Anyone who thinks Marion Jones is a doper should prove it, or shut up. That includes those puffed-shirt officials and U.S. anti-doping detectives trying to justify their existences with endless games of "gotcha." If they've nabbed Jones or any other athlete, they should produce the hard evidence, and that means a positive drug test. Otherwise, they should end their Inspector Javert-like investigations.
I don't know for absolute certain whether Jones is clean, but let me make this plain: I'm not going to declare her or anyone else guilty based on an evil little something called "a non-analytical positive." The U.S. Anti-Doping Agency ought to be promptly restructured, and its martinet CEO Terry Madden stripped of his blazer, for threatening to use such a thing against anyone, whether a Ping-Pong champion or the greatest runner in the world, or you and me. And shame on the Justice Department and the Senate for allowing it.
"We live in the United States, where people are innocent until they are found guilty. What USADA is trying to do is find [athletes] guilty without any form of investigation," Jones said succinctly at a pre-Olympic news conference Sunday in New York.
What's a "non-analytical positive," you may ask? Basically, a "non-analytical positive" is USADA's way of dealing with athletes they suspect but can't catch red-handed. No matter how many drug tests you pass, USADA can decide it has enough evidence to label you, or me, or Jones, or Senator John McCain, a juicer and kick you off the Olympic team and ban you from your sport.
Perhaps USOC chief of mission Herman Frazier put it best. "It's something that gives you teeth if you can't come up with the evidence to convict," he said.
Last I checked, that sort of thing was considered Un-American in both the red and the blue states. Nevertheless, last week, the Senate blithely handed over evidence from the Justice Department's BALCO investigation to USADA. It never should have done so, especially given that USADA has such a murky and dangerous policy on its books, and frankly, no great reputation for respecting the rights of athletes. As far as I can tell, the attitude of the organization is, you're guilty until proven guilty.
I'm all in favor of drug testing, and of pursuing cheats. But I'd rather see a juicer win 10 dirty gold medals than allow USADA to penalize even one innocent athlete for a "non-analytical positive." Here's why:
President Bill Martin of the USOC, which must abide by all USADA decisions, was asked if his organization had done any homework on the legality of a "non-analytical positive," and whether there might be some problems as far as due process.
"We've done none, frankly," he replied.
Well, that's at least candid. Stupid, but candid.
In other words, BALCO evidence can be used against prospective Olympians, even though the USOC has no idea of the quality of that evidence, or if it's used fairly. BALCO is a mess. Four people have been charged with illegally distributing steroids and other performance-enhancing drugs out of the BALCO lab in Burlingame, Calif., but not much else is clear. Among those who testified before the grand jury was Jones, whose ex-husband, shot putter C.J. Hunter, tested positive for steroids and is incontrovertibly a cheat. There have been rumors that evidence such as signed checks and e-mails implicate Jones herself. None of it has been confirmed, and much of it could be wrong, and all of it she has denied. The only thing it may prove is that Jones made a poor choice in husbands. Furthermore, BALCO founder Victor Conte could say anything and implicate anyone to the Feds in order to cut himself a deal.
Evidence in a Justice Department investigation is normally guarded very closely, for a good reason: to preserve the integrity of it. Grand jury secrecy is meant to protect evidence from becoming politicized, or used in the wrong way. Ordinarily, Justice wouldn't dream of turning over evidence to Congress, much less an organization like USADA, and why it did in this instance is an appalling mystery. Perhaps it thinks headliner (and politically convenient) sports investigations shouldn't be subject to the same rigors as those of vice presidential energy task forces.
In any event, USADA can now use the most specious BALCO evidence to bar athletes, and it could also use it to bully, grandstand politically, or simply smear those it suspects but can't get.
"If I make the Olympic team, which I plan to do, and I am held from the Olympic Games because of something somebody thought, you can pretty much bet there will be lawsuits," Jones said. "I'm not just going to sit down and let someone or a group of people or an organization take away my livelihood because of a hunch, because of a thought, because somebody's trying to show their power."
The worst part of all of this is that the "non-analytical positive" is a tacit admission by USADA that it isn't doing its job particularly well — otherwise, why would it need such a thing? USADA has way too much power and not nearly enough good science and sound legality. Its actions are chaotic, selective and uneven: one day a substance is permissible, the next it's banned. THG, for instance, is deemed a "steroid" — but it's unclear whether it has any benefits. Let me repeat: USADA has declared taking THG a drug crime even though no one knows whether it actually helps you cheat or not.
USADA is young; it was created only four years ago, and it's obviously feeling frisky. It has also acquired a profile internationally. But what's more important is how it behaves at home, and the USOC may regret turning drug-governance issues over to it, because USADA is threatening to set a terrible precedent, and turn the 2004 Games into the Injunction Olympics. For the first time in the history of sport, an athlete may be expelled for a drug offense without confirmation of a test result. What recourse does an athlete have? Very little. He or she can appeal to American Arbitration Association, followed by the Court of Sport Arbitration, and hope to win a favorable decision by July 21, when the U.S. Olympic rosters will be set.
Or, they can hire the best attorney in the land and sue USADA and the USOC until all the letters drop off.
What's really going on here is that the drug police are short-circuiting due process because their science isn't good enough. They can't catch cheaters fair and square — so they've decided to cheat, too, on the rules of evidence.