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USADA's lawyer: A conversation with Travis Tygart
In recent weeks, American Floyd Landis leveled several serious charges against staff and testing procedures at the French national anti-doping laboratory - National de Depistage du Dopage at Châtenay-Malabry- alleging that samples and data have been mishandled throughout the nine-month probe of the doping case stemming from an apparent testosterone positive following his victory on stage 17 of the 2006 Tour de France. Following the leak of test results to the French sports daily L'Equipe last month, Landis said that staff at the facility cannot be trusted to carry out their work in an unbiased fashion. A Landis spokesman also alleged that key data were either destroyed or altered in the testing process and that results, therefore, should be rejected by the hearing panel reviewing Landis’s case in California on May 14. Closer to home, Landis and his legal team have also charged the U.S. Anti-Doping Agency with the abuse of its power to the point of engaging in "a witch hunt" or an investigation "reminiscent of McCarthyism."
Indeed, Landis said he was considering asking the U.S. Department of Justice to investigate the use of government funds in the adjudication of his case. "I have every confidence that they can determine if any misuse of federal funds and any resulting criminal activity has taken place on the part of USADA in my case," he said. Normally, that would prompt a quick response from the other side and began a series of competing news conferences as both sides level charges back-and-forth in the media.
USADA general counsel Travis Tygart, however, has generally declined to comment, citing a gag rule that restricts the agency from publicly discussing any on-going matters. The constraint prompted World Anti-Doping Agency president Dick Pound - not known for his reluctance to speak out - to call for a rule change that would relax the gag order and allow USADA officials to respond to what Pound called “false and misleading statements."The rule is still in effect, but Tygart, who is slated to take over as CEO of the agency in September, agreed to discuss some of the news of recent weeks with VeloNews.com editor Charles Pelkey, if that conversation touched on those topics "in only the most general terms."
VeloNews.com: You’ve declined to speak to the specifics of ongoing cases, but we can always ask. Floyd Landis and his defense team have specifically mentioned USADA when leveling accusations about how their side’s observers were either barred from seeing “critical portions” of the testing of seven B samples at the French national anti-doping lab or prevented from entering the building at other times. If you want to discuss specifics, that would be fine by us, but failing that, what is your perception of the rights that an accused athlete, or his representatives, have during the testing of a sample?
Travis Tygart: Our rules don't allow us to comment on the specific facts of a pending case unless the athlete agrees to waive the rule and allows us to speak. What I can say is that the opportunity to witness the B sample opening and analysis is a fundamental and important right afforded an athlete throughout the process. In all cases, we take extra precautions to coordinate and schedule the testing with the athlete’s representative and take steps to ensure that this right is not compromised. In past resolved cases, we’ve had athletes and their representatives attempt to have their case thrown out because of an alleged violation by us or the lab of this right. Each of those attacks were found to be without merit by the arbitration panel. USADA simply has no motivation to violate this rule. Why would we violate this rule and give the athlete a chance to raise a legal technicality and try to have a case dismissed on that basis? At the opening of the B sample, USADA's interest is in allowing the athlete's representative appropriate access, while making sure that nothing is done to compromise the reliability of the analysis. (The Court of Arbitration for Sport recently cleared Spain's Iñigo Landaluze of a testosterone charge because of procedural errors at the lab at Châtenay-Malabry -
Editor )
It might surprise you, but we have had athletes and experts try to strategically interfere in the B sample opening. You have to understand that sometimes the athlete knows that they doped, and hopes something goes wrong in the B sample analysis that will get them off on a technicality. For example, Dr. Catlin at UCLA had a situation where an athlete asked to inspect the B bottle and then attempted to break it on the floor. During the THG cases, one expert interfered with the analysis and caused the lab technician to make a mistake in the processing. Accordingly, while most athletes’ representatives behave in a professional manner, we sometimes have to take precautions to make sure that there is no strategic abuse of the opportunity to observe.
VN: Landis’s attorney Howard Jacobs said that unlike a prosecutor in criminal case or attorneys involved in a civil case, USADA has no formal limit on its exercise of power while pursuing a doping case. If he's wrong, by what rules do you operate? What constrains, for example, your power to request – or demand – medical records, financial records or other evidence?
TT: The USADA Protocol and the AAA Supplementary Rules for Olympic Sport Doping Disputes govern the rules for the arbitration, including any evidentiary and discovery matters. We are very limited in our authority to conduct investigations into alleged doping activity. We can collect samples, but unlike criminal investigators we have no power to compel witness interviews or to obtain medical/financial records unless the athlete consents to providing these documents or an arbitration panel orders their production. Also, we are unable to compel witnesses to provide information to us unless the arbitration panel subpoenas them to testify. So, the reality is that we are very limited in our ability to investigate facts outside of the results from drug tests. Many athletes and others look at the BALCO and Operation Puerto investigations and think anti-doping agencies should have the same level of authority as criminal investigators in order to truly stop the sophisticated doping practices that routine drug testing sometimes misses. While we are not at this point, it is certainly a discussion topic going forward for all of those interested in clean sport.
VN: You’ve frequently said that USADA’s role is to “find the truth” in a doping case. But, what happens when that truth would absolve the accused? Howard Jacobs said, for example, that you have no obligation to reveal exculpatory evidence to the other side.
TT: We absolutely are motivated to find the truth and do the right thing in every case. Our obligation is to protect clean athletes, nothing less and nothing more. And, while this means we have to have the integrity to follow the rules even when they apply to one of our country’s top athletes, like in the Justin Gatlin case, it also means when the evidence does not support an accusation we drop the case. We have had over 20% of all potential cases closed. Also, we have even gone back when new information was developed. For example, in the (Cale) Redpath case, new information became available and we acted on that information by retroactively erasing the violation (failure to appear for post-race testing) that he had agreed to. Our commitment to doing what is right is supported by our record, which is open for all resolved cases, and speaks for itself.
We know from our experiences in BALCO when accused athletes go on the offensive and try to make USADA the bad guys it sometimes sounds convincing at first. Make no mistake, holding America's athletic heroes accountable for deciding to cheat, is not an easy business. All that we ask in any case, is that people reserve judgment until all the facts are known and both sides of the story have been heard. We would also ask people to keep the relative motives in mind. USADA is comprised of regular people who get up and go to work every day trying to do the right thing to keep sport clean. There is not a single person working in this organization who would compromise USADA’s or their own personal integrity for any case. I would encourage anyone to go back and talk to some of the athletes who attacked us most vehemently when they were denying their doping conduct. Talk to Michelle Collins or Kelli White about the USADA process and get their perspective. What we have found is that the story an athlete initially tells the public when they are trying to escape the consequences of doping is very different than the story they will tell once they have realized that they are going to have to face the fact that they made a mistake.
VN: Jacobs also pointed to proposed changes in the World Anti-Doping code as evidence of the agency’s “attempt to gain unlimited police power” in pursuing doping cases. Specifically, he mentioned the proposed provision that would allow additional time to be added on to a suspension if a suspected athlete "interferes with an investigation?" What does that mean?
TT: I believe Mr. Jacobs is referring to cases where an athlete lies or gives false statements under oath during the hearing process and those lies are later proven. I find it hard to believe that even a defense counsel would complain about a rule that would hold an athlete accountable when they lie under oath during a proceeding.
VN: What do you see as USADA’s role in efforts to curb doping? Is it a policing role; a prosecutorial role; a scientific role or a judge’s role? If more than one, do you see any potential for conflicts of interest?
TT: USADA’s role is to be the independent group tasked with finding a way to evolve the effectiveness of anti-doping programs in order to achieve maximum prevention and detection. In this role, we have research, education, testing and results management programs that we are continuously evaluating and pushing to be more effective. When a person decides to dope that unfortunately means that our prevention programs did not work. That is a bad day for us. When this happens, we then have to prosecute the case under the rules. We are not the judges. Ultimately, we present a case to a panel of independent arbitrators who decide the case based on the evidence presented by both USADA and the athlete or coach.
VN: While USA Cycling has handed its duty to pursue doping cases directly to USADA, have other national governing bodies done the same?
TT: In the U.S. Olympic movement, USADA handles all potential anti-doping cases. We believe that the cornerstone of an effective anti-doping program is independence. We also believe that past experience has shown that a sport should not be in the conflicting position of having to enforce the anti-doping rules against one of its own athletes where the sport has a commercial interest in having the athlete on the field and not on the sidelines. Would it be easy to look the other way when someone violates the rule, particularly an American hero? Absolutely. And, the critics of the old system in the U.S. where sport handled the cases found it rife with conflicts and athletes saw it for what is was . . . a very unfair and arbitrary system that was not good for clean athletes.
VN: What is the source of USADA’s funding?
TT: We receive a third of our funding from the USOC and the remaining from the federal government through the Office of National Drug Control Policy.
VN: Is any of that funding dependant on a “track record “of successful convictions?
TT: Absolutely not. I have heard this before and it really is an illogical claim. Quite simply, USADA's funding is dependent only on there being a need for USADA. As long as there is a doping problem in sport, USADA will have funding. The day that there is not a doping problem in American sport will be a happy day for everyone, especially the people involved with USADA. The USADA board and staff would rather see a person who actually doped walk free than sanction someone who did not dope. Our credibility and integrity would be permanently ruined if we only cared about winning cases. Again, an accurate reflection of our track record shows that we simply follow the evidence, do the right thing in every case and keep our mouths shut. Sometimes we may initially look bad in the press since we cannot speak unless permitted by the athlete. In those situations, all we ask is that the public keep an open mind and reserve judgment until we have been given a chance to present the accurate story based on the facts and evidence.
VN.com: German investigators have apparently confirmed that nine bags of blood seized in the Operación Puerto case belonged to Jan Ullrich. There was at least one American alluded to in the Fuentes diaries. Is USADA making a formal request – or joining other agencies in making a request – for DNA samples from the seized blood? Is USADA asking any American athletes to submit samples?
TT: No comment.
