Trampling athletes' due process rights

The Baltimore Sun

For those who are concerned with government encroachment on the civil rights of its citizens, a recent news report about the government's collaboration with the U.S. Anti-Doping Agency (USADA) should give pause.

The article in The Washington Post noted the benefits of the "unique" partnership between the anti-doping agency and the government whereby the USADA was able to sanction amateur athletes and ban them from competition with the indispensable aid of Uncle Sam. It featured quotes from anti-doping officials explaining that with the tools of government - such as wiretaps and documents seized as part of federal investigations - the agency can achieve results it could not on its own.

As Don Catlin, director of UCLA's Olympic Analytical Laboratory, which assists the USADA, said of the government's involvement in anti-doping efforts: "It has clearly caused a revolution. Sports authorities have no power to do anything and government has the power to do all. That's what it takes."

If that is in fact what it takes, and if we want the government going after sports cheats (and helping to get them out of competition), there is one little catch. The alleged cheats are entitled to constitutional due process protections. That is because the Constitution is supposed to apply to exercises of government - as opposed to private - power. It's a bedrock principle of constitutional law.

The USADA maintains that it is "private" and so does not have to give constitutional protections to the athletes it sanctions and bans from competition. It claims this despite the fact that it was created by and through the efforts of the federal government, receives most of its funding through the federal government, and works closely with the federal government to develop its cases against accused athletes and ultimately ban them from competition.

The anti-doping agency was established in 2000 through the efforts of federal drug czar Barry R. McCaffrey and the Office of National Drug Control Policy. Mr. McCaffrey and members of Congress such as Republican Sens. John McCain of Arizona and Ted Stevens of Alaska had had enough of the reports of cheating by U.S. Olympic athletes. A worldwide movement was afoot to establish uniform standards for testing and sanctions for doping offenses.

The United States took a lead role in these efforts, and as part of that it directed the U.S. Olympic Committee to cease its ineffective drug testing program and create the anti-doping agency. The Olympic committee complied, and the USADA began operations designated by Congress as the United States' "official" anti-doping agency. Senators McCain and Stevens as well as other members of Congress had dreams of giving the agency jurisdiction over testing for professional sports as well, but the pro leagues thus far have resisted.

In 2004, shortly before the Athens Olympics, the BALCO scandal broke. In addition to uncovering an illegal performance-enhancing drug distribution operation, federal agents also learned that several elite track and field athletes, many of whom were Olympic hopefuls, were allegedly customers. The problem for the USADA was that the drug sold by BALCO was a specially engineered, undetectable steroid, so none of the athletes who allegedly used the drug failed a drug test.

To keep "cheaters" from going to the Olympic Games, Mr. McCain and the Senate Commerce Committee took the extraordinary step of subpoenaing the documents from the ongoing federal investigation and turning them over to the USADA so that it could ban the accused athletes from competition.

This action was considered unprecedented because prosecutors do not share secret grand jury documents. But for the good of the country and its Olympic image, federal prosecutors did just that. And judging by the reports on the recent crackdown in Florida on illegal Internet sales of steroids and other performance-enhancing substances, they are continuing to do it, aiding the USADA in its work to defeat dopers by giving it evidence on athletes that the agency could not get as a regular "private" entity.

What is wrong with catching athletes who cheat? Nothing. But if you are a fan of constitutional limits on government power, you should be nervous. The USADA is accomplishing its mission through the use of government power. And through winks and nods, it asserts its "private" status while enjoying the fruits of that government power, without those pesky constitutional side effects.

Olympic athletes may be very different from you and me, but they are citizens, and they do not waive their due process rights by virtue of the fact that they can run 100 meters in less than 10 seconds.

Dionne L. Koller is assistant professor of law at the University of Baltimore School of Law. Her e-mail is

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