Legal implications of leaked USADA investigation report

Friday May 26th, 2017

Editor’s note: The 260-page interim investigation report has not been confirmed by USADA or authenticated. Please note that all comments below are written assuming that the report is real and authentic.

• To me, the most telling part of the purported report is the unanswered question: Why has USADA not punished Salazar? The report details numerous times when Salazar appeared to break anti-doping rules and other USADA rules. Further, for several years, USADA has been aware or had strong suspicions of those apparent violations. In fact, USADA has been on notice of Salazar potentially breaking doping rules since at least August 2013 when The Wall Street Journal story on Salazar ran. It stands to reason that USADA knew before then, including through Salazar's "hide the ball" email in January 2012. 

On one hand, it's admirable that USADA is so committed to a complete, thorough and lengthy investigation of Salazar that it won't find Salazar at fault and punish him until USADA is completely certain.

On the other hand, USADA hasn't always adopted that type of approach. With Lance Armstrong, for example, USADA seemed to act with more haste. 

• Let's not forget the report's authenticity has not been confirmed and, even if it proves authentic, USADA could still punish Salazar and others involved. Still, assuming the report is real, the delay in punishing is difficult to fully understand given that this report details numerous anti-doping violations.

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• If the document is authentic and contains untrue statements about Salazar and others they could sue USADA for libel. USADA, however, would argue that 1) USADA makes clear the document is interim and not final; and 2) the document should be considered privileged since it is a response to a subpoena and was expressly intended to be confidential.

• While USADA correctly notes the report is a response to a subpoena from a state medical licensing agency, the report is remarkably extensive. I can only imagine how many hours went into this document and accompanying investigation. It's clear the investigation was motivated by more than a mere desire to comply with an out-of-state subpoena. The fact that it is called a "report" rather than a response or answer is also suggestive of a broader investigative goal.

• It is very hard to discern from the report if any criminal acts were committed. This is not surprising. USADA's point of interest is—understandably—whether USADA anti-doping rules were violated, not whether criminal laws were broken as USADA is not authorized to make such determinations. That said, if the report proves accurate, drug trafficking, conspiracy and even racketeering charges are plausible, as it the report suggests drugs were trafficked across state as part of an organized operation. The possible application of criminal law is a complex topic, however, and in some potential cases the statute of limitations might have expired. It's also not clear if the FDA, DEA or Department of Justice or related Texas law enforcement agencies had any involvement in this investigation or awareness of it.

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