The latest chapter in the Dick Pound saga unfolded quietly on Friday. Back in 2005, Lance Armstrong filed a complaint with the International Olympic Committee ("IOC") Ethics Commission after Pound, the head of the World Anti-Doping Agency, had publicly stated that there was "a very high probability" that Armstrong had used EPO during the 1999 Tour de France. On Friday, the IOC endorsed the commission’s finding that Pound’s remarks "could have been regarded as likely to impugn the probity" of Armstrong and were inconsistent with the IOC’s goals of "a spirit of friendship, solidarity, and fair play." The commission also recommended that Pound be "remind[ed]...of the obligation to exercise greater prudence...when making public pronouncements that may affect the reputation of others."
Pound has often been criticized for publicly condemning athletes accused of doping violations prior to any formal findings of guilt. After Justin Gatlin and Floyd Landis (or, as Pound has called him, "Roid Floyd") each tested positive for abnormal levels of testosterone, Pound wrote a particularly inflammatory column in the Ottawa Citizen, stating:
We will have to wait for the United States Anti-Doping Agency (USADA) to organize an appeal process, since both are American athletes, before any formal sanction can be pronounced. Who knows, USADA may subscribe to a suggestion that both athletes, in separate sports, were ambushed by a roving squad of Nazi frogmen and injected against their will with the prohibited substances.
Pound is rarely shy when discussing drug use in sports. In any sport. Referring to Landis’ allegedly elevated testosterone level during the Tour de France: "You’d think he’d be violating every virgin within 100 miles. How does he even get on his bicycle?" About the entire sport of cycling: "Take cycling in 2006. If 2006 were to be measured in the Chinese cycle, it would be the year of the Excrement." About the National Hockey League: "The NHL has reached a deal with their players that looks as though they found an early copy of the baseball policy on the floor somewhere." Pound then estimated that 1/3 of all NHL players used steroids, and when later asked for the basis of his estimate, explained: "It was pick a number....So it’s 20 percent. Twenty-five percent. Call me a liar."
Pound, and WADA itself, have come under attack for what the LA Times has described as "a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals or challenges."
Yet, Pound continues to insist that WADA needs to "use every weapon" necessary to eliminate doping in sports– including the use of "non-analytic positives," or findings of violations based on circumstantial evidence rather than actual positive drug tests. (The general issues surrounding the use of non-analytic positives has been discussed in two law review articles--Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006); and Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by "non-analytical" cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006)). Non-analytic positives have been accepted by the Court of Arbitration for Sport ("CAS"), causing Pound to remark: "Finally a stake has been driven through the heart of the preposterous argument that you have to have a doping infraction by producing an analytical positive doping test." While Pound’s use of the media continues to create controversy, his push for greater use of non-analytic positives might cause the greatest stir of all. It will be interesting to see, particularly in light of BALCO and Congress’ "renewed support" for George Mitchell’s steroid probe in baseball, if U.S. lawmakers make any attempt to pressure the leagues and players associations into adopting non-analytic positive standards in their drug testing policies.
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