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Abstract

In United States Anti-Doping Agency v. Montgomery, a Court of Arbitration for Sport (CAS) Tribunal found Olympic track and field gold medalist and former world record holder Tim Montgomery (Montgomery) guilty of doping. The Tribunal determined, after considering the evidence presented by the United States Anti-Doping Agency (USADA), that Montgomery had taken THG, a prohibited performance enhancing drug known in colloquial parlance as "the Clear." As punishment, Montgomery was banned from competition for two years, stripped of his on-track achievements dating back to March 200l, and ordered to repay an estimated $1 million in earnings. Montgomery is an extraordinary case because Montgomery was found guilty of using THG without ever testing positive for the drug in an in-competition or out-of-competition drug test. Thus, the Tribunal's finding dramatically altered the landscape for Olympic athletes who face charges that they took a banned performance-enhancing substance. Historically, the bright line evidentiary rule has required an Olympic athlete to test positive for a banned substance in an officially administered drug test before he or she could be found guilty of doping. The Montgomery decision eradicated this rule and established that an athlete could be found guilty of doping without evidence of a positive drug test. In rendering its verdict, the Montgomery Tribunal relied heavily upon United States Anti-Doping Agency v. Collins, a December 2004 decision by a North American Court of Arbitration for Sport (NAS) Panel. Collins was the only previous instance in which an athlete charged with doping by the USADA had been found guilty without evidence of a positive drug test, known in Olympic circles as an "analytical positive." The CAS is the "Supreme Court" of Olympic issues and the NAS is a lower court subject to CAS review; therefore, the Collins Panel's landmark decision did not carry precedential weight worldwide until the Montgomery Tribunal reiterated its holding. Now that a CAS Tribunal has provided its stamp of approval to the idea that an Olympic athlete can be found guilty of doping without testing positive for a banned substance, a new path to conviction has been paved for Olympic prosecuting agencies like the USADA. The question now becomes: Was Montgomery decided correctly? Also, how will it alter the legal landscape and affect future Olympic doping cases? The case will no doubt carry enormous precedential weight; thus, the right to a fair hearing for future Olympic athletes accused of doping in "non-analytical positive" cases is also at stake. Ultimately, this Note does not support the Tribunal's decision in Montgomery because it wrongly characterized the proceeding as civil instead of quasi-criminal. This error led to a series of missteps that resulted in Montgomery being unfairly penalized because he was not accorded a fair hearing. In sum, the Tribunal's finding in Montgomery was incorrect because Montgomery was not afforded the due process appropriate to a quasi-criminal proceeding. In the haste to clean up Olympic sports and combat the perception that many athletes competing are "dirty," the CAS must carefully consider how the reasoning that led to a guilty verdict in the Montgomery case could lead to the unjust conviction of athletes in future non-analytical positive cases. The CAS must establish proper procedural safeguards for this kind of Olympic doping proceeding. In Montgomery, the Tribunal failed to establish the right blueprint. At stake is the credibility of the still fledgling CAS. The world watches, wondering: can the CAS emerge as a global body with true worldwide respect apt to handle Olympic doping cases with an avowed air of neutrality? If the CAS is seen as nothing more than a shill for prosecuting agencies like the USADA, the current system of Olympic doping jurisprudence is doomed to fail.

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