They're Positive, Even Without a Positive

To the casual observer, the latest addition to the roll call of cheaters looks commonplace: on December 13, US sprinters Tim Montgomery and Chryste Gaines were found guilty of doping offenses and suspended for two years. Add them to the long list of cheating superstars in athletics.

This case, though, is a little bit different from the rest. The written decisions from the Court of Arbitration for Sport spell this out nicely at the outset (you can read the full text (PDF) of the Mongomery ruling here and the Gaines ruling here; the two documents are nearly identical, so I will quote from the Montgomery document):

At issue is the charge by the United States Anti-Doping Agency (“USADA”) that Tim Montgomery violated applicable IAAF anti-doping rules, notwithstanding that he never tested positive in any in-competition or out-of-competition drug test.

Relay Team Not Guilty

Although Montgomery has been stripped of his 2001 world championship in the 4 × 100m relay, the other members of that team can breathe easy. A previous CAS decision in the Jerome Young case ruled that the IAAF doping rules in place at that time applied only to individuals, and that relay teams could not be disqualified based on the doping infractions of their members.

I have written before about how ludicrous this is. It is interesting to note that one member of the Young panel also ruled on the Montgomery/Gaines cases.

Both athletes have been suspended for two years. In addition, all "awards and additions to [the athlete's] trust fund" have been retroactively cancelled; dating from 31 March 2001 in Montgomery's case, and from 30 November 2003 in Gaines' case. For Montgomery, it will be as if he never existed as an international-calibre athlete. The IAAF will apply the retroactive cancellation to Montgomery's (since-broken) world record in the 100m, and all of his other results since 2001, which will be wiped from the books. They have also announced that they will ask him to return his prize money and appearance fees from that period as well.

So how can the USADA bring sanctions against an athlete without a positive test? This is an example of what WADA calls a non-analytical positive case. Let's take a good look at The Case Against Mr. Montgomery.

The USADA presented what it called "seven types" of evidence in the case, which I would summarize as follows:

• Blood and urine test results which, while not explicitly "negative analytical findings," raised suspicion of cheating.
• The testimony of Kelli White, alleging that Montgomery admitted to using "the clear," a designer steroid distributed by BALCO.
• Documentary evidence, and testimony by Victor Conte, Gaines, and Montgomery, arising as part of the BALCO investigation.

Sidestepping the trickier legal aspects of the test results and the BALCO evidence, the CAS based its conclusions on only one of the categories:

The Panel has wrestled with the question whether, in the circumstances, it should address each element of USADA's case … including each category of evidence relied upon by [USADA]. On balance, the Panel has determined not to do so for the simple reason that it is unnecessary. This is because the Panel is unanimously of the view that Mr. Montgomery in fact admitted his use of prohibited substances to Ms. White, as discussed in more detail below, on which basis alone the Panel can and does find him guilty of a doping offence.

In other words, there is no need to consider any of the scientific or documentary evidence against Montgomery, because the testimony of Kelli White is sufficient proof of doping. Ms. White is an admitted drug user, currently under suspension for using the Clear and other banned substances. Her testimony is described in paragraphs 46-50 of the Montgomery ruling. The details of the testimony differ for Montgomery and Gaines, but the essence is the same:

• Kelli White testified that both Montgomery and Gaines admitted to her that they were using the Clear.
• The CAS Panel found Kelli White's testimony "wholly credible," adding that "the members of the Panel do not doubt the veracity of her evidence. She answered all questions, including in relation to her own record of doping, in a forthright, honest, and reasonable manner."
• Montgomery and Gaines and their respective representatives "did not in any way undermine Ms. White's evidence," which thus "stands uncontroverted."
• Montgomery and Gaines did not testify or offer any denial or alternative explanation for the statements reported by Ms. White.

The decision is described with the statement that "the Panel has no doubt in this case, and is more than comfortably satisfied, that Mr. Montgomery committed the doping offence in question." Frankly, I find this statement incredible. Based simply on the testimony of a single athlete, the Panel has no doubt about Tim Montgomery's guilt? Consider the standard that this establishes for a non-analytical positive case.

First, you need somebody who is willing to testify that the athlete admitted to the use of a banned substance. There is no special weight attached to Ms. White's status as an athlete; presumably anybody could testify to the admission. Second, the testimony has to seem credible to the CAS. And third, the allegation has to be uncontested by the athlete; if the athlete does not explicitly deny that an admission took place, the CAS can consider the testimony to be "uncontroverted evidence."

I am of a mixed mind about this case in many ways. Like the CAS, I believe that Tim Montgomery is a steroid user. However, I admit that there is some doubt about the matter. I also believe that WADA and the IFs should be able to pursue sanctions against athletes in the absence of a positive drug test. However, it seems to me that the standard of proof applied in this case is much too low, the CAS Panel's statements to the contrary notwithstanding. The testimony of a single individual, without any corroborating evidence, should not be enough for a conclusive decision against an accused athlete.

Dick Pound, president of WADA, is practically drooling with delight at the prospect of all the drug cheats he can put away now:

Finally a stake has been driven through the heart of the preposterous argument that you have to have a doping infraction by producing an analytical positive doping test. Everybody knows it is a nonsensical argument, but until CAS says so it is not a precedent.

I expect that WADA will be coming after Marion Jones next. Jones, like Montgomery, has never tested positive for anything, but Victor Conte has publicly stated that he provided her with performance-enhancing substances, and watched her inject them.