Designer drugs could sideline Olympic stars

Scrutiny of athletes could lead to a first: US competitors being barred from the Games without their testing positive.

As antidoping officials move behind the scenes to build their case against a dozen elite American athletes, the US Olympic movement is inching closer to something it has not had for more than a decade: international credibility.

The United States had been tarred as the closest thing to a new East Germany since the end of the cold war - a country that said the right things but protected its athletes behind a veil of secrecy.

Now, the United States Anti-Doping Agency (USADA) is emphatically dismissing such notions through its pursuit of any athletes connected with BALCO, the Bay Area lab charged with producing designer steroids. Yet as USADA considers banning athletes - even if they have not tested positive - some observers wonder if it is going too far.

The situation, all agree, is nearly impossible: How can you prove someone took a drug designed to avoid detection? Answering that question will not only define the American Olympic team this summer in Athens but whether America is seen as a new leader in anti-doping enforcement or merely a brute.

"We're at a crossroads here," says Steven Ungerleider, author of "Faust's Gold," a book about doping in the former East Germany. "We're carving out some new legal territory."

The idea of keeping an American athlete off the Olympic team based on "nonanalytical positive" results - circumstantial evidence is so convincing that it essentially amounts to a positive drug test - is unprecedented.

Numerous reports suggest that USADA is considering using nonanalytical positives against premier athletes such as sprinters Marion Jones and Tim Montgomery to keep them out of the Olympics this summer. The circumstantial evidence against them comes from the federal government's investigation into BALCO.

But the leaked evidence - from e-mails to financial transactions - falls far short of proving guilt beyond a reasonable doubt, some critics say. "Nonanalytical positive has to be credible evidence," says James Coleman, a professor at Duke School of Law in Durham, N.C., who helped craft USA Track & Field's drug-testing program. "It's not that [Jones] considered taking drugs, or that she hung around people who took drugs. It has to be proof that she, in fact, did [take drugs]."

Jones for her part has been the most outspoken against nonanalytical positives - even threatening to sue if she were to be banned from the team. "I'm not going to let somebody take away my livelihood because of a hunch," she said at a recent press conference.

If she is banned, any challenge would likely be decided by the three-judge Court of Arbitration for Sport in Switzerland. But it's uncharted legal territory. "Nonanalytical positive is a new threshold," says Dr. Ungerleider. "It has never been tested in court."

In the US, at least, there has never been an inclination. To the contrary, the US Olympic Committee has often been criticized for shielding its athletes. Last fall, it released a report acknowledging that during the past 20 years two dozen of its medal-winners had tested positive for drugs.

To the international community, it was proof that the US had been bending the rules. On some levels, though, that attitude is changing. The USOC report promised a new openness, and the BALCO scandal has borne that out. "There has been a sea change," says Richard Pound, chairman of the World Anti-Doping Agency in Montreal. "[BALCO] has been a wake-up call."

Howard Jacobs has felt the change coming for a while now. As a lawyer who has represented athletes in doping cases, he says he began to notice a shift after the creation of USADA in 2000. Before that, the US Olympic Committee was in charge of drug policy and punishment. "Definitely the perception was out there that the US was quick to criticize other countries while it had a big doping problem of its own," says Mr. Jacobs.

Now, the semi-independent US Anti-Doping Agency handles the prosecution of American athletes.

But the biggest switch has come from Washington. Never before has the federal government taken such an active interest in performance-enhancing drugs. The files compiled during the investigation of BALCO have formed the core of the case.

"What they're doing with BALCO is unique," says Jacobs. "It's not every day that you have federal indictments and investigations by federal authorities."