In a shift that could significantly hurt Olympic champion Marion Jones and other athletes under investigation for possible drug violations, the U.S. Anti-Doping Agency plans to start using a less-stringent burden of proof in doping cases.
The Associated Press obtained a copy of a USADA memorandum calling for such a change, as well as a second USADA memorandum saying hearsay evidence — perhaps from people charged with distributing steroids to top athletes — would be allowed in the arbitration of doping cases.
The existence of both memos, dated June 1 and written by USADA Director of Legal Affairs Travis Tygart, was first reported earlier Sunday by The Washington Post. USADA spokesman Rich Wanninger said Sunday he could not comment.
The first memo says the standard burden of proof used in U.S. criminal courts — “beyond a reasonable doubt” — has been replaced with the requirement that USADA prove doping “to the comfortable satisfaction” of the panel hearing the case.
Such a change could make it much easier for the USADA to bring cases against Jones and other athletes, and to conclude there were doping violations that could lead to bans from this summer’s Athens Olympics.
Jones won an unprecedented five track medals at the 2000 Sydney Olympics and has hinted she might try to match that mark at the Athens Games. She repeatedly has denied using performance-enhancing drugs and has vowed to fight any USADA charges.
Jones met with USADA officials last month to discuss possible drug evidence against her, and received a letter from the agency this week asking follow-up questions. On Friday, she asked that her grand jury testimony in the Bay Area Laboratory Co-Operative steroid distribution case be released to her so she could pass it on to the USADA.
She was one of several dozen athletes who gave secret testimony last fall before a grand jury that ultimately indicted four men for distributing steroids to top athletes.
Four prospective Olympic medalists — including Jones’ boyfriend, 100-meter world record holder Tim Montgomery — received letters last week informing them the USADA is pursuing possible doping cases against them that could result in bans from the Athens Games.
Tygart’s memo on the burden of proof said the change is based on new world anti-doping rules that took effect March 1.
“Application of the ’comfortable satisfaction’ standard is in the interest of justice because it is the standard of proof set forth in the World Anti-Doping Code that has now been recognized by all members of the Olympic family to most appropriately balance the rights of clean athletes and fair sport against the interests of the accused,” Tygart wrote.
The memo says the change applies to cases initiated after March 1 — which would include the four athletes already notified, and Jones if she formally becomes the target of a USADA case.
The other memo claims “the formal rules of evidence do not apply to arbitrations,” which can be requested by an athlete charged by the USADA. Tygart’s memo refers to “evidence that a court may consider to be hearsay,” and says it should be allowed in arbitration.
Since none of the athletes in these cases failed a drug test, the USADA is building cases based on documents and other circumstantial evidence. It may consider using statements by BALCO founder Victor Conte, one of four men who have pleaded innocent to steroid distribution.
The USADA probe of Jones and other athletes is based on documents from the grand jury investigation of BALCO that were subpoenaed by a Senate committee and then turned over to the USADA.
Also Sunday, the New York Times reported that federal investigators interviewed Jones’ former coach. But it was unclear whether he told them anything about Jones.
The Times, quoting an anonymous source involved in the investigation, said Trevor Graham met this past week in Raleigh, N.C., with a federal investigator and that Graham was asked about Jones. But the newspaper said it was not known what Graham told the federal agent.
Graham’s attorney, Joseph Zeszotarski of Raleigh, could not be reached Sunday for comment by The Associated Press.
On Friday, Jones’ former husband — former world champion shot putter C.J. Hunter — released a statement saying he was cooperating with law enforcement authorities. It was unclear whether Hunter talked to agents about Jones.
Hunter, a former world champion shot putter, tested positive for steroids four times in 2000, when he was married to Jones.
“So long as everyone who is talking to the government tells the truth, this is good news as they will confirm what Marion has said all along — that she has never, ever used performance-enhancing drugs,” one of Jones’ lawyers, Rich Nicols, said Sunday in a statement. “If people are telling the truth, then it will mean that she will be cleared as soon as possible.”