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Inside the Arena: The USADA vs. Montgomery Showdown – A Fight for Fair Play

Written by Avinash Kumar


Introduction:


Sports possess an inherent truth, a genuine essence, and an enthralling intensity that makes them both compelling to engage in and captivating to observe. People push themselves to their utmost limits, spurred by the potential of their own capabilities and motivated to exceed their perceived boundaries through dedicated effort. They live in the present, yet their actions leave an enduring impact on history. The essence of sports lies in the pursuit of surpassing one's previous achievements, whether it involves increasing speed, height, or strength.


In the case of United States Anti-Doping Agency v. Montgomery, a Court of Arbitration for Sport (CAS) Tribunal ruled against Olympic track and field athlete Tim Montgomery for doping. Despite Montgomery never testing positive for the banned substance THG (also known as "the Clear") in any official drug tests, the Tribunal found him guilty based on evidence presented by the USADA. This decision marked a significant departure from the traditional requirement for athletes to test positive in drug tests before being convicted of doping. The Tribunal's reliance on the precedent set by United States Anti-Doping Agency v. Collins, a previous case where an athlete was found guilty of doping without a positive drug test, further solidified this new approach. The Collins decision, although initially made by a North American Court of Arbitration for Sport (NAS) Panel, gained global significance when reiterated by the Montgomery Tribunal, as CAS serves as the highest authority in Olympic matters and NAS decisions are subject to its review.


The CAS has been a significant player in Olympic doping jurisprudence, along with the USADA. The World Anti-Doping Agency considers CAS Olympic doping hearings as quasi-criminal, with a burden of proof between civil and criminal standards. The "comfortable satisfaction of the relevant hearing body" standard is used, which is greater than a mere balance of probability but less than proof beyond a reasonable doubt. The Montgomery case, where an Olympic athlete was found guilty of doping without testing positive for a banned substance, has set a new precedent for Olympic doping cases. The CAS Tribunal's decision in Montgomery has been analyzed, and it has been determined that the proceeding was wrongly characterized as civil instead of quasi-criminal, leading to a series of missteps that resulted in an unfair penalty for Montgomery. The CAS must establish proper procedural safeguards for Olympic doping proceedings to ensure the credibility of the organization. The Montgomery case highlights the need for CAS to adopt standards that will cause its Olympic doping hearings to resemble criminal proceedings than civil ones, providing athletes more closely with due process before being labeled "dopers".


The CAS must carefully consider how the reasoning that led to a guilty verdict in the Montgomery case could lead to the unjust conviction of athletes in future non-analytical positive cases. The CAS should establish proper procedural safeguards for Olympic doping proceedings, ensuring that they are viewed as private quasi-criminal arbitrations rather than private civil arbitrations. This will provide athletes with safeguards that are somewhat analogous to criminal trials, ensuring due process and fairness in Olympic doping proceedings.


Facts:


In the Montgomery case, Tim Montgomery was informed by the USADA through a letter dated June 7, 2004, that evidence had been received indicating his involvement in a doping conspiracy linked to various elite athletes, coaches, and the Bay Area Laboratory Co-operative (BALCO). Subsequently, in a follow-up letter, the USADA formally charged Montgomery with violations of track and field's anti-doping rules, alleging his participation in the BALCO conspiracy which involved the trading of undetectable or difficult-to-detect doping substances and techniques.


"[The] USADA charges that your participation in the [BALCO] conspiracy, the purpose of which was to trade in doping substances and techniques that were either undetectable or difficult to detect in routine testing, involved your violations of ... International Amateur Athletic Federation (IAAF) Rules that strictly forbid doping." Specifically, Montgomery was accused of using Anabolic Steroids, Testosterone/Epitestosterone Cream, EPO (erythropoietin), Growth Hormone, and Insulin. Initially facing the prospect of a lifetime ban from competition, the USADA later reduced its proposed sanction to a four-year period of ineligibility. Additionally, the USADA sought to retroactively nullify Montgomery's on-track achievements dating back to February 2000 and recover the earnings he had accrued during that period.


In response to the charges, Montgomery opted to bypass the North American Court of Arbitration for Sport (NAS) and proceed directly to the Court of Arbitration for Sport (CAS) for a final, binding, non-appealable hearing, exercising his rights under USA Track & Field rules. The USADA subsequently submitted its request for arbitration to the CAS on July 5, 2004, appointing Peter Leaver, a barrister from London, England, as its party-appointed arbitrator. Montgomery provided his answer to the USADA's arbitration request the following day, briefly stating his defense and naming San Francisco attorney Christopher Campbell as his party-appointed arbitrator. The two party-appointed arbitrators then selected L. Yves Fortier, a barrister from Montreal, Canada, to serve as the President of the Arbitral Tribunal.

 

Analysis of Judgement:


The decision of the Court of Arbitration for Sport (CAS) Tribunal to find Montgomery guilty of doping was flawed due to several critical errors that resulted in severe consequences for Montgomery. Firstly, the Tribunal failed to specify the standard of proof applicable to the case, suggesting that the difference between the evidentiary requirements in civil and criminal matters was insignificant. This assertion is problematic because it overlooks the distinct burden of proof in criminal proceedings, where the prosecutor must provide evidence to a much higher degree of certainty than in civil cases.


Secondly, the Tribunal's decision to convict Montgomery based solely on evidence of his alleged confession is concerning. Relying on such evidence without proper corroboration raises questions about the fairness of the proceedings and the reliability of the outcome.

Lastly, the Tribunal mischaracterized the nature of the proceeding as "civil" and deemed it acceptable to draw adverse inferences from Montgomery's decision not to testify. This approach is problematic considering that Olympic doping cases are quasi-criminal in nature, falling somewhere between civil and criminal standards of proof. the errors made by the Tribunal undermined Montgomery's right to due process and resulted in unjust consequences, highlighting the need for clearer standards and procedures in Olympic doping proceedings.


Furthermore, the Tribunal's decision erred in considering Montgomery's alleged confession, relayed through third-party witness testimony, as sufficient evidence to establish his guilt. This approach lacks precedent and contradicts the rationale outlined by the North American Court of Arbitration for Sport (NAS) Panel in the Collins case. In Collins, the USADA was required to present a variety of corroborating evidence to meet its burden of proof in a non-analytical positive case. The Tribunal in Montgomery seemed to overlook this aspect of the Collins decision, instead concluding that Montgomery's alleged confession alone was enough to prove his guilt. This determination appears to diverge from the World Anti-Doping Agency's (WADA) conception of how CAS Olympic doping hearings should proceed.


The WADA's standard of proof, outlined in the World Anti-Doping Code (WADC), indicates that strong corroborating evidence of an athlete's guilt is required before they can be deemed a "doper." Additionally, the Montgomery Tribunal erred by drawing an adverse inference from Montgomery's decision not to testify, compounding the error made by the Collins Panel. While the Collins Panel justified this decision based on the United States Supreme Court's ruling in Baxter, it is important to note that Baxter only allowed for an adverse inference to be drawn in civil cases, not in criminal proceedings. By deeming it appropriate to draw such an inference in a quasi-criminal proceeding, both the Collins Panel and the Montgomery Tribunal extended the application of the Baxter ruling beyond its intended scope.


Overall, the Montgomery Tribunal's justification for drawing an adverse inference relied on the characterization of Olympic doping proceedings as civil, which does not accurately reflect the quasi-criminal nature of such hearings before the CAS. While there are no specific guidelines for procedural safeguards in quasi-criminal proceedings, there should be a clear distinction between them and civil proceedings. Drawing adverse inferences should not be permitted in hearings that exceed the established parameters of civil proceedings.


Conclusion:


The Tribunal overseeing the Montgomery case faced challenges navigating unfamiliar territory in handling a "non-analytical positive" scenario, resulting in the development of a flawed procedural framework. To avoid similar outcomes in the future, suggestions for improvement include adopting a criminal standard of proof in such cases, as establishing an athlete's guilt is not as straightforward as in cases with analytical positives. Following the Collins model, CAS Tribunals should require presenting varied substantial evidence to prove guilt.


Additionally, referring to Olympic doping proceedings as "civil" and drawing adverse inferences from an athlete's decision not to testify should be reconsidered, as it may not align with the quasi-criminal nature of these cases. Failure to implement such changes could perpetuate doubts about the fairness of the CAS process, risking its credibility as a neutral arbiter of justice. Continued perception of unfair treatment could ultimately undermine the effectiveness of the current system governing Olympic doping cases.


*The Author is a legal Scholar from India




(The Image used here is for representative purposes only)


References:

  1.  Lord Sebastian Coe; Speech at the opening ceremony of the London 2012 Olympic Games; July 27 2012  

  2. THG or ''the Clear" is a designer steroid that was undetectable in anti-doping tests until 2003, when a track and field coach provided a sample to the USADA. Montgomery, award on merits, CAS 2004/0/645, at I. The steroid was created and distributed to athletes in various sports by San Francisco-based BALCO.

  3.  Montgomery was accused of violating the following IAAF rules: Rule 55.2-The offense of doping takes place when either: (i) a prohibited substance is present within an athlete's body tissues or fluids, or (ii) an athlete uses or takes advantage of a prohibited technique; or (iii) an athlete admits having used or taken advantage of a prohibited substance or a prohibited technique .... Rule 56.3- Any person assisting or inciting others, or admitting having incited or assisted others, to use a prohibited substance, or prohibited techniques, shall have committed a doping offense and shall be subject to sanctions in accordance with Rule 60 .... Rule 56. 4-Any person trading, trafficking, distributing, or selling any prohibited substance otherwise than in the normal course of a recognized profession or trade shall also have committed a doping offense under these Rules and shall be subject to sanctions in accordance with Rule 60.

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