when I started. It’s only slightly better now.” Masback maintains that previous IAAF leaders took this into account. “They understood we were a more litigious society. They made accommodations.” Masback acknowledges that he is an athlete advocate. “Guilty as charged, if we see our role as forwarding the rights of athletes,” Masback says. General counsel Pilgrim also embraces the label. “I hope that would be a compliment,” says Pilgrim, adding, “I’m puzzled by that comment. Do we think a sports organization is better served with a general counsel opposed to athletes’ rights?” When the U.S. Anti-Doping Agency took over the adjudication of doping charges last fall, Masback and Pilgrim were glad to be relieved of those duties. They had supported the creation of this independent agency from the start. Nevertheless, a controversy simmers over last year’s Sydney Olympics. At press time the IAAF was still pressuring USATF to disclose to it the name of the Olympic athlete whom it had cleared of doping charges just weeks before the Sydney games. Says IAAF’s Ljungqvist: “We will not back down from that position.”

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