Good Cop, Bad Cop
WADA, The International agency that oversees drug testing in sports, has done a solid job of cleaning up some rotten games. But a growing number of critics contend that it's become overzealous and arrogant, sometimes trampling the civil liberties of athletes in the process. As the case of Winter Olympian Zach Lund illustrates, they have a point.
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SINCE I ALREADY know Zach Lund’s life story, I can’t help it: The first thing I do when we meet is stare at his shiny bald head. He looks good bald, though he also looks more like an ordinary guy who works out than an Olympic athlete. He’s fit, compact, and so unassuming that, as we stand around in his hotel room at the Hilton Universal City, gazing at the Hollywood Hills, he seems a little amazed to be here in the heart of showbiz.
Zach LundOlympic skeleton racer Zach Lund
Lund has spent the past ten hours smiling, talking, and emoting for NBC, which has been shooting profiles of athletes expected to make the U.S. Winter Olympic team in Vancouver. The day was fun but a struggle, too. Lund has overcome a lot to succeed, but he’s mainly known for getting kicked out of the 2006 Winter Games in Turin, Italy, thanks to a drug-related suspension that he and many others believe was unfair. Inevitably, Turin is what everybody asks about, so, later that night when we sit down to dinner, he wants to make sure I understand his full story.
Lund, 30, makes his living in “a crazy-ass sport” that most Americans watch for a few minutes every four years. He races on a glorified cafeteria tray called a skeleton sled, down twisty ice tracks at speeds of up to 90 miles per hour. Back in 1992, he was a 13-year-old kid living in a Utah mountain town when the USA Luge people came through and held scouting tryouts. Lund’s showing earned him an invitation to Lake Placid, New York, to be part of the development squad. He was thrilled. He’d wanted to be in the Olympics since he was nine and watched Carl Lewis compete in Seoul. He was so taken with the pomp and spirit of the Games that he ran into his backyard and started doing wind sprints.
Unfortunately, soon after Lund was picked, his mother was diagnosed with melanoma, and he stayed home to be with her. After her death that year, Lund’s dad worked two jobs to help support his son’s Olympic dream. Lund worked, tooHome Depot, airline baggage handlerand took a few college classes, but skeleton was his life. With Salt Lake City hosting the Winter Olympics in 2002, he hoped to make the team, but injuries from a car accident kept him from doing well at the trials. Finally, in 2006, he flew to Turin as the favorite.
A shadow loomed, though. The previous November, at a competition in Calgary, Lund had tested positive for a drug called finasteride, an anti-baldness medication that had been banned by the World Anti-Doping Agency (WADA), the Montreal-based outfit that sets drug-testing and enforcement policies for every Olympic and many non-Olympic sports. Lund started battling premature hair loss in 1997, so when WADA was formed two years later and then developed its first list of banned substances in 2004, he checked it carefully. He checked again when his doctor switched his medication brand. Finasteride wasn’t mentioned. Even so, Lund always told doping-control officials he was using it.
In 2005, WADA added finasteride to its list, saying the drug could mask the use of steroids. That year, Lund didn’t check the list. That may seem dumb, but Lund wasn’t doing anything different than he’d been doing for years, and he simply forgot. He kept telling doping officials he was using the anti-baldness drug, and nobody said a word. He’d even been tested after finasteride was banned and declared to be clean.
WADA presides over a worldwide network of national satellite organizations that, ultimately, answer to WADA. In the United States, the affiliated group is the U.S. Anti-Doping Agency (USADA), a mostly taxpayer-supported organization based in Colorado Springs. As Lund’s home-country doping agency, USADA had first crack at disciplining him, and the agency, along with Lund and his lawyer, L.A.-based Howard Jacobs, arrived at a deal in January 2006. Though USADA recognized that Lund hadn’t gained any performance advantage from the anti-baldness drugand that there was no evidence he’d ever used steroidsLund agreed to have his results from Calgary nullified and to accept a public reprimand for failing a drug test. In return, USADA would not press to ban him from future competition.
WADA, then headed by Dick Pound, a former Olympic swimmer from Canada and a member of the Canadian Olympic Committee, didn’t like the deal. WADA regulations specified tougher sanctions for a failed test, so it appealed to a panel of the Court of Arbitration for Sport (CAS), the Lausanne, Switzerlandbased outfit that acts as judge and jury in these situations. At a hearing in Turin just before the Games started, Jacobs argued that Lund had made an honest mistake. He insisted that finasteride shouldn’t be on the banned list in the first place, because it didn’t mask steroids. But CAS, at WADA’s urging, refused to hear him out.
CAS ruled against Lund, and on the day of the opening ceremonies in Turin, it suspended him for a year. He was immediately expelled from the athletes’ village. A sponsor, Speedo, dropped him. Pound publicly ridiculed him, suggesting that Lund cared more about his hair than being an Olympian. Lund went home broken. Two Canadians won gold and silver in skeleton.
After his suspension, Lund rebounded to win the 2007 Skeleton World Cup title. Then, at the beginning of the 2008 season, WADA announced it was removing finasteride from its list. Instead of acknowledging the possibility that finasteride shouldn’t have been banned to begin with, it issued a statement claiming that WADA-affiliated labs had created new techniques that rendered it ineffective as a masking agent. The details of those tests were not divulged.
WADA said no to Lund’s subsequent request that his record be cleared. This means that if Lund should fall afoul of WADA’s rules again, he could be banned from the sport for life, even prevented from coaching.
Lund remains bitter about it all.”That was a kick in the gut,” he says during our dinner. WADA, he says, “has no one to answer to, and they’re taking down honest people. And the government doesn’t care.”
OVER THE PAST FEW YEARS, so many famous athletes in so many sports have been ensnared in drug scandalscyclists like Tyler Hamilton and Floyd Landis, track stars like Marion Jones and Tim Montgomery, baseball players like Alex Rodriguezthat it’s tempting to roll your eyes anytime some jock claims he or she was done wrong.
But Lund raises issues that need to be heard, and he’s right about one thing: The U.S. government doesn’t care about addressing the legal rights of accused sports dopers. More than a year ago, it endorsed a plan that allows officials in other countries to test, judge, and punish American competitors using a system that, strangely enough, is fully independent of the legal protections offered by U.S. courts.
On May 22, 2008, then-Senator Joseph Biden convened a hearing of the Senate Foreign Relations Committee. The International Olympic Committee (IOC) had recently announced that any country that hadn’t ratified a United Nationssponsored treaty called the International Convention Against Doping in Sport could not host the Olympics. Ever. At the time, Chicago was bidding for the 2016 Summer Games, and it was an election year, so the issue got rapid attention.
The treaty obligated the U.S. to recognize the authority of WADA, along with the justice system that adjudicates WADA’s rules, but the hearing itself was cursory. Biden and his Republican minority chair, Indiana senator Richard Lugar, heard from only four witnesses: Scott Burns, deputy director of the White House Office of National Drug Control Policy; Joan Donoghue, principal deputy legal adviser in the State Department; Travis Tygart, CEO of USADA; and Jair Lynch, a 1996 Olympic gymnast and a member of the U.S. Olympic Committee (USOC). All favored ratification.
The Senate stamped its approval and President George W. Bush signed the treaty in August. The signing didn’t make much news; cracking down on drug cheats in sports was hardly controversial. But it was a major step. It was as if the federal government had supported a system that allowed a private organization, ruled from abroad, to decide who is eligible to run for political officewithout allowing these people the right to appeal to U.S. courts if they think they’ve been mistreated.
The anti-doping system the senators endorsed had been created nine years before, in 1999, when the IOC, shocked into action by the drug-plagued 1998 Tour de France, calved off its own drug-testing operation into WADA, an outfit it created. Half of WADA’s membership comes from the IOC and half from representatives appointed by national governments. WADA makes rules about which drugs to ban, how to test for them, which labs to use, and, if the results are challenged, how to solve legal disputes in another IOC-created body, the CAS. These rules make up WADA’s Code, always capitalized. WADA calls itself “guardian of the Code.”
Of course, as a collection of private sports organizations, WADA, USADA, the IOC, USOC, and CAS are not policemen, elected governments, or real courts of law. They have only two weapons they can use to impose their will: shame (leveling charges that countries or sports federations are soft on doping) and the very big stick that is the Olympics. They employ both to bend sports and governments to their will, giving WADA’s edicts real teeth.
Such tactics have been so effective that WADA now has authority over almost every international sport; North American professional leagues in football, baseball, basketball, and hockey are still holding out. This means that if you want to participate in most sports at a top leveleverything from chess and darts and tennis to downhill skiing and triathlon and rugbyyou are ruled by the Code.
And yet, when the senators held their hearing, no active athletes spoke. No lawyers who have represented athletes in doping cases testified. During the discussion, there wasn’t a single question about the rights of the people under WADA’s sway.
THE MUFFLED HEARING meant that the senators missed out on a loud chorus of dissent from many lawyers, athletes, and testing experts who believe, like Lund, that WADA has become an arrogant, powerful body that sometimes relies on dubious science, ham-handed tactics, and a twisted version of justice in the war on doping.
Such criticisms don’t come solely from athletes. Lacey A. Collier, a federal judge in Florida, called the anti-doping system “arbitrary and capricious” during 2008 proceedings involving track star Justin Gatlin, who argued that his use of a drug for attention deficit disorder should be allowed under the Americans with Disabilities Act and the Rehabilitation Act of 1973. Collier agreed but concluded he had no jurisdiction, lamenting that “the United States courts have no power to right the wrong being perpetrated upon one of its citizens.”
Bob Stewart, a sports-and-doping expert at Australia’s Victoria University, levels a more inflammatory charge. He compares the actions of his nation’s anti-doping agency, the Australian Sports Anti-Doping Authority (ASADA), to those of the old East German secret police, the Stasi.
That sounds like quite a stretch, but ASADA has reportedly hired teams of private investigators to mount covert and overt surveillance operations against athletes, trainers, doctors, and coaches. It has also been exploring the creation of psychosocial profiles of athletes who can then be target=ed. Last year, it requested, and was granted, access to the private medical records of approximately 900 athletes held by the country’s national health service, so it could fish for suspicious prescriptions. When this story was broken by Sean Parnell, a reporter for the newspaper The Australian, ASADA, which had yet to receive the records, insisted it had every right to them but then backtracked.
What happens in Australia is important because ASADA is held up by the IOC and WADA as the model that other nations should emulate. In response to that pressure, the United Kingdom recently created a new agency called UK Anti-Doping, to be run by a former chief constable, David Kenworthy. UKAD will work in much the same way as ASADA.
Meanwhile, in 2009, WADA adopted a beefed-up version of a controversial, far-reaching policy known as “Whereabouts.” Under it, elite athletes have to tell a central authority where they will be at every hour of every day, whether they’re on vacation, at home, in another country, in season, or out of season. If their plans change, they have to notify the authorities. All this information is uploaded to a central database.
Under this system, an athlete can be surprise-tested anytime, anyplace. In 2008, in Lochristi, Belgium, road cyclist Kevin van Impe was meeting with a funeral director to make arrangements for his infant son, Jayden, when a dope tester arrived and demanded that van Impe provide a urine sample for an out-of-competition test. When he asked permission to give it later, the official threatened him with a two-year ban.
As Norwegian doping-and-sports researcher Dag Vidar Hanstad has written, “There are…two groups who have such obligations: some convicted felons who are to be controlled before or after serving their sentence, and elite athletes.”
“It’s crazy,” tennis star Rafael Nadal told Agence France-Presse last summer. “That is, to know where you are every single moment of your life, and to account for this…. I don’t think this is a right thing to do. It’s wrong.” Nadal has gotten support from, among others, Serena Williams, a group of Belgian athletes who filed a suit citing European human-rights law, and Indian cricket players who’ve refused to go along, citing safety and privacy concerns.
Unfortunately, failure to comply with Whereabouts can ruin your livelihood. Early last November, U.S. Open tennis semifinalist Yanina Wickmayer was banned from competition for one year for failing to keep doping officials apprised of her movements.
If athletes express concern over such power, WADA is likely to suggest they’re concealing something. In 2006, the IOC and WADA announced support for the concept of sports federations collecting athlete DNAsimilar to how the FBI collects and stores DNA from felons. WADA’s director general, New Zealander David Howman, dismissed any objections to this. “You can hide anything in the balloon that is civil rights,” he said, “but if you don’t have anything to hide, why not come forward?”
Some people see that as glib, arguing that WADA really does infringe on the civil liberties of athletes. “There seems to be an assumption that, because you take part in sport at a particular level, you somehow have a responsibility to give up rights,” says Michele Verroken, a sports consultant who ran the UK’s anti-doping efforts for many years. “That’s an argument WADA puts forward, and it is very difficult to object to it without being considered to be against the principle that sports should be drug-free.”
Both WADA and USADA reject such criticism. Dick Pound, who still serves on WADA’s Foundation Board, acknowledges that “there are objections that get wrapped in principle.” But, he says, “if you dissect them, the principle here really is what are reasonable expectations of privacy, and it is a low expectation.” The agencies prefer to talk about Tyler Hamilton, Marion Jones, and steroid maker BALCOdeceptions that, they say, prove the system doesn’t endanger rights; rather, it protects athletes who want to compete cleanly. Some athletes, such as tennis champion Roger Federer and ex-swimmer Janet Evans, agree. Discussing Whereabouts just before the 2009 Australian Open, Federer said, “I know it’s a pain, but I would like it to be a clean sport, and that’s why I’m OK with it.”
There is little doubt that both organizations have altered what was once a wink-and-a-nod tolerance for drug use in sports. Even notorious sports like cycling and track and field are widely believed to be cleaner now. But the price being paid for the progress is rarely explored, and the voices of athletes like Lund, and the lawyers who help them navigate the anti-doping system, are rarely heard. They say that, while the system has done good, it is itself becoming dangerous.
The agencies counter that they are diligent custodians of rights and law. The science they use to establish the list of banned drugs, and to conduct and interpret the drug tests, is so sound that it’s virtually flawless, they say. The arbitration process is bend-over-backwards fair. Extraordinary measures like Whereabouts are justified because sports have a special stature in the world.
“The issue in relation to civil rights is one we have always been careful to follow,” Howman tells me. “If it is pointed out that we are, or have been [violating rights], then we would look to change.
“What we are saying, however, is that it is a very easy thing for somebody to say you have breached my human rights or civil rights. But it is not so easy for that person to say where and how.”
AS IT TURNS OUT, Lund and his lawyer were right about finasteride: It probably never should have been banned. WADA based its original listing on a single experiment it funded in 2002, which was conducted on just five volunteers in a German doping lab. The experiment wasn’t conclusive, and the directors of some of WADA’s own approved testing labs later insisted that finasteride wasn’t a masking agent.
Jacobs asked one of them, Dr. Don Catlina world-renowned testing expert who at the time ran the WADA-approved UCLA Olympic Analytical Labto testify on behalf of Lund in Turin. Catlin agreed.
Later, in testimony before the panel judging the charge that Floyd Landis had used synthetic testosterone during the 2006 Tour, Catlin agreed that WADA officials had given him “a lot of grief” in Turin. “It was just made very clear to me that it was probably not a good idea for me to do this,” he said.
“And…your testimony was basically that [finasteride] wasn’t a masking agent, right?” a Landis attorney asked.
Howman insists that just “one or two” lab directors shared Catlin’s view, but Verroken says others “were too afraid” to challenge WADA on finasteride, because, in a clear example of conflict of interest, the labs rely on WADA’s accreditation to stay in business.
Such a move is consistent with past practices. In 2002, WADA received part of a report it commissioned on the test for the blood-oxygen booster erythropoietin (EPO) and expected a second and final part to arrive soon. The partial report pointed out potentially serious flaws in the test. IOC medical director and WADA-executive-committee member Patrick Schamasch wanted it hidden, because the IOC was in the middle of prosecuting EPO cases from the Salt Lake City Games. That idea made WADA chief Dick Pound uncomfortable. Instead, he suggested, WADA should arrange to get the full report after the EPO case decisions had been rendered. “It would be better not to have the information at the time the decision was rendered,” he said.
In 2007, Danish scientist Carsten Lundby, a highly regarded hematology expert, conducted a study that documented the performance of WADA’s detection methods for EPO, showing a high prevalence of false negatives and one probable false positive. WADA attacked both Lundby’s study and his personal ethics, with one WADA lab director calling his work “pseudo-scientific.” Lundby came away from the experience feeling that “political issues weigh more heavily than scientific facts.”
In 2008, Donald Berrya biostatistician who works at the M.D. Anderson Cancer Center, in Houstonpublished an analysis in the journal Nature showing a high risk of false positives from WADA-approved testing. The anti-doping agencies, he told me then, “don’t know what they’re doing.” He expected his paper would cause controversy, and that he would “hear from anti-doping agencies about…persuading me of the errors of my ways.” He heard nothing. “I suspect they’re hoping that if they ignore me I’ll just go away,” he says.
Yet some countries, like Greece and Italy, now threaten to send people to jail if they fail a WADA-approved doping test or don’t cooperate with doping agencies. Greek race-walker Athanasia Tsoumeleka, for example, is currently facing up to two years in prison for failing an EPO test. Austria is considering a law that would treat sports doping as fraud, mandating prison terms of up to ten years.
When an athlete successfully challenges WADA, the agency often retaliateseven if it has to change its own rules to lessen legal protections. When law professor Mike Straubel and his students at Valparaiso University’s sports-law program defended sprinter LaTasha Jenkins in 2006, they discovered that both Jenkins’s A sample and her confirmatory B sample were processed by the same technician, a direct violation of a WADA rule meant to assure that a lab worker could not cover up a mistake. In light of an obvious violation and because of the strange readings from the tests, CAS exonerated Jenkins in 2008, though her career had been destroyed by then. That September, citing the loss in the Jenkins case, WADA changed the rule.
Critics of the system argue that CAS itself is rife with conflicts of interest and heavily favors the anti-doping agencies. Even so, WADA has moved to prevent athletes from exercising their right to fight charges. The most recent revision of the Code includes a provision to increase the length of banishment due to “aggravating circumstances.” An athlete can avoid this by admitting “the anti-doping-rule violation as asserted promptly after being confronted.”
Such tactics are one reason University of Baltimore law professor Dionne Koller believes it is “difficult, if not impossible, for athletes to meaningfully defend themselves.”
As in Lund’s case, the agencies also have a history of severely punishing people who fail tests but weren’t cheating. In August 2008, U.S. swimmer Emily Brunemann was visiting her parents in Kentucky when she became constipated. She took what she thought was a laxative, which she found in her mother’s bathroom. It was actually a diuretic, a banned substance, and when she was tested soon afterout of season, when she wasn’t competingshe came up positive.
USADA pushed for a two-year suspension from swimming, which could’ve cost Brunemann her college scholarship and any chance of competing in the London Summer Olympics in 2012. Her family spent tens of thousands of dollars to fight the chargeson the grounds that she’d made an honest mistakefinally persuading an arbitration panel to reduce the penalty to six months.
Brunemann’s case isn’t unique: WADA’s anti-doping system often turns up athletes who have banned substances in their systems but who clearly weren’t trying to cheat. A 2008 analysis by researcher Babette Pluim in the British Journal of Sports Medicine showed that, of the 40 doping cases involving tennis players between 2003 and 2007, 68 percent weren’t trying to cheat and received no performance boost. One athlete, a wheelchair tennis player, was penalized because she’d faxed a therapeutic-use exemption to the wrong number. Two were rapped for using finasteride.
Marijuana, which doesn’t enhance performance, is at the heart of more doping cases than any other single banned substance. Many critics inside and outside of WADA want marijuana removed from the list, but it remains there at the insistence of the United States government, as part of its war on drugs.
WADA argues that it listens to criticisms and, partly inspired by Lund’s case, has changed the Code. Now, if an athlete can prove what WADA calls “no significant fault,” he or she might get away with the kind of public rebuke that USADA offered Lund in the first place.
Whether Lund himself would get that deal today is questionable. “Zach committed a gross mistake,” says USADA head Travis Tygart. “He was significantly negligent in failing his duty as a clean athlete.”
THE DAY AFTER HIS TV blitz, Lund leans across a table in a Mexican café and makes a request: “Ask your readers how they would feel about telling someone where they are every hour of every day.” Last year, when Lund was trying to fly standby, he reported his plans in accordance with Whereabouts, but then the airline called with a sudden seat opening and he forgot to refile. Lund tried to explain, but USADA refused to budge. Two more Whereabouts failures like that within 18 months and his career could be over.
In response to Lund’s question, some will answer that, because of their stature and the rewards they receive, athletes need to suck it up and tolerate measures that people in other professions would never accept. Bioethicist Thomas Murray, president of the Hastings Center think tank and a WADA adviser, endorses this argument. Sports, he says, occupy a unique place in our culture.
But what if the Codealong with WADA’s way of doing businessstarts leaking out of sports and into your life or the lives of other citizens? A few legal scholars and sports-doping experts worry that this is exactly what’s happening, that in our zeal to preserve what amounts to a private, multinational sports-entertainment business, we risk sacrificing some of our own liberty.
This is already true in some other countries, as the example of ASADA’s alleged spying illustrates. WADA has signed an information-sharing agreement with Interpol, the international police agency, and has encouraged national-level anti-doping agencies to work with law-enforcement authorities in each country. The anti-doping treaty calls for this.
The United States has embraced the idea. At the same time that the government was trying to jail two San Franciscoarea reporters, Lance Williams and Mark Fainaru-Wada, for refusing to say where they’d obtained leaked grand-jury evidence related to Barry Bonds and BALCO, the government was giving USADA, a private group, 9,300 pages of BALCO evidence. Evidence flows the other way, too. Athletes’ biological samples or testimony can be turned over to the police in any country without the athlete ever knowing it. USADA insists that it can have CAS subpoena any U.S. citizen. Tygart says he would like to have a team of investigators, just like ASADA’s.
Yet because USADA is not officially a part of the U.S. government, it is not obligated to grant the same due-process rights guaranteed to U.S. citizens by the Constitution. This ability to skirt safeguards is why some American legal experts argue that USADA has become a “stalking horse” for law enforcement. For example, according to the Code, an anti-doping organization may “suspend a part of the period of ineligibility imposed in an individual case where the athlete or other person has provided substantial assistance to an anti-doping organization, criminal authority, or professional disciplinary body.” In other words, the anti-doping agencies can use the threat of career loss to force an athlete to give cops evidence against another person. Pepperdine University law professor Maureen Weston calls this co-dependency of state power and anti-doping agencies “intertwinement.”
“This claim to be a private entity when it is hand in glove with governmental agencies and governmental power?” says University of Texas Olympic-and-doping scholar John Hoberman. “Really, who do they think they’re kidding? It plays politically because everything seems to be in the service of the war on drugs.”
Lund, who, despite everything, favors dope testing in sports, calls the current system “a witch hunt.” He’d like to fight back, to stand up for athlete rights. But Lund shares a problem that many of us, including the U.S. Senate and governments around the world, share: He is still moved by the Olympic dream, and he is willing to put up with anything to fulfill it.
As we drive west down Sunset Boulevard toward the sea, he shows me a benign tumor the size of a golf ball on the back of his neck. He got it from all the pounding he takes on the skeleton. He has a poor memory from what he jokingly calls “shaken adult syndrome,” along with recurring headaches. He pops Excedrin like Pez.
At one point, he lifts his sleeve. A full-color set of Olympic rings is engraved on his deltoid. His family insisted he get the tattoo after returning from Turin, saying, “You are an Olympian. That’s not something they can take away from you.” There are the mental scars, too, like his mom’s death, the sound of her voice encouraging his Olympic ambition as she was dying. All these are badges testifying to his devotion.
If Lund makes it to Vancouver, he tells me, he’ll come back and get another tattoo: a rising phoenix with the Olympic motto, “Citius, Altius, Fortius,” and not “Life, Liberty, and the Pursuit of Happiness.”