For athletes accused of taking drugs, a Perry Mason of their own
Attorney Howard Jacobs, who has defended athletes from Marion Jones to US swimmer Jessica Hardy, believes the system is tilted too much toward antidoping agencies.
Westlake Village, Calif.
On one side is a tsunami of officials, lawyers, law-enforcement agents, scientists, and rules bent on banishing performance-enhancing drugs from sports. On the other side is a man dressed in simple khaki pants and a polo shirt, sitting behind a wooden desk here in this posh Los Angeles suburb.
Meet Howard Jacobs, perhaps the preeminent US defense lawyer for athletes who have been accused of using illegal drugs. Track stars Marion Jones and Tim Montgomery sought him out when they were accused of doping. So did top US cyclists Tyler Hamilton and since-defrocked 2006 Tour de France champ Floyd Landis, as well as bobsledders, swimmers, and others.
Not surprisingly, Mr. Jacobs has faced a deluge of criticism for standing with them – not least of all from those within the powerful antidoping establishment. To some, he is the equivalent of a mob lawyer – a man who represents people who have cheated the system and, perhaps worse, cheated the world’s youth of the ideals they’re taught about sports and fair play.
But Jacobs, a former triathlete, is resolute. He believes many athletes are unfairly accused of cheating and, once tagged, wear the equivalent of a scarlet letter. He has become a human megaphone for pointing out flaws in a system he sees as tilted toward those who level charges – a job that carries a similar risk.
“If you’re criticizing USADA [the US Anti-Doping Agency], it’s because you’re a doper or you have some financial incentive to do it,” says Jacobs, describing what he says his opponents believe. “Which is ridiculous. It’s as ridiculous as saying you can’t criticize the war on Iraq.”
The system set up to stem drug use in sports is a complex nexus of international law and athletic values that is carried out by an alphabet-soup of antidoping agencies worldwide. It has its own built-in set of checks and balances. The only problem is, one person’s check doesn’t always meet another person’s sense of balance.
The genesis of much of the antidoping movement was an egregious scandal surrounding the Tour de France in 1998, when one team was caught with a carload of banned drugs. The International Olympic Committee (IOC), already plagued with rumors of drug use in many sports, was galvanized to act. Beginning the next year, numerous policing agencies bubbled up throughout the sporting world – most notably the World Anti-Doping Agency (WADA).
A joint venture between governments and sporting entities, WADA spent four years fashioning a global antidoping code. All 202 countries in the Olympic movement and 570 sports organizations have signed on. Each year, the agency updates a list of banned substances.
Advocates say the regulations have become particularly important in an era when performance-enhancing drugs have spread everywhere from Major League dugouts to Pop Warner leagues. “It’s one thing to pretend that it only affects eight people in the 100-meter final at the Olympics, but it doesn’t,” says Dick Pound, WADA chairman from 1999-2007. “It goes all the way down the pyramid.”
Yet some critics such as Jacobs believe the WADA strictures are too inflexible and ensnare numerous athletes who aren’t trying to cheat. Take the case of Zach Lund. Going into the 2006 Olympics in Torino, Italy, Mr. Lund was the world’s top skeleton racer – one of those people who inexplicably launches himself head-first down an icy track on a sled at 80 m.p.h.
He had tested positive for a drug present in medicine he took to fight baldness, banned the year before because it can mask steroids. Lund, who had declared the drug on all his forms for years, was granted a reprieve from USADA and cleared for the Olympics. But WADA appealed the decision, and the case went to the international Court of Arbitration for Sport (CAS). Hours before the opening ceremony, Lund was kicked out of the Games – even though the CAS arbitrators agreed he had no intention of using illegal drugs. They said it was his responsibility to comply with WADA’s list of banned drugs.
Jacobs, Lund’s lawyer in the case, estimates that two-thirds of the nearly 50 athletes he’s represented have inadvertently taken a banned substance, such as Ritalin – a prescription drug that athletes with attention-deficit disorder (ADD) can take if they fill out the right paperwork, which they often don’t. “They’re not trying to cheat,” he says. “But they get caught up in the system, and they end up getting these incredibly long suspensions.”
Jacobs sees other problems with the oversight regimen as well. Unlike in US civil court, he says he doesn’t have the opportunity to question witnesses weeks in advance of a trial.
Often, the first time he hears the other side’s evidence is during the sports arbitration hearing – and he often has to respond without witnesses himself, unless his client happens to be a “toxicologist,” he says dryly.
“Howard ... just doesn’t know the science that I do and I can’t tell him what to ask,” says Dr. Don Catlin, a top antidoping scientist who has many times faced off with Jacobs. “That’s what’s wrong in our system of litigation. All the cards are stacked for USADA because they have money to pay and can purchase witnesses.”
But that can be difficult even with money. WADA’s code of ethics prohibits lab directors from providing “counsel, advice, or information to athletes regarding techniques or methods to mask detection” of banned substances – a standard Dr. Catlin, former head of UCLA’s Olympic Lab, interprets as an effective ban on testifying on behalf of athletes.
Yet defenders of the system dismiss Jacobs’s complaints. After years of unchecked drug abuse, they’ve finally secured a modest foothold from which to clean up sports. Accused athletes are not their priority. Besides, some of the US justice-system safeguards that Jacobs touts don’t apply to international cases, they argue.
“Americans are kind of nutty,” says Jan Paulsson, a Paris-based lawyer and veteran CAS arbitrator. “I hear this all the time: ‘The system doesn’t have this, it doesn’t have that.’ Hold on – you’re the only people in the world who have it.”
Travis Tygart, head of the USADA, defends antidoping arbitration as a balance between efficiency and truth, designed to prevent “fishing expeditions” – defense lawyers drawing out hearings at great expense. “I have a lot of respect for Howard. He’s a fierce advocate,” says Mr. Tygart, who, growing up in Jacksonville, Fla., competed on the same swim team as Jacobs. “His job is just entirely different – using smoke and mirrors to get athletes off, whereas ours is a search for the truth to protect clean athletes.”
If it weren’t for serendipity, Jacobs might be working for Tygart today – having sought a job in 2000 with the newly formed USADA. But the slots were filled, and the agency suggested he try defending athletes to gain experience.
So in 2002, Jacobs represented a bobsledder who tested positive for nandrolone at the Salt Lake Olympics. Though the athlete was banned for two years, Jacobs helped him win a case against a supplement company whose contaminated product, he proved, caused the test results.
“It struck me that not all cases were intentional doping cases,” says Jacobs. “It seemed to me it’d be interesting to do – maybe as a very small part of my practice.” Today, he bills himself as one of the few defense lawyers specializing in the field. Over the years, he has tried to beef up his knowledge of the science of doping, even reading technical journals over breakfast.
Still, at one point, he nearly gave it all up. Just before the press conference on Lund’s ejection from Torino, Jacobs received a verdict on another client – Mr. Hamilton, the cyclist. The two had spent 18 months shuttling around the world to prove his innocence, even uncovering e-mails from the test’s originator questioning its integrity. Jacobs was sure he had it wrapped up. Then came the fax: Guilty as charged. Crushed, Jacobs called his wife in the US. “I don’t know if this is worth doing anymore,” he said.
But ultimately he decided it would be a disservice to athletes to walk away. “There’s no one else that’s really developed an expertise to the extent that I have,” he says.
Ous Mellouli, a Tunisian swimmer who tested positive for amphetamines in 2006, is undoubtedly glad about that. With the help of Jacobs, who attributes the test results to taking a friend’s ADD medicine to study for a test, the usual two-year ban was reduced, enabling him to go to Beijing as a medal favorite. “Occasionally,” says Jacobs, “you get a result like that that makes you realize it’s worth it.”
• The last installment in this series runs Aug. 4. The first two parts ran July 14 and July 21.