DOHA, Qatar — It is a fundamental precept that everyone is entitled to due process, and as the mater of the United States Anti-Doping Agency versus Alberto Salazar makes plain, perhaps no one in the history of anti-doping litigation has ever exercised the process due him as did Alberto Salazar, tagged late Monday with a four-year ban.
The Salazar matter may come to redefine high-stakes sports-related arbitration as we know it. It sets a new bar for combativeness and litigiousness.
Now, meantime, we shall see whether — in the court of public opinion — all those athletes who over the years saw themselves in Salazar’s orbit will now be afforded the same fundamental fairness.
The preliminary verdict would suggest that having been anywhere near Salazar — much less been one of his disciples, like the Olympic champion Mo Farah or the silver medalist Galen Rupp — is going to make for a tough go.
Very tough.
Alberto Salazar at the IAAF 2018 world indoor championships in Birmingham, England
For all those who would love a screaming endorsement of guilt by association, turn to page 94, paragraph 344, and the account of the former U.S. athlete Danny Mackey, who said that while he was working at the Nike lab, he was told by one of the doctors, Loren Myhre, to take thyroid and testosterone therapy, Mackey testifying that Myhre told him: “This is what Salazar’s athletes do, and they haven’t gotten caught. You’ll be OK.”
Salazar has consistently denied wrongdoing with his athletes and, again, in a statement put out Monday by the Nike Oregon Project, asserted, “The Oregon Project has never and will never permit doping.”
OK, but It didn’t take even hours for the IAAF here to issue its own statement: “On the request of USATF, the IAAF can confirm that Mr. Alberto Salazar’s IAAF World Championship’s accreditation has been deactivated.”
Then came this from Sifan Hassan of the Netherlands, already the women’s 10,000-meter winner here, ready to race the 1500, issued first by her management team, then again by the local organizing committee in case anyone wasn’t on the original mailing list: “I am shocked to receive the news of today’s ruling … I like to state that this investigation is focused on the period before I joined the Oregon Project and therefore has no relation to me.”
Nick Willis, the 2008 and 2016 Olympic medalist in the men’s 1500 meters from New Zealand, said in a Twitter post, “Justice. I’m tired of having to hide my thoughts. The charade is finally over. Our sport will be much better off with Alberto gone.”
Except — as much as those who might like for Salazar to be turned instantly into a pariah for that to be the case — the reality of the matter, as made exceptionally plain throughout all 134 excruciatingly provocative pages of the arbitration ruling, and in Salazar’s response to Monday’s ruling as well, is that this matter is not going away, and neither is he.
Don’t kid yourself.
“I am shocked by the outcome today,” Salazar said in that statement, and just a pause here because that assertion is ridiculous. Salazar could not have been shocked. He may well have been a lot of things — furious comes to mind as does, perhaps, relentlessly retributive — but shocked? This litigation dragged on for two-plus years. His lawyers, who are very good indeed, assuredly told him there was a more than reasonable chance that USADA might prevail on one or more counts because that is USADA’s mission, and particularly in high-profile matters.
So — shocked? Come on.
Now, next, and then skipping ahead to the penultimate sentence of the statement as well, and why Salazar, ever combative, will be with us for some while yet: “Throughout this six-year investigation my athletes and I have endured unjust, unethical and highly damaging treatment from USADA … I will appeal and look forward to this unfair and protracted process reaching the conclusion I know to be true.”
People, this is war.
Lost in the intrigue over the emails to Nike CEO Mark Parker and the reference in the ruling to Lance Armstrong as “a professional road racing cyclist sponsored by Nike” (a dry touch — nice work, three-member arbitration panel), and the seemingly from out-of-left field reference to massage therapist Chris Whetstine (what?! again?! after the Justin Gatlin matter?!) was the scope and nature of the litigation itself.
Maybe never before — not the Armstrong “reasoned decision” in 2012, not the Floyd Landis public hearing in Malibu in 2007, never — has USADA gone up against a “respondent” with such will and, let’s be straight about this, resource, because we know who is paying the bill here.
You can tell the three members of the panel were thrilled, frustrated, exasperated or some combination of all of what, when they go to the Lawyer Old Age Home, will be a story to tell time and again. See paragraph 72, page 25:
“The Panel has reviewed and examined approximately 1,562 exhibits, heard seven full days of testimony, which are documented in 2,543 pages of hearing transcript, reviewed and carefully considered the parties’ prehearing and post-hearing briefs, which consist of 1,154 pages, reviewed and ruled on various motions and issues that arose between the parties, which are articulated in the 14 Procedural Orders issued by the Panel, and the Panel was required to spend thousands of hours on this matter.”
From paragraph 57, page 13: earlier this year, the two sides filed post-hearing briefs. USADA’s ran to 273 pages. Salazar’s, 306. USADA then got to file one more document. It was 183 pages.
For those unfamiliar with this sort of arbitration setting, it’s virtually unheard-of for there to be subpoenas — that is, a document that can compel the production of information. USADA asked for them. This led to a round of skirmishing.
Those 14 so-called “procedural orders”? No. 12 remains redacted.
USADA alleged that Salazar’s legal team delivered 5,000 pages of documents three days prior to his interview — three days! — even though USADA had asked for months for the documents. USADA said this was unfair. Salazar’s team said, essentially, get over it — arguing it was a “clear [exercise] of his right to defend himself. “
This the sort of infighting one sees in high-stakes commercial litigation — say, an antitrust or intellectual property matter in the U.S. federal courts. Not in what in shorthand has come to be called a “sports court.”
Much of the press will seize on paragraph 532, page 133, as the key to a Salazar appeal:
“The Panel notes that [Salazar] does not appear to have been motivated by any intention to commit the violations the Panel found. In fact, the Panel was struck by the amount of care generally taken by [Salazar] to ensure that whatever new technique or method or substance he was going to try was lawful under the World Anti-Doping Code, with USADA’s witness characterizing him as the coach they heard from the most with respect to trying to ensure that he was complying with his obligations. The Panel has taken pains to note that [Salazar] made unintentional mistakes that violated the rules, apparently motivated by his desire to provide the very best results and training for athletes under his care. Unfortunately, that desire clouded his judgment in some instances, when his usual focus on the rules appears to have lapsed …”
Sure, but two things:
1. All this says is that Salazar, as is his way, was pushing the boundaries and wanted to know what he could get away with.
2. The rules don’t require or depend on intent in any regard. That’s not the issue here.
What is pertinent, what is fascinating, can be found a few paragraphs up in the decision.
At paragraph 521, page 131: “The Panel also notes that USADA put on a vigorous prosecution, charging [Salazar] with five violations relating to multiple sets of facts, and, after putting itself and [Salazar] to great expense and effort over many years, prevailing only on three violations, each with respect to only one set of facts …”
Everyone — this was a win for USADA, to be sure. But it was not, repeat not, an overwhelming, conclusive, decisive victory. This is the sort of thing that gives wind to an appeal.
Next paragraph, next page: “It is true that [Salazar], through his counsel, put on a vigorous defense, perhaps greater than USADA has ever seen in any of its prior cases. But based on USADA’s arguments, and the evidence observed here, the Panel does not find that [Salazar] did anything more than endeavor to put on his defense to the fullest extent permitted by law and common practice.”
Finally, the same page, paragraph 524: “Simply put, USADA did not meet its burden to establish that the legitimate, even if uncooperative and aggressive, effort by [Salazar] to put USADA to its proof, and to defend himself, constituted anything more than simply that. The Panel finding otherwise on these facts would chill, unfairly and inappropriately, an accused’s efforts to put on the best lawful defense possible, an outcome that would be unfortunate for all participants.”
Translation: if you have the guts, your lawyers have the smarts and someone can, you know, write the checks to the heavy-hitter law firms (spell it “Gibson, Dunn & Crutcher LLP” and “Law Offices of Collins & Collins”), you can try to wring it out of USADA.
Bring on that appeal. We ain’t hardly heard the last of Alberto Salazar.