It’s not just athletes, USADA shows how the government can trample on the constitutional rights of all Americans

There is an agency, headquartered in the United States of America, who can and does investigate steroid and performance enhancing drug (PED) users without a warrant, without judicial oversight, and with no need to convince a grand jury, nor with any respect to constitutional rights? The agency in question was endorsed by an act of Congress and is funded through taxpayer dollars. You might be concerned. You should be concerned. Congress is so concerned that they’re considering a bill that would reign in this agency and ensure due process for those under the agency’s purview. You’re probably compiling a mental list of alphabet soup agencies (FDA, DEA, DOJ, etc.), wondering which it might be. But I’m pretty sure the United States Anti-Doping Agency (USADA) wouldn’t be on most people’s list.

The United States Olympic Council launched the United States Anti-Doping Agency in October of 1999. They began formal operations a year later. In 2001 Congress officially recognized USADA as the United States’ official Anti-Doping body and allocated funding to support the organization. Although the World Anti-Doping Agency (WADA) was founded one month after USADA, the latter, along with all existent national anti-doping agencies were forced to adopt the measures outlined by the world organization. In other words, despite being operative after the United States agency, WADA immediately forced it (and other national anti-doping agencies) into compliance with their own standards and practices.

When left to its own devices, USADA adopted a burden of proof standard familiar to most United States citizens: beyond a reasonable doubt. Since being found guilty of a doping violation results in a two-year suspension plus being stripped of all titles awarded during the relevant time, and almost certainly a loss of all sponsorship, this burden of proof makes sense. Sure, the athlete can continue to train throughout the two-year suspension, but world class coaching requires world class training facilities, and both require world class funding. It’s unlikely that a suspended athlete (essentially unemployed) could afford the same level of training throughout a suspension. Many careers can, and have been, effectively ended by a single positive doping suspension. In addition, the “cheater” label, when tied to illegal performance enhancing drugs, carries the same social stigma as a felony conviction; everyone knows you committed a crime and got caught. In many cases it even reduces the value of an athlete’s memorabilia. Marc McGuire’s record-breaking home run ball? Yeah, it originally sold for $3MM, but is now worth far less, and decreasing every day; this is especially true now that Major League Baseball seems to be intent on rewriting history with Aaron Judge’s recent – and admittedly historic — 62^nd homerun. With penalties this severe, potentially reaching decades into the future and destroying legacies, it seems like the burden of proof should be the same as we have established for criminal trials, beyond a reasonable doubt, and that’s exactly what USADA originally established.

United States civil law allows for lower standards of proof (previously, note that I was talking exclusively about the burden of proof required for a criminal conviction). The first and lowest is the “preponderance of evidence” standard. This basically means that one side prevails when 50%(+) of the evidence is adjudicated to be in favor of their case. The “clear and convincing evidence” standard is more demanding. This is the middle ground between reasonable doubt and preponderance of evidence – essentially meeting this burden is judicial recognition that it is highly likely that the facts and law support one side of the case over the other. But neither (civil) burdens were chosen by USADA. Instead, they settled immediately on the highest burden of proof, as required in criminal prosecutions. Given the table stakes, this was (and is) the only reasonable decision.

The World Anti-Doping Agency did not agree with USADA, nor did they adopt any of these well-established burden of proof standards, instead they adopted “comfortable satisfaction.” This seems to be marginally higher than the preponderance of evidence standard, but far below the burden of reasonable doubt. The problem here is a language game, because while they call this standard a burden of proof, that’s a categorical misnomer. A “burden of proof” is the legal standard requiring a party to prove their case. The Department of Justice (an agency within the Executive Branch) must prove their case in a court of law (administered by the Judicial Branch) to a jury of the defendant’s peers. That last part is important. Because implicit in the term “burden of proof” is the idea that one is proving something to someone on neutral ground. A plaintiff or prosecutor must prove their case to an impartial jury seated in a court of the judiciary, a co-equal and independent branch of government.

For an athlete to be found guilty of a doping violation, USADA must obtain a comfortable margin of satisfaction that their decision is correct. In other words, they need only prove their case to themselves. That’s not a legitimate burden of proof, that’s an attempt to hijack a phrase that is associated with the concept of justice and define it in such a way as to remove all semblance of the original meaning.

What about due process? Yeah, that’s out the door also. Of course, the ringleader of this circus (Travis Tygart, USADA’s CEO) was also one of the lawyers working for USA Swimming (now a client of USADA) while they were engaged in covering up rampant sexual abuse perpetrated on their athletes by coaches. He knows exactly what Due Process demands…

Due process is a right guaranteed to all American citizens through the Fifth and Fourteenth Amendments. The Founding Fathers were deeply suspicious of an over-powered government (having recently had a slight disagreement with England). Subsequent to the adoption of the Constitution, they added the Bill of Rights (the first ten constitutional amendments) to safeguard against this possibility. Later, the Fourteenth Amendment was adopted to ensure that due process and various other rights were guaranteed by individual states and not just the federal government (having recently had a slight disagreement between the southern and northern halves of the United States). Should due process be guaranteed to athletes who compete under the purview of USADA? Intuitively, I think most would answer in the affirmative. But to make this case in a court of law, this position depends on whether USADA is a state actor — thus making their investigations and suspensions a “state action” and forcing them to comply with due process requirements. Due process rights attach whenever the government is acting, either directly or through its agents.

USADA is technically a private non-profit organization. But funding comes almost entirely from the government. Some of this comes in the form of being “hired” by the United States Olympic Council (a government created and funded organization) to administer their doping program and some of it comes directly through the United States government (specifically the Office of National Drug Control Policy). A final portion is earned through contracts with private sporting organizations (none of which are the NFL, MBL, NBA, NHL, or NCAA). Ok, hold that thought, we’ll get back to it.

What does USADA do? They attempt to detect doping violations. What are doping violations? Typically, they involve the use of controlled substances (anabolic steroids), substances with dubious legality (Selective Androgen Receptor Modulators), and occasionally legal substances that are (for one reason or another) prohibited for use in sport (think prohibited dietary substances, like DMAA). It is also a doping violation to use illicit drugs that impart no performance advantage (heroin, etc.). The overlap between committing a doping violation and breaking the law is easily greater than 95%. So essentially when USADA is performing anti-doping activities, they’re investigating crimes. They do other stuff (provide education on doping, maintain a list of dubious supplements, etc.), which doesn’t concern me, and which is probably not a state action. But that’s not all they do.

When the Bay Area Laboratories Co-Operative (BALCO) was under federal investigation, both Congress and federal enforcement agencies worked closely with USADA. Ok, so USADA is funded by the government and performing and assisting in a function typically reserved to the government and working directly with two governmental branches (out of three) to investigate crimes. And they’re not bound to the same statutory rules as law enforcement, nor are they forced to honor constitutional rights. Take this outside of the sporting context and you could imagine how dangerous it is to allow the government to fund an “independent” agency vested with investigational powers, aiding in criminal prosecutions, but devoid of any constraints.

But all they do is test athletes, right? If a urine test shows Oral-Turinabol, then the athlete has surely ingested it. A failed urinalysis is enough for USADA to claim “comfortable satisfaction” that an athlete is guilty of doping. Once you fail the test, you’re guilty until proven innocent. But this completely does away with the intent factor. Most (nearly all) criminal statutes require that the defendant intended to commit the crime, even if unaware that a specific law made the conduct illegal. The World Anti-Doping Code (the anti-doping rules established by WADA) is what’s known as “strict liability” (very few United States laws are also strict liability, mostly contained within the Food, Drug, and Cosmetic Act). This means no intent is required. Contaminated dietary supplements? Not our problem, says USADA, you shouldn’t be taking them anyway. Because world class athletes apparently don’t need to leverage the cutting edge of nutrition or require more of certain nutrients than can be reasonably ingested through regular food. I’ve seen USADA investigations that (I believe) would have otherwise violated an athletes’ constitutional rights, cited, and used as evidence in criminal prosecutions.

But they’re just following the rules set forth by WADA, right? Well, the United States government directly funds WADA also, giving them more tax dollars than any other nation. Moreover, the Office of National Drug Control Policy (remember them?) have been tasked directly by Congress to monitor WADA.

Ok, so United States taxpayers are footing the bill for all of this, while the burden of proof is non-existent against our citizen-athletes, and no intent is required to be convicted by USADA. But you still need to fail that drug test, right? Nope. Enter the so-called “non-analytic positive.”

A non-analytic positive is when USADA suspects that you’re using banned substances but can not prove it through a positive drug test. In other words, a positive result means you’re doping, but a negative result doesn’t mean you aren’t. Huh? In both instances you need to prove you’re innocent, because you begin the process from a presumption of guilt. Once USADA is comfortably satisfied that you have ingested a banned substance, you’re notified and provisionally suspended– which is the point at which you can appeal their findings. Remember how I told you that the burden of proof is a misnomer? Well, here’s the reason: nothing resembling a legitimate standard of proof is actually needed. Basically, it’s like a trial except you’re not there, and don’t know it’s happening, but eventually you get punished and afterwards you get to appeal the verdict. Because USADA is all about fair play…unless they’re the ones playing. The stated purpose of USADA is to “Preserve the integrity of competition; Inspire true sport; Protect the rights of athletes.”

Think about this from the perspective of an athlete. You are told that you’ve been handed a non-analytic positive, and are provisionally suspended, because USADA claims that you’ve used oxandrolone along with testosterone. If you want, you can appeal the verdict and prove you didn’t use banned substances. So you immediately reply “I’ve never failed a doping test.” And USADA says “no, prove it another way.” The Sagan Standard holds that extraordinary claims require extraordinary evidence. In the face of repeated clean doping tests, it’s not unreasonable that USADA should be held to a legitimate burden of proof beyond a reasonable doubt. But once they’ve made a decision, the burden shifts to the suspended athlete.

What other evidence could you produce? Remember, you’re trying to prove a negative and you can’t use the only objective proof available (“I never tested positive”). It’s no surprise that appealing a USADA finding has almost never resulted in victory. Playing those odds, you admit guilt and accept the penalty, which may (under USADA’s rules) result in a reduced suspension time. Now you’ve effectively admitted to a crime (using an illegal substance). What’s to stop a law enforcement agency from using that admission to prosecute you? Don’t worry, after you fully admitted the illegal act in writing, and the government steps in to prosecute, your constitutional rights will be in full effect.

If USADA were a lone outlier I would be slightly less concerned. But other examples exist, and each are used as arms of the government. For example, consider the National Center for Natural Products Research at the University of Mississippi. Headed by Dr. Ikhlas Kahn, they receive millions in government funding. It’s doubtful that the center would exist without government funding. Substantial FDA assistance and collaboration is baked into their grant award, as is FDA oversight.

When the government needed a “third party” to “prove” in court that DMAA was not found in nature (and therefore not a legitimate dietary supplement), they contacted the National Center for Natural Products Research. But when a researcher detected its presence in a plant sample, Dr. Kahn discarded the data and produced a study aligned with the government’s position. I’m sure that has nothing to do with the government signing his checks. Again, this is an organization funded by the government, overseen by the government, and whose work can (and has) been used by the government to prosecute American citizens and businesses. To my knowledge, the Center has never failed to find whatever the FDA wants to be found (or not found) when they conduct studies — even when it means discarding evidence to produce a study with the intent of being used in a court of law.

I’m making a very limited claim here, despite the existence of abundant (potentially more egregious) examples that warrant the same consideration. The United States government funds numerous agencies that exist outside the law as regards constitutional protections or judicial oversight, and they’re weaponized daily to aid in the prosecution of United States citizens. USADA should be treated as a government agency because they’re funded by the government to perform what would otherwise be exclusively the domain of government action (investigating drug crimes). Athletes under their purview ought to have the presumption of innocence and their due process rights protected.

To be sure, these are constitutional rights. But I would argue that they are much more than creatures of statute. Outside of the criminal context, it’s not uncommon to hear someone accused (of anything) to ask, “what happened to innocent until proven guilty” (or some variation of that phrase). This is a cultural norm that speaks to our shared understanding of fairness, that the accusing party bears the burden of proving guilt, and the accused is under no obligation to prove their innocence. Still, courts have been reluctant (have outright refused) to designate USADA as a state actor and force them to honor the constitutional obligations that would follow. Regardless, If USADA wants to continue staking bold claims about fair play and protecting the rights of the athletes, they should conduct themselves accordingly, regardless of whether the courts are willing to impose these standards.

Epilogue: The United States Anti-Doping Agency Reauthorization Act of 2021

Congress directed three million dollars to USADA through the ONDCP for the 2021 fiscal year. But now, the 117^th United Congress is currently (as of this article’s writing and posting) considering a bill known as the United States Anti-Doping Agency Reauthorization Act of 2021 (remember, a given Congress sits for two years). This bill authorizes appropriations for USADA through 2030. But there are some additional requirements in the bill, namely that:

any action taken by USADA to enforce a policy, procedure, or requirement against a person with respect to a violation of federal law, including an investigation, disciplinary action, sanction, or any other administrative action, to be carried out in a manner that provides due process protection

and furthermore that:

the Department of Justice, the Department of Homeland Security, and the Food and Drug Administration must provide to USADA information relating to the prevention of the use of performance-enhancing drugs or the prohibition of performance-enhancing methods.

The days of USADA trampling on the rights of American citizens may be over—but I wouldn’t count on it.

End Notes:

What I hope to have done is make a commonsense argument as to USADA being a de facto state agency, and who accordingly should be held to the same standard as any government agency. For a more technical (by which I mean legal) approach to this topic, I suggest Playing Fair: Why the United States Anti-Doping Agency’s Performance-Enhanced Adjudications Should Be Treated as State-Action, by Paul C. McCaffrey (Washington University of Law, 2006).

Giving the devil his due, you can read the other side of the argument in Dopers Are Not Duped: USADA’s Assistance to Federal Prosecutions Ultimately Protecting Clean Athletes Is Not State Action, by Horvitz, Tygart, and Turbow (Marquette Sports Law Review, 2008). Travis Tygart, one of the authors is, coincidentally, the CEO of USADA. Did I mention he worked as an attorney for USA Swimming as they covered up the sexual abuse of their athletes? Oh, I did already? It must have slipped my mind.

You can read communications between the Office of National Drug Control Policy, the FDA, and USADA here (including USADA’s grant applications): https://cdn.muckrock.com/foia_files/2017/06/30/responsive_Redacted.pdf

And here: https://cdn.muckrock.com/foia_files/2017/07/06/7.6.17_Final_Response_Package.pdf

You can read communications between the FDA and the National Center for Natural Products Research (including their grant application) here:

https://cdn.muckrock.com/foia_files/2019/07/03/2018-1528_Combined_Redacted_Records.pdf

The FDA will neither confirm nor deny that they’ve communicated with USADA (despite the fact that I’ve already included a link to their communications above): https://cdn.muckrock.com/foia_files/2016/11/15/11.15.16__DFOI_response_2016-8556_.pdf

The DEA claims that no records of communications with USADA exist. https://cdn.muckrock.com/foia_files/2017/05/31/5-26-17_MR27274_REJ-G_ID17-00550-F.pdf