NY Times: USADA seeking to depose Dr. Brown, hearing to be held July 11

How did you find that? Great work. I was thinking of emailing Jere Longman and trying to get that doc but have been busy with Trials stuff.

And a few points: Alberto did not get USADA's permission for the androgel test. He notified USADA he was worried about sabotage. From my reading he did not notify them of his experiment.

I think the experiment is a doping violation but a) it is admitted and b) USADA has done nothing.

That means a)they are trying to go for more serious charges or b) It's not a violation.

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In terms of Dr. Brown I'm surprised USADA can make him testify, but really glad they are doing this. Doping needs to be criminalized in the US and I wouldn't have my questions below.

1) What crime is being committed? If there is a crime it would seem to be by Dr. Brown.

2) Couldn't Dr. Brown just plead the 5th or say there are medical privacy issues?

Lawyers help me ot.

wejo wrote:

I think the experiment is a doping violation but a) it is admitted and b) USADA has done nothing.

That means a)they are trying to go for more serious charges or b) It's not a violation.

or c) it's a violation and they aren't in the business of taking action unless they absolutely have to.

The USADA & Crime wrote:

What exactly does Dr. Brown have to lose? Except for a few narrow situations, it's not a crime to lie to the USADA, since the USADA is not part of the government.

Bingo. USADA is an NGO. No criminal authority. Dr. Brown tells them to go pound sand and that's the end. If you think Dr. Brown is losing his license over this one, that's not happening either.

NCAA/BC$/NFL/MLB would have a panic attack if there were real consequences to doping athletes. IOC already defends any little attempt to criminalize doping all over the world.

OR, Magness and KG know more then they've told the public BECAUSE they were patients. Ever think of that? USADA says they have patients willing to have Dr. Brown talk, but he won't. Just a thought.

- The Texas rule cited in USADA's petition is very broad - the broadest in the nation when it comes to pre-suit depositions, according to some commentators. It authorizes pre-suit depositions in two circumstances: (1) to preserve testimony in anticipation of a lawsuit; and (2) to investigate a potential claim or lawsuit. USADA says in its petition that it is investigating a potential claim our lawsuit. It also says that it is resorting to petition under Rule 202 because Dr. Brown has been uncooperative.

- As to the fifth amendment question, I have not researched this issue lately, but questions involving the fourth and fifth amendment (along with the 14th) did come up during the BALCO and Lance Armstrong cases. At that time, USADA (and Tygart in at least one law review article that I recall) took the position that USADA is not a federal agency or state actor. If that is the case, then Dr. Brown may not enjoy the 5th Amendment's privilege against self-incrimination in a USADA (not DOJ)-initiated proceeding.

Just saying, but rekrunner called out Lance as a guilty doper when most on this forum were still using "most tested athlete," "witch hunt," etc. to defend Lance.

He doesn't post often, but he's smart, insightful, and doesn't appear to post opinions based on emotion.

pop_pop!_v2.2.1 wrote:

The USADA & Crime wrote:

What exactly does Dr. Brown have to lose? Except for a few narrow situations, it's not a crime to lie to the USADA, since the USADA is not part of the government.

Bingo. USADA is an NGO. No criminal authority. Dr. Brown tells them to go pound sand and that's the end. If you think Dr. Brown is losing his license over this one, that's not happening either.

NCAA/BC$/NFL/MLB would have a panic attack if there were real consequences to doping athletes. IOC already defends any little attempt to criminalize doping all over the world.

This is an old argument that is being tested in a way that is slightly new to me. Tygart has said before that he has the ability to ask the court to issue a subpeona for arbitration panels, swear you in, and if you lie or refuse to cooperate you will face perjury or contempt of court. This is a new legal tactic where I don't know what the consequences would be for someone like Dr. Brown. USADA thinks they can force him to answer questions under oath before an actual trial. I don't think he is going to lose his license ultimately for grey area crap, but he clearly has a reason to hide. Even Alberto spoke to USADA? Why the hiding?

Note that rekrunner =/= rekrun-n-nerApparently I've posted too much, and attracted some copycats.Regarding Salazar, he probably broke some laws, but not anti-doping rules.Best thing that can happen from USADA is probably a rule change, or to forward evidence to the proper authorities.Some might find irony in this, but what convinced me Lance was dirty was an interview between Andy Shen and Michael Ashenden, because there was convincing test results. (Ashenden didn't convince me about Paula, because he actually didn't try -- he was concerned with the IAAF, and not individual athletes.)

non O wrote:

rekrunnner wrote:

...

Just saying, but rekrunner called out Lance as a guilty doper when most on this forum were still using "most tested athlete," "witch hunt," etc. to defend Lance.

He doesn't post often, but he's smart, insightful, and doesn't appear to post opinions based on emotion.

If Brown doesn't cooperate, he'll get a lifetime ban like Lance's docs did right off the bat. I can't see how that will be good for business.

USADA has multiple athletes saying that they went into his office and after little to no means of diagnosis, they got a prescription for thyroid meds and other drugs. It's also likely that this "Dr" signed a few TUE's for Rupp et al. If they prove those were fraudulent, Brown will go down.

AND, the USADA should rescind the TUEs. Because they were obtained for a banned doctor the athletes would have to get a TUE. A new TUE would require second opinion approval from different doctor the USADA would chose.

Should be easy to find another doc on my Nike payroll. Plus all they have to do is run up stairs to get those asthma meds, amiright?!?!

Phil Knight wrote:

Should be easy to find another doc on my Nike payroll. Plus all they have to do is run up stairs to get those asthma meds, amiright?!?!

Phil, you'll have to figure out how to payoff the independent doctors the USADA would use to render second opinions. If a pool of doctors chosen randomly is used, then you have a lot of doctors to payoff.

I googled: USADA court filing depose Brown. It was the second or third hit.

That may be a stretch. The prohibitions in Article 2 of the WADA Code are narrowly and specifically worded. Most of them don't apply to the experiment: 2.1-2.5 specify the procedures used to test blood; 2.7 & 2.8 prohibit trafficking and administering dope; 2.10 prohibits hanging out with dopers. Since none of these apply to AlSal, that leaves 2.6 and 2.8.

2.6 says a coach can have dope if he has "an acceptable justification." AlSal having an Androgel prescription for his own use be an "acceptable justification." Having an Androgel prescription so he could test it on his kids, is not an "acceptable justification."

Since Dr. Brown was involved in the experiment, maybe they want to talk to him about the experiment.

2.8, "Complicity," which is fairly broad, might apply to the experiment. It prohibits:

Assisting, encouraging, aiding, abetting, conspiring, covering up or any other type of intentional complicity involving an anti-doping rule violation, Attempted anti-doping rule violation or violation of Article 10.12.1 by

another Person.

If the USADA can show that the goal of the experiment find out how much Androgel could be given without failing a drug test, then it might find AlSal complicit in the doping violation of using Androgel. ,

As I pointed out, they can only make him testify in Texas, since it is the only state that allows pre-suit depositions for "investigations."

1) The USADA does not do crimes, and depositions are not about crimes, so it has to have something to do with a potential suit by the USADA.

2) Under Texas law, the USADA does not have to say what suit they are thinking of filing. So Dr. Brown might have to testify without knowing what was being investigated.

[quote]wejo wrote:

Couldn't Dr. Brown just plead the 5th or say there are medical privacy issues?[quote]wejo wrote:

According to the USADA's filing, Dr. Brown has refused to talk about patients who have given the USADA permission to talk to him about their conditions. So they want the court to compel him to talk to the USADA.

Even though this is a civil case, Dr. Brown could assert his rights under the 5th Amendment. Since this is a civil, not a criminal, case, those rights might play out differently.

Remember, the statute of limitations for most crimes is five years or less. However, the statute of limitations for doping violations is ten years. So it could be that even if Dr. Brown broke the law, he couldn't be charged, whereas AlSal could be punished for violating the doping codes.

Anon wrote:

As to the fifth amendment question, I have not researched this issue lately, but questions involving the fourth and fifth amendment (along with the 14th) did come up during the BALCO and Lance Armstrong cases. At that time, USADA (and Tygart in at least one law review article that I recall) took the position that USADA is not a federal agency or state actor. If that is the case, then Dr. Brown may not enjoy the 5th Amendment's privilege against self-incrimination in a USADA (not DOJ)-initiated proceeding.

You are right. But if the USADA was just doing its usual thing, it could not get a court to allow it to depose Dr. Brown. So instead, the USADA claims they deposing Dr. Brown as part of the discovery for a civil suit. He, like a witness in any civil matter, could claim the Fifth.

As several posters have pointed out, because the USADA filed in Texas, they can use the very broad pre-suit deposition powers granted under the Texas Rules of Civil Procedure. This is only possible in Texas; no other state or federal court allows investigatory depositions.

TUE Erased wrote:

AND, the USADA should rescind the TUEs. Because they were obtained for a banned doctor the athletes would have to get a TUE. A new TUE would require second opinion approval from different doctor the USADA would chose.

Do we know whether Dr. Brown helped runners got TUES?

He's Dr. Thyroid, and thyroid meds do not require a TUE.

So, theoretically, they don't have to say what sort of suit they are investigating? What potential suit or action would it be? I am assuming that Dr. Brown's attorneys will be able to object and raise this argument...and USADA will have to have some sort of plausible potential claim??

Honestly it feels like abuse of process to me. I don't see what potential claim they could make up. I don't like that procedural rule very much, seems to invite way too much harassment and fishing expeditions.

rekrunner wrote:

Some might find irony in this, but what convinced me Lance was dirty was an interview between Andy Shen and Michael Ashenden, because there was convincing test results.

Jeremy Whittle's book did it for me. (A great read, even for people who aren't interested in cycling.)

USADA alleged a possible claim against Dr. Brown but did not provide any indication of what that claim might be. Apparently they did this to try to make it impossible for Dr. Brown to appeal. I also do not see what legal claim USADA might have against Dr. Brown, and would expect Dr. Brown to oppose on that basis. If he can show there could be no USADA claim against him, that would also preserve his right of appeal.

I am not licensed in Texas, so I just looked quickly online for info on Rule 202 from Texas firms. Among the info which came up, the following link provides some explanation on how the rule is applied:

http://www.sutherland.com/portalresource/S.JordanPPT-11.1.12.pdf

Application of the rule looks like a confusing and unfair Texas mess to me.

cleans wrote:

rekrunner wrote:

Some might find irony in this, but what convinced me Lance was dirty was an interview between Andy Shen and Michael Ashenden, because there was convincing test results.

Jeremy Whittle's book did it for me. (A great read, even for people who aren't interested in cycling.)

He tested positive in 1999. That did it for me, no matter whether UCI illegally accepted the backdated TUE.