When George Mitchell released his long-awaited report on performance-enhancing drugs in baseball last month, he suggested that MLB not punish the players he wrote about. After all, he said, everyone makes mistakes.
The ex-Senator didn't use the word "amnesty" in making his appeal for leniency, and for good reason. According to my dictionary, amnesty means "a period during which crimes can be admitted without prosecution." Virtually no one whose cooperation he sought talked to him. They all hid -- and if you believe Roger Clemens' trainer, Brian McNamee, are still hiding -- behind a mile-wide strike zone of silence.
In Olympic sports, we have the exact opposite problem: Too much punishment and not enough common sense. That, at least, is the impression left by the four-year ban meted out to track star Justin Gatlin on Tuesday.
Gatlin's sentence stems, in part, from a drug test he failed when he was a 19-year-old scholarship student at the University of Tennessee. With summer school midterms coming up, he took medication for attention deficit disorder, a condition he's had since he was 9 years old. Even though he stopped taking the meds three days before the junior nationals, he had enough in his system to trip a test for elevated levels of amphetamine.
With that 2001 "violation" on his record, Gatlin couldn't afford a second mistake. Yet in July 2006, he flunked a test at the Kansas Relays for elevated testosterone. The grinding machinery of the U.S. Anti-Doping Agency promptly went into gear.
Gatlin's most persuasive argument as he challenges the four-year ban is that the first bust wasn't really a bust at all -- but something that would be considered a "no fault violation" under today's rules. As such, the Kansas case should be considered his first violation and subject to a two-year ban. With that math, he'd be eligible to compete in the Olympic trials in May.
Everything that's wrong with the World Anti-Doping Agency's code can be found in the tortured analysis of this argument by the 2-1 majority on the arbitration panel that handed down the decision. It goes on and on -- and on -- about how the arbitrators in the 2001 case clearly intended to show Gatlin wasn't at fault. "Mr. Gatlin neither cheated nor intended to cheat," wrote the judges, Ed Colbert and Sam Cheris.
But here's the Catch-22. Since the WADA code wasn't in effect back then, the 2001 panel didn't make an explicit "no fault" finding under the code that would let the 2007 panel discount it as a violation. You getting this? Gatlin is being punished by the WADA code for the simple fact that the WADA code wasn't in effect in 2001.
Right about now, you should be imagining Lucy picking up the football on poor ol' Charlie Brown.
The arbitrators end up telling Gatlin that he should go back to the original agency that imposed the sentence -- the IAAF -- and get the no fault finding. But that's a little bit like me rooting around in the basement for an old tax return so I can file for a six-year-old deduction. Who knows how long that will take? And time isn't on Gatlin's side, which is why his lawyer, John P. Collins, is appealing to the Swiss-based Court of Arbitration for Sport, and might open up a second front in U.S. federal court.
Gatlin, who hopes to defend the 100-meter gold medal he won at the 2004 Olympics, was supposed to be the new face of American track-- the clean antidote to all the drugged-up record holders of the past, starting with Ben Johnson and ending with those conviction-crossed ex-lovers, Marion Jones and Tim Montgomery. Even the arbitrators who ruled against Gatlin concede he "seems like a complete gentlemen [sic]."
Maybe he was naïve in picking the most drug-connected coach of all time, Trevor Graham, to work with him. Or maybe he was just bowing to a perverse reality in track: It takes a dirty coach to help a clean athlete beat his or her dirty rivals. It doesn't matter. Once he tested positive a second time, he did precisely what the prosecutors from the USADA wanted: He wore a wire to gather evidence against Graham.
This is exactly the kind of behavior we're told we're supposed to applaud, and the very thing that Mitchell castigated MLB's players for not doing. Gatlin accepted the reality of his second positive finding (not precisely the same as admitting guilt, but close enough) and agreed to help IRS special agent Jeff Novitzky investigate Graham. According to the Washington Post's Amy Shipley, who broke the story, Gatlin taped his coach on at least 10 occasions.
Here's where the case gets ludicrous. Instead of holding Gatlin up as a model, the USADA's prosecutors invoked yet another rule in the endlessly flexible WADA code. This one states that a defendant's cooperation has to yield evidence of a new, undiscovered doping violation. Never mind that Gatlin's tapes will no doubt be used in an upcoming federal trial in which Graham stands accused of obstructing justice. (They've already been handed over to Graham's defense.) The USADA's general counsel, Bill Bock, argued that Gatlin didn't do enough to merit a reduction of his ban.
To their credit, Colbert and Cheris saw through that claim, arguing it is disingenuous and misplaced, since the agency was positively lazy in how it availed itself of Gatlin.
"The panel finds that Mr. Gatlin has provided substantial assistance to the United States Government in investigating doping in sport," they wrote. "He immediately cooperated with the IRS without hesitation. He made undercover calls. He wore a wire, putting himself at risk. While USADA contended that Mr. Gatlin did not 'cooperate' with it in any investigations and ought not to be given credit the record reflects that USADA never sought to avail itself of Mr. Gatlin's assistance, and that is not within Mr. Gatlin's control."
Guess it's time to stop taking such long lunches, guys.
The net effect of this decision might be to discourage the very cooperation that the USADA says it wants. During his years as the agency's general counsel, Travis Tygart, who was recently promoted to CEO, helped run up a perfect 36-0 win record in arbitration cases. But as defense lawyers get better at picking apart the science of these cases, the tide might be turning. On Dec. 15, the USADA suffered its first-ever loss when an arbitration panel ruled in favor of another Beijing hopeful, sprinter LaTasha Jenkins. The panel found that a urine sample that tested positive for nandrolone in Belgium was tainted by two European labs that didn't follow international standards.
So it's little wonder the USADA is trying to turn itself into more of a law enforcement agency, relying on cops such as Novitzky to bring it cases.
"We all know that testing alone will never provide a complete solution to the problem of doping," Tygart told dailypeleton.com in an interview last year. But after the way it "rewarded" Gatlin for sticking his neck out, I'm hard-pressed to understand why any athlete would risk helping it. Collins says he's already hearing about coaches who are advising their clients to clam up.
The net effect of this decision? It makes baseball players look smart for their stonewalling.
Shaun Assael, a senior writer for ESPN The Magazine, writes extensively about doping in track and field, baseball and other sports in his new book, "Steroid Nation," available here.