Wednesday, June 13, 2007

Playing Fair

A comment points us to The Washington University, St. Louis, Journal of Law and Policy. It has published an article entitled, "Playing Fair: Why the United States Anti-Doping Agency’s Performance-Enhanced Adjudications Should Be Treated as State Action", available in PDF form here.

It covers some of the same issues as the Straubel law review article we've discussed before. This is another must-read for due-process believers. It observes USADA used a "beyond reasonable doubt" standard before the WADA code was introduced. It then explores challenges that might be made to the use of the WADA standard in the United States. From the outline,

Part I of this Note describes the creation of the USADA, its current adjudication process, and the similarities between this process and the American criminal justice system.

Part II poses a hypothetical due process challenge to the new standard of proof, and briefly explains some of the significant constitutional hurdles an athlete must overcome in order to succeed.

Part III explores the Supreme Court’s state action jurisprudence and the various tests it has developed to distinguish private conduct from state action.

Finally, Part IV argues that the USADA’s imposition of sanctions upon suspected dopers, following a proceeding using the comfortable satisfaction standard, is state action to which constitutional protections should apply.

Must reading for our legally inclined readers. As often the case with law review articles, there's some good stuff in the footnotes.


pcrosby said...

I have only had time to read this article quickly, but I was looking for an issue which I failed to find. The issue is the consent of the athlete to the process.

The NCAA assures that its athletes complete consent forms in Division I and II sports whcih permit drug testing and submit them to the NCAA's procedures. Sports federations under the Olympic umbrella have adopted portions of the WADA code that are mandated. Membership in the organization, if not explicit consent forms, gives rise to the "contract" arbitration under the rules of the organization which are establihed by WADA.

I will dig out the citation and precise language, but in 2002, the U.S. Supreme Court approved (5-4) a school district's random drug testing of students in competitive activities where the policy was known. Part of the rationale was that the student had the choice of participating or not. Although the case was cast as one dealing with unreasonable search and swizure, rather than due process, the same argument can be raised: Since the athlete has the choice of participating - and submitting to a process which does not provide due process - or not participating and retaining the rights, I anticipate that our current Supreme Court would have little difficulty in finding a waiver. I have not researched the issue of coerced waivers, but I suspect that the sport setting will not reach a threshold that a federal court will decide is excessive.

In the case I reference above, the Supreme Court majority found the Future Farmers of America and Future Homemakers of America to be competitive organizations and considered them similar to athletic teams, for which they had already approved random drug tests. For the legal ealges, I acknowledge that this is an oversimplification of the holdings, but I think it reaches the effective result.

I would not look to the courts for any corrections. They are going to have to be legislated.
Pete Crosby

Ken at Global View said...

Not having an understanding of the legal system, I guess this means we have to go to our Congressmen and Senators. Frankly, I have contacted mine a number of times and not received any feedback from the (I live in the Upstate of SC). I will do so again referencing this Law Review.

Bob Thomas said...

That's too bad about the courts not being a remedy - getting something through Congress is tough.

Atown, Tx. said...


Thats interesting, and here in texas the state leg. just passed a law requiring mandatory random testing for high schools atheletes.

Its on the Governors desk waiting for a signature. If it isn't signed by Sunday it dies.

pcrosby said...

The Supreme Court case I referenced yesterday is Bd. of Education of Independent School District No. 92 of Pottawatomie County v. Earls et. al. and can be found at
(this is one long url, the program treated it as two sentances.)

It is worth reading becaue it is not a dense, legalistic set of opinions and the dissents give a flavor of the arguments that were presented.

Legislation can be in the form of federal requirements attached to funding or changes arising from the member organizations and federations that are signatories to WADA.

I think that the devolution of the Landis hearing into a lesson on how not to operate a quality lab may mean that the system is ripe for change if pressure can be applied.
Pete Crosby

pcrosby said...


The state organization that runs high school competitions is already in some stage of negotiation with testing companies. The legislation provides $3 million dollars for the first year of testing. The cost may be why it has not been signed yet; the press coverage I have seen expects it to become law.
Pete Crosby