LRC Exclusive: The latest on USADA's investigation into Alberto Salazar's Nike Oregon Project

So the short of it is that USADA has new evidence. They still want Brown's deposition.

The case isn't at the point of considering or evaulating evidence from wither side.

The judge is only ruling whether USADA can compel Brown to testify. USADA has no jurisdiction, as Brown is not an athlete, coach, etc, that is under USADA's authority.

To point to the Armstrong legal story, this mirrors early battles, of which Armstrong said USADA didn't have jurisdiction to pursue a case. Indon't remember the details.

But here, the big difference is not whether the case can move forward; it theoritically could without testimony from Dr. Brown. And it seems that USADA won't be able to win this battle, trying to force Brown to testify.

Which points to the bigger issue of NADO authority. Only in the last year has WADA done anything to bring accountability of support personnel to the athlete, by prohibiting association with banned individuals. But as we see with Aden's case, Dr. Brown, "banned" Russian Coaches still coaching, or even the Virginia throws coach saga, their power is so limited. Doping goes far beyond the athlete, and as long as they have their own butt covered, their coaches, managers, and doctors can't be touched.

I'd like to see some precident established for USADA to have authority to depose these supporting roles, but in the context of this case, with medical privacy being such a big factor, I don't see it happening.

Mr. Obvious wrote:

Thanks for the update.

Honestly as much as I want to see a cleaner sport, I support not granting USADA's petition. It is an abuse of the rules of the court.

I'll add my thanks as well.

We're not privy to all the evidence presented, obviously (ha!), so we really don't know whether the requirements of 202 have been met. Regardless, I think this case underscores - again - why doping should be a criminal offense. If it were, this whole business would likely have been fully adjudicated already and the guilty (I believe) would be where they belong: prison.

Link wrote:

Mr. Obvious wrote:

Thanks for the update.

Honestly as much as I want to see a cleaner sport, I support not granting USADA's petition. It is an abuse of the rules of the court.

I'll add my thanks as well.

We're not privy to all the evidence presented, obviously (ha!), so we really don't know whether the requirements of 202 have been met. Regardless, I think this case underscores - again - why doping should be a criminal offense. If it were, this whole business would likely have been fully adjudicated already and the guilty (I believe) would be where they belong: prison.

No, I obviously don't know because I haven't seen all of the evidence but I am making my best judgement based on reports about it and the filings. There is no potential suit proposed and there does not seem to be anywhere near enough evidence to initiate one. It just feels and smells like a fishing expedition. I think Dr. Brown is entirely correct that this is just to try to force him to testify about other matters.

I honestly disagree w/ you on doping being a criminal offense. We've been trying that approach with recreational drugs for a long time and it is a horrible public policy disaster. I see no reason to extend that into the realm of performance enhancing drugs. I do understand it would make some actions easier, but I feel the cure is worse than the disease.

“I’m not making findings in this case and I don’t think Rule 202 is an evidentiary hearing,” Gomez said towards the closing of the July 18 hearing. “I assume for the sake of argument that everything you say is true. The question is to me is that it’s not about the underlying merits, it’s about jurisdiction, it’s about arbitration, it’s about whether or not the benefit outweighs the burden.”

http://www.letsrun.com/?p=120132

Like you say, a lot of the problem with the US's War on Drugs is public policy, which has been dialed back to some degree. Just like other cases of other drug or doping laws in other countries shows, it is a matter of executation and implementation.

But I don't want to derail the thread...

The new glimpse of evidence against NOP is having an athlete shuttle Testosterone from Dr. Brown. It sounds like IV use is detailed a little more in USADA's file than we have gotten in public.

There was a thread about athletes going to Dr. Brown. Did we get a long list put together? Is it worth speculating who the seven athletes are who okayed the release of their information?

Thanks for this update, rojo. Interesting stuff, and I look forward to reading more.

Also, just to get an early jab in, I predict this thread will devolve into a "NOPers gonna dope" shltshow by mid-afternoon today.

You have to think that the Gouchers are two of them.

And maybe, if I need a break later on, I'll start another thread in which we can debate the merits of criminalizing PEDs, so as not to derail this one.

So, that aside, here's another question, I think that's worth digging into: A 'team' of lawyers is expensive - even for a doctor. I wonder who's paying Brown's?

Link wrote:

Mr. Obvious wrote:

Thanks for the update.

Honestly as much as I want to see a cleaner sport, I support not granting USADA's petition. It is an abuse of the rules of the court.

I'll add my thanks as well.

We're not privy to all the evidence presented, obviously (ha!), so we really don't know whether the requirements of 202 have been met. Regardless, I think this case underscores - again - why doping should be a criminal offense. If it were, this whole business would likely have been fully adjudicated already and the guilty (I believe) would be where they belong: prison.

Good post. I'd love to see doping criminalized for professional sports. One thing I was wondering was this whole hearing perhaps an attempt to just get noticed. Maybe someone with subpoena power the piece in the NY Times and gets interested.

Anyways, we now have a 2nd piece up where a lawyer gives his analysis of the ruling.

If you read that, you'll see that the judge basically is thinking "This isn't a matter for Texas courts so why would I force this guy to testify under oath."

Here's what the lawyer says:

"The Houston doctor refused to cooperate with USADA’s investigators. He would not answer any questions or produce documents voluntarily. Bearing in mind the lack of subpoena power, USADA tried to circumvent its limitations by filing a Rule 202 request in Texas against a Texas-based doctor. The Judge in the Texas State Court realized this and saw that USADA was not going to be filing any lawsuit against the doctor, or anyone for that matter in the Texas state court. USADA is merely out to investigate any potential violations of the doping codes. At best, there may be an arbitration.

The Judge denied the petition and it is highly unlikely that any appeals court would overturn that decision"

Clerk got banned wrote:

Like you say, a lot of the problem with the US's War on Drugs is public policy, which has been dialed back to some degree. Just like other cases of other drug or doping laws in other countries shows, it is a matter of executation and implementation.

But I don't want to derail the thread...

The new glimpse of evidence against NOP is having an athlete shuttle Testosterone from Dr. Brown. It sounds like IV use is detailed a little more in USADA's file than we have gotten in public.

There was a thread about athletes going to Dr. Brown. Did we get a long list put together? Is it worth speculating who the seven athletes are who okayed the release of their information?

So, there may be testimony athletes gave about Dr. Brown asking them to transport testosterone. That would not be relevant to the purpose for which Dr. Brown was asked to testify, which is to corroborate and explain his notes. It would possibly reach into areas of criminal conduct (for which he could not be compelled to testify) and would also involve him testifying about other individuals, athletes or coaches, who have not waived their privacy rights.

So, I don't see where these allegations are relevant to the purpose that USADA actually states in their petition. Again, it seems like a fishing expedition.

Dr. Brown is not under any sort of USADA jurisdiction. There is no action or potential action pending against him. USADA states that it may have potential action (but it is arbitration, not a lawsuit) against a third party. He is not at this point been demonstrated to be any sort of risk to alter or destroy evidence.

It doesn't sound like any of this is a compelling rationale for an extraordinary request of a pre-filing deposition. If USADA has a case, they can file the case and then they could depose Dr. Brown (there would still be things that would be off limits). As a procedural matter, yes, if this was criminal this would be different because police and prosecutors could compel depositions, but this is a civil action.

We get you up to date after this week's court hearing was held try to force Dr. Jeffrey Brown to testify about his treatment of many elite athletes, seven of whom have given their permission for him to share the details of their treatment.

http://www.letsrun.com/?p=120132

We have published a 2nd article where a lawyer gives his thoughts on the legal developments:

http://www.letsrun.com/news/2016/07/legal-analysis-5-takeaways-usadas-attempts-force-nops-endocrinologist-give-deposition/

It seems to me that there may be sufficient evidence to get the AMA involved. The story Salazar tells about his son and androgel and consulting with Brown seems like it could be a violation of ethics. (I don't know much if anything about the AMA code of ethics - just thinking in print here..., but transporting testosterone to be administered without a formal prescription seems like it could be a violation as well. Anyone here with some expertise in medical code of ethics and what the AMA might or might not be interested in doing?

You're right, and well explained. It's just that this fishing expedition is one I want USADA to go on. Like I said earlier, and now as an echo to the second LRC piece, I don't think it will work.

Link wrote:

It seems to me that there may be sufficient evidence to get the AMA involved. The story Salazar tells about his son and androgel and consulting with Brown seems like it could be a violation of ethics. (I don't know much if anything about the AMA code of ethics - just thinking in print here..., but transporting testosterone to be administered without a formal prescription seems like it could be a violation as well. Anyone here with some expertise in medical code of ethics and what the AMA might or might not be interested in doing?

Well,

Not an expert in this area. I think it is far more likely that the state department of licensing would be involved than the AMA. (licensing works closely with the state medical associations, usually).

I am just not sure this rises to the level of concern that they would be all that concerned with. Maybe it should, but such departments are usually pretty low on resources and so look for things that affect a large number of people or cause injuries or deaths.

As well, panels of physicans are generally willing to give wide, wide discretion to other physicans to practice as they see fit, again as long as they aren't harming anybody.

The level of offense here is so low in comparison to the real world consequences of everyday medical practice it is probably not going to get a whole lot of attention. Who knows, USADA is pretty connected, so maybe they can get somebody to pay attention.

Steve Horn wrote:

This would leave USADA with a choice to appeal to a higher court, find a different venue to attempt to compel Brown to testify under oath or give up on trying to do so altogether.

http://www.letsrun.com/news/2016/07/documents-audio-offer-lens-inside-nike-oregon-project-doping-investigation/

There is no other venue. Texas Rule 202 is unique. Texas is the only state that allows people to be deposed as part of the investigation into whether or not to file suit. In every other states, investigatory depositions come after the suit is filed. In the words of one Texas lawyer, "only in Texas can you be sued so someone can find out if he can sue you."

As has been mentioned, the legal strategy is to get Dr. Brown under oath so he can be threatened with perjury. This seems like a desperation move.

The details of the Texas rule were discussed at length in an earlier thread:

I should have read the second article before posting. In it the author seems to cover pretty well whether the AMA could become involved to productively further USADA's investigation.

It seems the problem is that USADA (and, many of the other 'ADAs') powers are so circumscribed as to render them essentially toothless. This is a point I think pop pop has made many times on other threads. It's also something that I myself have not fully understood - I guess I was somewhat confused about what happened with Lance; his case seemed to have made USADA appear more powerful than they actually are. All in all, it's no wonder that athletes feel that doping is worth it. The rewards are potentially large, the possibilities of getting caught are small, and the consequences are little.

Unfortunately, because of the ban, we don't have good science on the long-term effects on the health of the athletes who take them (aside, I guess, from speculation regarding Flo Jo or certain NFL linemen's early deaths).

Ugh.

The author Steve Horn has recently received an email from Dr. Brown's attorney Joan Bain that is interesting. It said in part:

LetsRun.com wrote:

We get you up to date after this week's court hearing was held try to force Dr. Jeffrey Brown to testify about his treatment of many elite athletes, seven of whom have given their permission for him to share the details of their treatment.

http://www.letsrun.com/?p=120132

We have published a 2nd article where a lawyer gives his thoughts on the legal developments:

http://www.letsrun.com/news/2016/07/legal-analysis-5-takeaways-usadas-attempts-force-nops-endocrinologist-give-deposition/

Bit of a yawn really though, anyway can't you buy testosterone over the net? Why on earth would you have to travel to see this one doctor to get it?

So, in Lance's case, you had a previous arbitration and court filings which were from a private company and civil actions over lots of money. So, there were sworn statements on the record. This was not initiated or investigated by USADA but it helped them immensely.

In addition to that they also had lots and lots of cooperating witnesses. Those cooperating witnesses were all people who admitted to doping. They all rolled on each other. It sounds like USADA has some people cooperating in this, but they are all denying any doping, so nobody is rolling and there is no leverage to use on anybody else.

In the Lance case there were also court filings. It is important to note here that those were not initiated by USADA, but the qui tam case was initiated by Floyd Landis. Not sure if the government would ever have taken that action on their own but they joined it once it had been initiated. Leverage, again.

After all of that, USADA's power over Lance was really onto to suspend him from sporting competitions. They don't have any criminal authority.

I would argue that USADA's authority is a little like the NCAA's authority over amateurism. Their ability to investigate is really limited to current participants and employees. Once an athlete is done competing, they don't have to testify. Third parties, such as agents, family, ec. don't have to testify.

Whether that is good or bad is for you to decide. But yes, their ability to investigate and compel testimony is very limited.

rojo wrote:

I'd love to see doping criminalized for professional sports.

And I'd love to see exactly how that is going to work.

I'm not just talking about the big questions, such as: What sort of crime will doping be: fraud? controlled substance? something else? Will the USADA become a government agency? If not, will the USADA have to give the same protections for due process rights as government investigators? Who will pay for all of the new procedures and lawyers? And so on.

I'd also like to know how you are going to deal with a host smaller questions. For example, under the WADA rules, the statute of limitations for doping violations is ten years. Under state and federal laws, the statute of limitations for similar offenses is three to five years. There are good reasons for these differences. Which will apply to the crime of doping?

My bet is that the politics makes this all academic. "Professional sports" = baseball, basketball, football and football. My bet is that they are not interested in having doping criminalized. Since they have the $$$....