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The Explainer: Greeting! You’re busted

  • By Charles Pelkey
  • Published Dec. 2, 2010
  • Updated Dec. 7, 2010 at 5:48 PM EDT
Don't panic ... because you're likely to say something stupid.

Q.Dear Explainer,
I read with interest – and a fair amount of skepticism – Chuck Coyle’s story about mysterious teammates being responsible for his doping violation. First, it sounds fishy to me, but I am a little concerned about the fact that if he was actually telling the truth why mounting a defense would come close to bankrupting him.

What with USADA now going after doping masters and other amateurs, what options do regular people have when they get the call from the man?
Andrew

Don't panic ... because you're likely to say something stupid. | Harmony Books

A.Dear Andrew,
First off, from my limited experience, “The Man” doesn’t actually call an athlete charged with a doping violation. Generally, here in the U.S., the news comes in the form of a Postal Service express mailer (signature required) containing a sheath of documents informing the alleged offender of which violation he or she is being charged.

It has to be a sinking feeling when you open up one of those … something akin to the old letters young men in the 1960s and early `70s received with that oddly friendly opening “Greeting.

Without addressing the question of guilt or innocence here, let’s touch on the steps anyone hoping to fully exercise his or her rights when charged should consider. No one with an interest in sport or justice should want to see a Coyle-like situation in which a guilty plea is entered by a charged party who then says ─  justifiably or not ─ that he was somehow “forced” into accepting a penalty. It serves the interests of no one to see that. It seems somewhat disingenuous for an athlete to make that claim after offering a full confession. Conversely, if the retraction is a valid, it reflects poorly on the process and protections afforded those charged with a violation.

When the postman arrives

In light of the fact that several recent cases have involved those who don’t really have the resources to mount a long and vigorous defense what should you, a regular Joe, do when that letter arrives?

You might start by remembering those immortal words printed in large bold letters on the cover of the “Hitchhiker’s Guide to the Galaxy:” DON’T PANIC.

By not panicking, I really mean to suggest that whatever you do, don’t call USADA and ask for advice. For some, it’s a natural reaction to call up and try to get as much information as you can. In the process, it’s likely that a panic-stricken athlete will also say something he or she shouldn’t. More on that later.

Sit down and read the entire collection of documents. Then re-read them and make notes. There are some key elements in those letters that need to be carefully considered.

Procedure and options

The letter offers up a cursory outline of the rules and procedures and briefly addresses what options you have under the World Anti-Doping Code. While the summary is accurate, it is by its nature incomplete. If you want more detail, go to your computer and pull up the complete World Anti-Doping Code and visit the “Policies and Procedures” page at USADA’s website.

The letter mentions that “You have the right at this time to accept a provisional suspension.” The words “at this time” are underlined for a reason. Essentially the agency is offering the charged athlete about 10 days to decide whether to accept that provisional suspension and, for the duration of the case, cease competition.

It is important to note that accepting a provisional suspension is not an admission of guilt. The only downside to the acceptance of such a suspension is that the charged athlete cannot compete until the case is finally resolved. The big upside, of course, is that it starts the clock ticking as soon as it is signed and returned to USADA. That time is then credited toward whatever ban is ultimately imposed. By not accepting it, it’s likely that the suspension imposed will begin the day a decision is handed down and that could be several months.

Shut up and lawyer up

Perhaps the most important section of the standard letter comes at the end.

“You may also wish to contact John Ruger, the USOC Athlete Ombudsman who is completely independent of USADA, or your own personal attorney, for assistance or further information.”

The letter provides contact information for Ruger and a web page where you can find additional resources. Among those resources is a section titled “Athletes Needing Legal Assistance in Olympic Related Disputes.”

There you will find a list of attorneys with experience in handling cases involving the U.S. Olympic Committee and, more importantly, USADA.

I spoke with one of those attorneys, a good friend and occasional VeloNews contributor, Antonio Gallegos, about what advice he might offer to a recipient of such a letter.

“The first thing I would suggest is to try and think back to all of those cop shows you’ve seen on TV,” Gallegos suggested. “They won’t do it for you, so give yourself your own personal Miranda warning: ‘Anything you say can and will be used against you.’”

“As a fan of the sport, I obviously support USADA’s mission,” he said. “They serve an important role and, for the most part, they do it well. But you need to be clear as to what that role is. USADA will say that its sole mission is ‘to get at the truth.’ But when it comes to dealing with an athlete charged with a violation, USADA’s role is that of a prosecutor. You really need to remember that.”

Gallegos and I have both spoken with charged parties who have discussed their cases with USADA without a lawyer present. While the tone of those conversations tends to be friendly and even supportive, the outcome may not necessarily be in the best interests of the person charged with a violation.

To put it in the context of a criminal case – and really, a doping violation is the sporting world’s rough equivalent of a crime – it’s never, never, never a good idea to seek legal advice from the prosecutor.

It’s important to remember that any conversation you – or potential witnesses – might have with USADA could possibly be used as evidence. It’s important, therefore, to have a lawyer available.

In Coyle’s case, he actually did seek the advice of an attorney. Indeed, he sought out the best in his field, California’s Howard Jacobs, who has represented a host of top-tier athletes charged with doping violations, including Hamilton and Landis, as well as track-and-field stars Tim Montgomery and Marion Jones.

According to Coyle, he learned that mounting a defense against the charges he was facing, “would cost me $20,000.” Coyle says he concluded that since he didn’t have that money available, he simply caved in and accepted his suspension.

Well, whether his vanishing teammates defense was valid or not, he still had other options. While Ruger’s list of available attorneys is quite good, there are a number of other attorneys quite familiar with the machinations of doping law.

When Gallegos and I attended the World Conference on Doping in Sport in Madrid in 2007, we were both struck by the number of U.S. attorneys present in the audience. There is interest in the American legal community in that evolving body of law.

If you do not personally know an attorney versed in the peculiarities of doping law – and it is a specialty – Gallegos recommends contacting Ruger as soon as possible.

“John is not an attorney,” noted Gallegos, “but he does know the procedure and he can offer you some important advice about what you need to do to get you started, including how to find legal help.”

Hiring a lawyer – even one who is not Howard Jacobs – isn’t cheap. Nonetheless, it still makes sense to at least seek some guidance in the matter. A small number of lawyers have, in the past, offered their services for reduced fees or even on a pro bono basis.

“People also need to know about the clinic at Valparaiso,” Gallegos added.

Bring on the law students

The Valparaiso University Sports Law Clinic is headed by sports law professor Mike Straubel and cases are handled by third-year law students. The clinic has finite resources, of course, but if they accept a case, legal services are offered on a no-fee basis. Now lest you think it unwise to put your future as an athlete into the hands of a bunch of unlicensed law students, keep two things in mind:

First, any legal work produced by a student law clinic at a law school is monitored, reviewed and approved by experienced attorneys, usually a tenured law professor. Second, if you’re looking at the case history of USADA, its first “loss” before an arbitration panel came in a case against the clinic students at Valparaiso. Score one for the 3Ls!

Time

Finally, a review of the charging letter from USADA should also make you aware of the fact that delays do not work in your favor. As mentioned before, you have only a few days to accept a provisional suspension. Inaction on your part will constitute a rejection of that option.

Once you’ve reviewed the letter and put your thoughts in order, don’t delay in contacting Ruger or an attorney. Get the ball rolling as quickly as possible. If you do, indeed, opt to accept a suspension do so only after consulting an attorney.

From his description of events, Coyle was apparently reminded that USADA had the option of seeking additional sanctions based on aggravating factors. That’s true. Under the WADA Code, the anti-doping organization pursuing the case may be able to justify “the imposition of a period of ineligibility greater than the standard sanction,” if the charged party has allegedly committed other violations, including trafficking or the administration of doping products to a third party (Article 10.6).

In Coyle’s case, his purchase of doping products online might have met the standard of “trafficking” under Article 2.7. It was certainly appropriate of USADA to remind Coyle of that possibility, but any suggestion that he needed to make a decision right then and right there was probably a stretch.

Like any prosecutor, USADA has to present its case. It has the burden of proof, both as to underlying charge and to any aggravating circumstances. That takes them time and it costs them money. Sure, they will apply pressure and make any offer of a settlement contingent on a given time frame, but no one is going to deny a charged athlete the opportunity to consult with a lawyer before making that kind of a decision. It’s in no one’s interest to do that.

When faced with an offer from USADA, don’t react immediately. Take a deep breath, call Ruger or call an attorney and discuss your options. Even if you are guilty, you need to think these things through.

As Arthur Dent would now say, “DON’T PANIC.” And for those “Hitchhikers” fans out there, there is one change I would suggest. Don’t bring the towel … bring a lawyer.
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to CPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.


Editor’s note: Charles Pelkey joined VeloNews in 1994 after leaving a leadership staff position in the U.S. Senate. Pelkey has worked as a journalist since 1985 and has held a number of editorial positions at VeloNews and currently serves as Senior Editor of VeloNews.com. Pelkey has a Juris Doctorate from the University of Wyoming College of Law and lives in Laramie, Wyoming, with Diana, his wife of 24 years, and their two children, Philip and Annika.

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