What’s Going On With US Anti-Doping’s Investigation of Alberto Salzar’s Nike Oregon Project? Documents and Audio From Latest Court Hearing Offer Lens Inside The Investigation
USADA’s attempt to compel Dr. Jeffrey Brown to testify about his treatments of several elite athletes has been met with skepticism by a Texas judge even though seven athletes themselves have given their permission.
*MB: The latest on USADA’s investigation into Alberto Salazar’s Nike Oregon Project
Attorney Who Brought Down Lance Armstrong Involved
By Steve Horn, @SteveAHorn, Special to LetsRun.com
July 22, 2016
Court documents and audio obtained by LetsRun.com from the District Court of Harris County in Houston, Texas, shed new light on the ongoing United States Anti-Doping Agency (USADA) investigation of the Nike Oregon Project (NOP) elite distance running team and reveal that Judge Michael Gomez will likely deny USADA’s request to force Houston-based Nike Oregon Project endocrinologist Dr. Jeffrey Brown to testify under oath about possible anti-doping violations by NOP. The documents also offer hints about the nature of the evidence in the hands of USADA for its ongoing investigation and highlight the legal hurdles USADA faces to compel a deposition from Brown.
Jere Longman of The New York Times first reported on June 28 about USADA’s Rule 202 request — which, if successful, would force Dr. Brown to be deposed under oath. 41 minutes of audio from a July 18 hearing on the Rule 202 request indicate Judge Gomez will deny the request. 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.
Among other revelations coming from the documents is the fact that William Bock — the USADA attorney instrumental in investigating and eventually getting Lance Armstrong and his United States Postal Service banned from the sport of cycling — was given permission by Gomez to represent USADA in the Harris County Rule 202 proceedings and participated in Houston at the July 18 hearing. Bock spoke on the record with LetsRun.com about some aspects of the case.
In the Armstrong case, the testimony from US Postal Service team doctors conveying their administering of performance-enhancing substances played a central role in getting the now-disgraced athlete booted from the sport.
The Oregonian published an article earlier this year pondering whether USADA had dropped its investigation of Nike Oregon Project. The legal wranglings down in Houston suggest the investigation is very much alive.
The public learned that the NOP, as it’s known to elite running fans, was under USADA scrutiny in mid-2015 in the aftermath of a series of investigative articles published by ProPublica journalist David Epstein on the alleged use and potential abuse of therapeutic-use exemptions (TUEs) for various medical treatments (some would argue to enhance performance) by NOP.
The deposition request is part of the broader ongoing USADA investigation of the Nike-sponsored elite distance-running team headed up by famed coach Alberto Salazar, who is sending five NOP athletes to the Olympics in track: Galen Rupp in the 10,000 meters and marathon for the U.S. team, Mo Farah in the 5,000 and 10,000 meters for Great Britain, Suguru Osako in the 5,000 and 10,000 meters for Japan, Shannon Rowbury in the 1500 meters for the U.S. and Matthew Centrowitz in the 1500 meters for the U.S.
Rupp, the champion in both the marathon and 10,000-meter U.S. Olympic Trials races and a 2012 Olympic silver medalist in the 10,000, sat at the center of Epstein’s ProPublica probe as someone alleged to have stretched the limits of anti-doping laws under Salazar’s tutelage. Over three years ago, The Wall Street Journal ran an article on Brown’s role as an “unconventional physician” for athletes, including Rupp, with hypothyroidism. In that piece Salazar called Brown the “best sports endocrinologist in the world.”
According to an article published by The Oregonian in 2006, Rupp traveled alongside his career-long coach Salazar to visit Brown in May 2006. At that appointment, Brown diagnosed Rupp with hypothyroidism and prescribed him with a “dose of hormone each day in the form of a pill.” It is unclear how frequently Rupp has flown back and forth from Oregon to Texas since 2006 to see Brown.
Brown, though, appears to be a star witness for USADA’s investigation.
Testosterone Treatments, Treadmill Tests, Etc.
In an affidavit submitted to the court on July 13, Bock unveiled more details about the origins of USADA’s probe and why it has honed in on Brown in particular.
“Beginning earlier this decade, USADA began to observe that a number of USATF athletes were traveling to Houston, Texas to be treated by Dr. Jeffrey Brown,” it reads. “This pattern of travel, all to one out-of-state doctor, began to raise concerns about the nature of Dr. Brown’s treatments and whether his treatments violated anti-doping rules.”
Some of those athletes, Bock detailed, never received details about why they received treatments and suspected it had more to do with sports performance enhancement than medical reasons.
“Some athletes even report that the treatments were both preceded by, and followed by, treadmill tests, which they understood were meant to evaluate the impact of the treatment on their sport performance,” Bock wrote. “In addition, variability in blood profiles of some patients raises concerns about possible manipulation, and at least one athlete was asked to transport testosterone, which is a banned substance, from Dr. Brown to a coach.”
Bock also highlighted that one athlete (going unnamed, like the “coach” in the previous passage) was asked by Brown to usher testosterone from his office in Houston to Oregon. Brown denied the testosterone transportation scheme in a July 15 filing, saying it is “purely hearsay, and not true.”
In the main, Bock says he has two potential factual anti-doping claims against Brown.
“The first is a series of intravenous infusions given to athletes in 2011 and 2012 that may have violated sport anti-doping rules,” wrote Bock. ”Second, we are aware that Dr. Brown may have participated in the administration of testosterone in a series of tests conducted in 2009 to discern the excretion time and detectability of testosterone administration.”
Salazar denied the allegations brought against him by at least 17 of his former athletes or assistants in a two-part open letter published in June 2015. Brown and his treatments, including both the 2009 incident and the 2011 incident described in Bock’s affidavit, receive mention in both Salazar letters.
“I have clearly and repeatedly refuted allegations directed against me and the Oregon Project in my open letter,” Salazar said via email this week after being shown documents related to the court hearing and asked questions about them.
He then proceeded to repeat the same sentences he used nearly verbatim to The New York Times in its story revealing the existence of the Harris County proceedings:
“I believe in a clean sport and a methodical, dedicated, approach to training. The Oregon Project will never permit doping and all Oregon Project athletes are required to comply with the WADA Code and IAAF Rules. I understand the court denied USADA’s motion and I look forward to this unfair and protracted process reaching the conclusion I know to be true.”
Brown Legal Team Defense
The Brown legal team’s line of defense to the deposition request, found in a July 8 motion to deny entrance of Bock, centers around arguing that USADA has no criminal investigatory or legal subpoena power obliging Brown to talk.
Further, posited Brown’s attorneys, it would be a violation of Brown’s patients’ privacy to compel him to testify under the Health Insurance Portability and Accountability Act’s (HIPAA) privacy rule and under applicable Texas Medical Privacy laws. In its July 8 Motion to Dismiss the deposition request, Brown’s legal team laid out a similar argument.
“They can lose their license, they can be sued, they can be fined, I mean there’s all kinds of things that can happen if you inadvertently violate someone’s privacy rights when it comes to medical records,” Brown attorney Joan Bain told LetsRun.com in an interview. USADA “is essentially attempting to bully Dr. Brown into giving a deposition which he ethically and legally and professionally shouldn’t give.”
The July 8 Motion introduced by Brown also mentions a meeting which took place between Brown’s legal counsel, Bock and his private investigator Victor Burgos, former New York City Police Department Detective and Supervisory Task Force Agent leading complex drug and financial investigations who works for the firm 5 Stones Intelligence, in which Bock and Burgos told Brown’s legal counsel they had evidence against him.
Bock and Burgos had originally showed up at Brown’s office unannounced, seeking his testimony.
“Hide and Seek”
In response on July 14, the USADA legal team rebutted the Brown legal team defense.
As a retort to Brown’s HIPAA claims, seven former patients of Brown whose names and personal information appear redacted, filed motions with matching language (one of the seven here) to the Harris County Court stating that they want their personal medical information associated with Brown’s care to be submitted to Bock and called for Brown to come under deposition. In doing so, they have voluntarily waived their patient privacy rights.
“In short,” wrote the Bock legal team, “Dr. Brown’s privacy/HIPAA argument has no merit.”
A major reason for the need for the testimony, says Bock’s team, is that the notes Brown has handed over (redacted in the court filings) are handwritten and illegible. Bock told LetsRun.com that “Dr. Brown’s explanations are necessary in order to fully evaluate those records.”
Bain says doing so would compromise the privacy of patients outside of the seven who signed away their patient rights as it pertains to Dr. Brown’s treatment.
“The privacy laws are extensive and complex and because these seven athletes were part of various studies Dr. Brown consulted on, it is impossible for him to discuss the things USADA wants to ask him about without discussing other athletes who did not sign waivers,” she explained.
Bain also said she believes the seven patients merely serve as a “wedge” via which the USADA attorneys would gain carte blanche authority to depose Brown about things that could possibly go far beyond just corroborating evidence from those seven alone. She also said that by waiving their HIPAA rights and asking Brown to hand over their medical records, which the seven did back in June, USADA already has “the entire file” of legible records for the seven patients who signed releases because many of them are electronic-based in format.
Bock says, on the contrary, the “vast majority” of the records handed over by Brown were hand-written.
“Although I have seen many examples of poor physician handwriting, much of Dr. Brown’s notes look more like an unfortunate collision between my child’s pick up sticks and a bowl of spaghetti,” said Bock. “In many places I would have more success starting from scratch to decipher the Code of Hammurabi from the original Babylonian than trying to interpret Dr. Brown’s scrawls.”
Bock also points out that Brown would have the right not to answer questions which would compromise his patients’ privacy rights at a deposition.
“At the deposition, Dr. Brown’s attorneys would be fully entitled to object and instruct Dr. Brown not to answer any questions that went towards any legitimately confidential area as to which USADA did not have an applicable release waiving confidentiality concerns,” said Bock. “It is very simple and straightforward and happens every day in hundreds of cases around the country. A cooperating witness answers the questions he can. A non-cooperator or someone who is hiding something refuses to answer any questions. Dr. Brown is refusing to answer any questions.”
Bain, meanwhile, sees that very premise as something which could be used for an ulterior motive yielding a negative outcome for Brown.
“They are using those seven patients as a wedge to try to force Dr. Brown to get in front of a video camera,” said Bain. “They want to videotape the deposition so that they can ask him questions that they know or should know he can’t answer. What does it look like in your mind as a reporter when you see a video where someone is saying ‘I can’t answer the question, I’m not going to answer the question’? I mean, it looks incriminating.”
That brings things full circle in many ways, given that the Rule 202 legal dispute stems from Brown’s denial of USADA’s voluntary request for an interview with him back in February, according to the original Rule 202 petition.
“USADA would not have had to ask for a deposition if had Dr. Brown been willing to sit down with us to answer questions,” said Bock. “Of course, it looks suspicious and incriminating that Dr. Brown now gives no good reason for refusing to answer questions that his patients have asked him to answer. That is not USADA’s fault; it is Dr. Brown’s fault for refusing to answer questions his patients have told him he can answer.”
“You cannot come to court and sit on the witness stand and say ‘So and so told me this.’ That’s hearsay,” explained Bain. “And the reason is that it’s kind of like the whisper game: every time someone repeats something it gets changed a little bit and it’s not in the end very accurate.”
The very problem Bain prescribes serves as the rationale, Bock says, for the need to depose Brown.
“Accuracy is exactly why USADA has asked Dr. Brown to testify to the truth under oath. Ironically, that ‘whisper game’ Dr. Brown’s lawyer describes is called ‘telephone’ and it is about communication,” he explained. “USADA would love for Dr. Brown to truthfully communicate with USADA just as Dr. Brown’s patients have asked him in writing to do, but instead, the only response USADA has gotten is Dr. Brown hiring a legal team which only wants to play ‘hide and seek.’”
In the end, it comes down to a game of venue shopping for USADA to garner a testimony from Brown. That venue, at least for now, will not be the 129th District Civil Court in Texas overseen by Judge Gomez.
“I have concerns about subject-matter jurisdiction based on the case you gave me, the second is arbitration,” Gomez said at the July 18 hearing. “I think in a way this is an end-run around arbitration. The Court also doesn’t believe you met the Rule 202 requirements of findings.”
Were the case to proceed past the investigative phase and USADA decided to issue a legal complaint against NOP, the case would go to arbitration court, hence the mention of “arbitration” by Gomez. Arbitration, and the prospects of it ensuing, took up much of the July 18 hearing.
Bock said at the hearing that he sees arbitration as the clear next step if or when USADA brings a sanction because it is mandated under the Ted Stevens Olympic and Amateur Sports Act of 1998 for anti-doping sanction motions. But he also said that the Rule 202 deposition is key for the pre-sanction investigative phase in which USADA is deciding whether or not it wants to bring such a sanction. Brown, as his legal team points out in a July 15 filing, would not have to testify at the arbitration hearing.
As for findings, those pertain to questions of facts and factual evidence introduced within the legal arena.
According to Rule 202’s findings section, a “court must order a deposition to be taken if, but only if, it finds that: (1) allowing the petitioner to take the requested depositions may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.”
Gomez indicated, in stating how he would rule, that he does not believe USADA met prong two of Rule 202’s “findings” test.
In closing out the hearing, Gomez also spoke to the fact that his decision centers around the venue itself and not the facts in-play introduced in some of the USADA motions. Gomez has not issued an interpretation of those, as of yet, one way or the other.
“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.”
As this article went to publication, Gomez has yet to publish a final ruling on USADA’s Rule 202 petition but he told the attorneys for both parties that would occur soon.
Bock, citing USADA’s ongoing investigation, did not disclose to LetsRun.com his legal team’s strategy if Gomez does indeed deny USADA’s Rule 202 petition. Bain said Brown intends to continue to fight back against a compelled testimony on privacy rule grounds.
Questions? Comments? Email us or talk about this article on the LRC messagebaord. MB: LRC Exclusive: The latest on USADA’s investigation into Alberto Salazar’s Nike Oregon Project.
Update: We now have a second piece published on this matter: LRC Legal Analysis: 5 Takeaways From USADA’s Attempts to Force The NOP’s Endocrinologist To Give A Deposition A lawyer gives his thoughts on the court hearing.
Steve Horn is an Indianapolis-based investigative journalist and writer for DeSmogBlog.com. His writing has appeared in The Intercept, Vice News, The Guardian, Al Jazeera America, Wisconsin Watch, Isthmus, NUVO and other publications. Follow him at @SteveAHorn on Twitter.
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