What to make of Montgomery ruling

Updated: December 13, 2005, 5:21 PM ET
By Shaun Assael | ESPN The Magazine

Before he was hit with a two-year ban, Tim Montgomery had already become a track and field footnote. His world-record time in the 100 meters had been broken and promoters were scared to call him.

Tuesday's decision by the Court for Arbitration in Sport, which upholds doping charges against him, now makes Montgomery a legal footnote, too.

For the first time, it affirms the right of investigative bodies such as the U.S. Anti-Doping Agency (USADA), which sought the ban, to bring doping cases without having a positive drug test.

Since CAS also wiped out all of Montgomery's records going back to 2001, the decision will be the most enduring part of his career. Here's an inside look at the biggest doping case since Ben Johnson was stripped of his gold medal in Seoul.

The Case
USADA had an uphill slog.

Although published reports suggest that Montgomery told a federal grand jury that he took performance-enhancing drugs, USADA wasn't allowed to see the testimony, much less use it as evidence. That drove agency lawyers up the wall, especially since the testimony had been leaked to the press.

Instead, its prosecutors had to build a case around drug calendars seized during the BALCO criminal investigation. USADA would have liked BALCO's owner Victor Conte to testify so he could interpret those records. But Conte, who pleaded guilty to federal steroid charges and is now serving a four-month federal prison sentence, refused to answer a subpoena. Montgomery also refused to testify.

(Prosecutors considered subpoenaing this writer for a December 2004 piece co-written in ESPN The Magazine with Conte, in which he admitted giving Montgomery and his partner, Marion Jones, designer drugs. But they chose not to.)

That left prosecutors with just two witnesses: IRS agent Jeff Novitzky, who led the federal investigation into BALCO, and sprinter Kelli White, another Conte client who has already accepted a two-year ban. White testified that Montgomery had admitted drug use to her.

"Ms. White's testimony was both credible and sufficient to establish" guilt, the CAS panel wrote. White also testified against star sprinter Chryste Gaines, who was also hit with a two-year ban Tuesday.

The Issues

Montgomery's defense desperately wanted the court to rule that USADA needed a positive drug test to bring a case. The CAS judges rejected that thinking.

They wrote that the absence of a particular evidence "must not prevent sports authorities from prosecuting such offenses with the utmost earnestness and eagerness, using any available method of investigation."

USADA's general counsel, Travis Tygart, told ESPN.com, "The Supreme Court of sports has confirmed the importance of this weapon in our arsenal. We are very pleased."

Two other issues that were being widely watched involved how to treat an athlete who refuses to testify and where to set the burden of proof.

CAS handed the prosecutors a partial victory on the first issue, saying that judges who decide these cases can "draw an adverse inference" about an athlete's refusal to testify in his own defense. The judges, however, sidestepped the issue in this case, saying that they didn't need to take that step because the evidence against Montgomery was strong.

The defense scored bigger on the burden of proof issue. World Anti-Doping Agency rules state that arbitrators must use a standard called "comfortable satisfaction" to weigh evidence. But that's essentially a made-up term without foundation in criminal law. Until today, no one quite knew what that meant.

The CAS judges clarified it by saying it means the same thing as "beyond a reasonable doubt." That didn't help Montgomery or Gaines. But it's a net win for athletes because it gives doping prosecutors the same burden of proof as criminal ones.

Howard Jacobs, the Los Angeles attorney who helped to argue the case for Montgomery said he was disappointed with the ruling.

"Despite USADA's claim that they had thousands of pages of documents that proved Tim's guilt, this was basically a single witness case, and that witness was Kelli White," Jacobs told ESPN.com.

Montgomery is eligible to compete again in June 2007, meaning he'll only miss one outdoor track season as a result of the suspension.

Shaun Assael is a senior writer for ESPN The Magazine.

• Senior writer for ESPN The Magazine
• Author of "Wide Open: Days and Nights on the NASCAR Tour"; the New York Times best-selling "Sex, Lies and Headlocks"; and "Steroid Nation"

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