By Christopher George
July 22, 2016
Editors’ note: As we were preparing to publish our piece updating you on what happened at the court hearing in Texas involving Dr. Jeffrey Brown regarding USADA’s investigation into the Nike Oregon Project (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), we reached out to attorney Christopher George for his thoughts on the legal developments. Here are his 5 takeaways on the hearing.
1. USADA’s Powers are VERY Limited and Conferred by Congress
Pursuant to 21 U.S.C. § 2001(b)(2), USADA shall “ensure that athletes participating in amateur athletic activities recognized by the United States Olympic Committee are prevented from using performance-enhancing drugs or prohibited performance-enhancing methods adopted by the Agency”
USADA is not a governmental entity. It is a non-profit organization tasked with testing and ensuring that athletes competing in various international competitions (Olympics, IAAF competitions, etc…) are doing so free of any illegal performance enhancing drugs.
As such, USADA does not have subpoena power. It cannot compel any witnesses to appear in an investigation into wrongdoing. It cannot force documents to be produced. It merely tests athletes to confirm they are clean. It investigates any rumors of doping, again to ensure that athletes are clean. Doping/taking PEDs is not against the law, so this is to ensure that the US is sending clean athletes to its international competitions.
2. The Texas Rule 202 Request
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.
3. Next Steps for USADA
USADA will have to continue to investigate by speaking to other witnesses who are willing to cooperate, reviewing medical records of those who are willing to have them released, and hope for a governmental body with the powers of subpoena to get involved. This can only happen if there are federal crimes or civil matters which can be pursued. Again, as above, taking PEDs is not illegal. But perhaps a distribution ring, any kind of tax or other fraud, could be used as grounds to open a federal investigation. Based on that, the prosecutors could try to get the doctor’s medical records … but even then, it is not an automatic that they could compel a doctor’s testimony without more. The Federal Rules of Civil Procedure regarding discovery have recently changed and as a defense attorney, I view them as being slightly more restrictive in what will be permitted for discovery.
In this case, USADA is investigating a doctor who appears to be fond of prescribing medication to people who may not necessarily need it. Subpoenaing him to testify, and overcoming a motion to quash that subpoena, will not be easy. This is why I initially thought getting the American Medical Association (or the state medical association) involved and have it investigate why this doctor prescribed thyroid medications so often, would be a good avenue to pursue. However, I checked with a fellow runner/lawyer – about going to the Texas Medical Board. He does health law and seemed confident that any investigation by the state board would be kept confidential and USADA would not have automatic access to the findings. If the Texas Medical Board were to investigate and find criminality, then a local prosecutor could get involved. USADA could try to piggyback off of any publicly available findings and documents that way as well.”
4. How This Case Differs from Lance Armstrong (for now)
Way back when (Okay, 4-5 years ago) Lance was accused of doping, federal prosecutors accused Armstrong of committing tax fraud and also being in violation of his US Postal Service contract by doping. They investigated. The prosecutors had the authority to subpoena documents and witness testimony before a grand jury. USADA obtained the transcripts and copies of documents. It was based on this testimony and documents, along with blood samples, that USADA announced its findings that Lance had doped and created a large, systemic doping ring. It stripped him of his Tour de France titles, banned him for life etc… Armstrong tried to fight this, but quickly relented. USADA released all of its findings and documentation and it was clear that USADA had him dead to rights. Armstrong then publicly admitted that he was guilty about 3 months later.
5. Additional Thoughts
Travis Tygart is smart, aggressive, and unrelenting. It would be great if Jeff Novitzky could get more involved in this (assuming he isn’t already). Those two as a tandem will get the information, even if it takes them years to do so.
With respect to the results from the Texas court this week – the part of me that wants to see full investigations and truth prevail wishes that USADA could have access to this doctor. But the legal part of me is glad the judge ruled this way. USADA should not be granted unlimited powers to act in such a manner, unless it has been granted these powers by Congress. Otherwise, you could see an organization that has no limits and is tough to reign in. I think we have enough of that already between USATF and the USOC.
Chris George is a 2:44 marathoner and a litigation attorney at Melick & Porter in Boston (http://melicklaw.com). He also serves as the Race Director for the BIGGSteps 5K in Needham, Massachusetts (http://biggsteps.org) which will be held on November 13th this year.