Gatlin Files Appeal to CAS

Story written by EPelle

Suspended American sprinter Justin Gatlin, the 2004 Olympic 100m gold medalist and previous co-world record-holder (9,77 seconds), has appealed his four-year doping ban to the Court of Arbitration for Sport (CAS), his attorney said on Tuesday.

Gatlin, 25, who tested positive for testosterone - or its precursors - after having submitted to a drug test at the 2006 Kansas Relays, has vigorously fought the allegations that he committed an anti-doping offense, and stated the testosterone had likely entered his body without his knowledge and without his consent.

Trevor Graham, his coach, has maintained that a disgruntled and bitter Nike employee rubbed a mysterious cream on Gatlin, and that triggered the positive test.

The employee, Chris Whetstine, denied those allegations.

Later, Graham speculated that he -- not Gatlin -- might have been the target because of anger in the track and field world surrounding his decision to send the syringe filled with steroids to USADA in 2003 sparked the fire which became the BALCO scandal. The federal investigation that Graham launched resulted in five criminal convictions and more than a dozen athlete suspensions. According to that theory, Graham's enemies wanted to take him down by implicating Gatlin, his star runner.

Logic begs to inquire that if this were really the case, that Whetstine wanted to get back at Graham, why Whetstine simply didn't plant evidence on Graham's possession, in his vehicle or at his home, call the authorities and say that he had seen Graham take with him a prohibited substance. Graham would have been implicated and no one would ever doubt again that Graham had any connection to doping athletes.

Instead, the world was spoon fed an incredulous story - which has gotten much more interesting and more detailed as time has gone along - about a pink coloured "s" swiggle, and a recollection that Gatlin told Graham to basically back off when the commotion started. You're first told by Graham that it was he who wanted to intercede, but the tube was quickly put away in Whetstine's pocket, and Graham didn't think anything more of it. Now it has changed and become more elaborate with Gatlin stating, "Let him do his job, man!"

If one takes Graham's side, Whetstine did his job so effectively that he rubbed a compound into Gatlin which had Dehydroepiandrosterone, also known as DHEA, as its active ingredient -- a substance which would without question cause a positive doping test.

Something strange I would like to acknowledge here is that if Graham had any concern for Gatlin, who apparently went through every conceivable precaution as to not ever test positive (including locking his luggage, ordering room service when away), he would have stopped everything right then and there, and told Gatlin he was concerned with what had just occured; he would have rushed Whetstine and forced his hand into the pocket. He didn't. What neatly disappeared in this version of Graham's story is the portion where Graham apparently told Whetstine that Gatlin didn't need a massage in the first place.

"All I saw was the massage therapist go into a bag and bring out something else," Walker said. "He rubbed something else on Justin. . . . It was right there in front of me. It wasn't what he used on Shawn," is what the Washington Post revealed ast year.

The International Association of Athletics Federations (IAAF), which has a strict liability anti-doping rule in place making anything found within the athlete's body their responsibility, originally banned Gatlin eight years for committing a second anti-doping offense. Gatlin was successful in having the original sanction reduced to four years after having co-operated with anti-doping recommendations that he provide his full support in leading to the source of the drugs -- believed to be Graham.

Gatlin first tested positive at the 2001 USA Junior Nationals for an amphetamine contained in an Attention Deficit Disorder medication he had been taking for 10 years. He was originally suspended for two years by the International Association of Athletics Federations (IAAF), which reinstated him one year later following appeals.

The IAAF did not, however, word its ruling as such that Gatlin had not failed a drugs test, but had rather re-instated him despite the breach of rules in place; Gatlin had not intentionally doped, they stated, but had violated anti-doping rules by competing at a sanctioned event without having received (or even applied for) a Therapeutic Use Exemption, or TUE for short.

Under the World Anti-Doping Code, WADA has mandated that all athletes with documented medical conditions request a TUE, and after having had such request appropriately dealt with by a panel of independent physicians called a Therapeutic Use Exemption Committee (TUEC), promply receive either a grant or a decline of his/her application.

WADA has the TUE rule in place in a concerted effort to ensure athletes do not experience significant health problems without taking the prohibited substance or method; the therapeutic use of the substance would not produce significant enhancement of performance; and there would be no reasonable therapeutic alternative to the use of the otherwise prohibited substance or method.

Gatlin had his medication, Adderall, listed with the University of Tennessee, where he was a student-athlete, but he failed to list the medication with USATF. He competed without having requested for the TUE, and was later stripped of his winning marks and places as a result of that rules violation.

According to IAAF reports from 2001 following the first suspension, Gatlin harboured no resentment for having been banned a year:

"I knew the right thing to do was accept the suspension," he said in May. "I just broke the rules, which were the rules.

"It motivated me to do better this year. A lot of people can't back from something like that. It hurts them mentally and physically. I want to prove to everyone that I'm a strong person and that I have what it takes to be one of the best in the world."

The IAAF, in review of the 2001 case, stated that there was no intentional part on Gatlin's behalf to cheat, and it was discovered that Adderall in-and-of-itself provided no enhancement to Gatlin, but they did not remove the term "doping violation" from their ruling - a sticking point which would cause Gatlin problems in 2007.

The IAAF did warn Gatlin following their reversal of his original ban - though still a violation of their rules, however, that any future positive drugs test would result in a lifetime ban from the sport, which leads Gatlin to his curent situation.

Now that Gatlin has been entangled in a second drug controversy, he's attempted to have the first IAAF opinion erased, and used a number of arguments with the AAA - including having been a juvenile whilst committing the first offense - to no avail.

The majority of a three-member American Arbitration Association (AAA) panel banned Gatlin for his 2006 positive test, having ruled that it was Gatlin's second positive test. In theory, they were correct insofar as in their ruling they stated that had the IAAF previoulsy re-instated Gatlin and not deemed him to have committed an anti-doping violation, they did not specifically and unequivocally state that in their ruling, a split decision that included a 53-page opinion and 22-page dissent.

"If the IAAF “eliminated” any period of ineligibility because it believed that, under the circumstances either there should have been no finding of a doping violation or because Mr. Gatlin had “no fault” in that violation, then the first offense should not be considered to be a prior offense for purposes of the award for a second violation. This Panel is unable, on the record before it, to ignore the first doping violation, but shall retain jurisdiction to amend this award in the event that Mr. Gatlin receives from IAAF or otherwise, a ruling which might alter the view of the first offense in 2001."

"The Dissent hereing makes an impassioned case that the facts and circumstances of that first offense, namely the advice of the USATF and USADA that it was sufficient for athletes simply to discontinue their non-competition use of medications, and law, namely the Americans with Disabilities Act and Swiss Law, compel the conclusion that Mr. Gatlin essentially had no fault at all in the first offense. The Dissent does not explain, then, why that first panel found a doping violation. If the standard in 2001 was simply negligence, and Mr. Gatlin was not negligent because the actions and advice of the USATF and USADA had to be considered as part of the anti-doping rules or an interpretation of those rules, then the appropriate conclusion would, it appears to the majority, have been a finding of no doping offense. However, that was not the case."

Said the AAA panel regarding Gatlin's juvenile claim:

"He asserts that because the first event was in the 2001 U.S. Junior Nationals, an age restricted event, Mr. Gatlin, though 19 at the time, should be considered a minor for the purposes of the Panel’s evaluation under the Guidelines. This argument is similarly rejected with the same cautionary note as with the prior argument."

Prior to his 2006 bust, neither Gatlin nor the IAAF - or USADA for that matter - had acted on his behalf to have the first "offense" removed from record rather than accepting that he had committed a violation and was allowed to compete despite that anti-doping misdemeanour. This has become Gatlin's achilles heel, and he's attempting to recover from that earlier misstep stated by his counsel to be an administrative violation, not an anti-doping one.

"With these filings, Mr. Gatlin is taking the next steps in recovering his right to defend his gold medal in the 100 meters, silver medal in the 400 meters relay and bronze in the 200 meters at the Beijing Olympics," Maurice Suh said in a statement on Tuesday.

The appeal was filed on Monday to Lausanne-based CAS, with Suh requesting the hearing take place in New York.

"While there are many possible avenues that we are currently exploring, the appeal of the arbitration panel decisions are a critical component of his defense," Suh's statement added.

"To use this (2001) sanction to bar him from participating in the Olympics is a prime example of unfairness to an athlete, and a grossly inappropriate balance of anti-doping efforts against the right of individuals to pursue their careers and their dreams," Suh said.

"Most troublingly, it constitutes a discrimination against a person with a diagnosed disability."

The dissenting member of the AAA panel, Christopher Campbell, furthered that sentiment in his ruling (referenced above):

"Mr. Gatlin’s first offence would be covered by art. 8 because it was a mental disability and he obviously faced a disadvantage because of it. Incidentally, so did Mr. Ricky Harris. These Fundamental Rights must be respected by private entities such as the USOC, USADA, USATF and the IAAF. Article 35 states:

Realization of Fundamental Rights

1. The fundamental rights shall be realized in the entire legal system.
2. Whoever exercises a function of the state must respect the fundamental
rights and contribute to their realization.
3. The authorities shall ensure that the fundamental rights also be respected in relations among private parties whenever the analogy is applicable.67 (emphasis added)

"Mr. Gatlin, Mr. Harris and any other athlete who has received sanctions because of taking medicine for their disability have their fundamental rights violated. In the case of Mr. Gatlin, he will not be allowed to work in his chosen profession for two years above what he should have been sanctioned. In Mr. Harris’ case, he was not allowed to work for a year and faces the same draconian predicament that Mr. Gatlin is experiencing. As stated above, there is no justifiable reason to limit these athletes’ fundamental rights. There is no goal pursued by the Anti-Doping Organizations that a retroactive award would inhibit. The sanctions are a violation of the law."

If CAS were to agree, Gatlin's 2006 positive test would be considered his first and he would be eligible for a two-year ban. That would allow him to return to competition in May, a month ahead of the U.S. Olympic trials in Eugene, Oregon in June.

One pitfall Gatlin faces, however, is that the IAAF will have required him, as a banned athlete, to have been available for random, out-of-competition drug tests the past 12 months prior to his potential return. It is not known if Gatlin has been approached by anti-doping officials or been subjected to such tests.

Graham, who faces federal obstruction charges stemming from the BALCO investigation, goes to trial in June before Judge Susan Illston in San Francisco, CA.