- Bonnie D. Ford, ESPN Senior Writer
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Wayne Odesnik, who pleaded guilty last month to importing human growth hormone into Australia, was nonetheless allowed to compete in last week's U.S. Men's Clay Court Championships in Houston, where he advanced all the way to the semifinals before losing to Sam Querrey.
More than the usual skidmarks were left in the dirt as a result. Some competitors in the draw there played matches they'll never be able to get back.
Odesnik took Querrey the distance -- three tough sets -- Saturday. A number of writers and fans publicly and subjectively heaved a sigh of relief when Odesnik lost, as if each successive win made things worse. But in my opinion, the embarrassment for the sport would have been just as deep if he had lost in the first round of qualifying.
Why was Odesnik in Houston, beating players who had to face questions about how uneasy or resentful they were at having to face him, while he maintained legally advised silence on the matter?
Both the International Tennis Federation and the ATP maintain they were powerless to keep Odesnik off the court last week. After listening to their explanations, I'm still not convinced -- and I'm not alone. At the very least, tennis got caught with its shorts down on this one and needs to tighten its rules so there is no repeat of this distasteful scenario.
Under the World Anti-Doping Agency code, the possession of a banned substance is on par with a positive test and punishable by a two-year suspension. Possession is an offense considered as a "non-analytical" violation based on evidence of doping that doesn't arise from a positive test (i.e., drugs uncovered in a police search, financial documents or eyewitness accounts).
Furthermore, the WADA code includes this language:
"The facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be irrebuttable evidence against the Athlete or other Person to whom the decision pertained of those facts unless the Athlete or other Person establishes that the decision violated principles of natural justice."
Translation, for our purposes: If you plead guilty in a court of law to possession of a banned substance, there's no ambiguity.
Provisional suspensions are now mandatory under the WADA code after a positive A sample, although the athlete involved can request a hearing to dispute that. The rule is designed to prevent athletes from competing during the time between the A sample analysis and the B (or backup) sample analysis, logging results and earning prize money or rankings points that subsequently have to be scrubbed.
Yes, there's a risk involved: If the B sample comes back negative -- which it very seldom does -- the athlete has been denied the chance to compete in the interim. But international anti-doping officials decided it was better to safeguard the greater good of the greater number.
The WADA code also gives federations the option to impose provisional suspensions for the non-test sort of violation committed by Odesnik, provided the athlete gets a hearing either before or "in a timely manner after imposition" of the suspension.
Here's the loophole: Each federation that is a signatory to the WADA code has rules that overlay but don't contradict that code. The ITF rules are silent on the subject of provisional suspensions for non-analytical results. It's not addressed one way or the other.
It does seem logical to withhold an actual suspension until a court verdict, just in case the defendant is exonerated. But couldn't the ITF, which learned of Odesnik's case in January, have conducted its investigation concurrently with the Australian case and been ready to act when the guilty plea was entered? Or expedited the proceedings to get them done before Odesnik's next tournament?
At the risk of sounding glib, it doesn't seem as though the questions the sport needed to pose of Odesnik would have been that complex: Did you pack your own bags? Were any of the items you traveled with out of your immediate control after the time you packed them? Did anyone unknown to you ask you to carry an item on this flight?
The ITF's stance is that its disciplinary process couldn't start until Odesnik's criminal case concluded. "Holding two independent investigations into the same matter could have prejudiced the player's ability to defend himself," Stuart Miller, who oversees anti-doping policy for the ITF, wrote in an e-mail.
"I'm acutely aware that this is a sensitive issue, but be assured that we're trying to expedite this matter as best we can."
I'm a journalist, not a lawyer, but I still don't understand how a confidential inquiry by the ITF could have affected a case in the Brisbane Magistrate's Court.
WADA director general David Howman wondered the same thing.
"I think they would have been within their rights [to conduct an investigation while Odesnik's court case was pending], but haven't chosen to," Howman said. "It's a conservative approach. Sometimes you can overbalance backing the rights of the individual. But what about the rights of the other athletes? We have to stand up for those who are affected by the cheater."
Howman said he regrets now that provisional suspensions weren't made mandatory for cases like this, but that oversight probably can't be rectified until the code is next revised in 2012. However, there's nothing preventing the ITF from incorporating the option to provisionally suspend into its rules.
The U.S. Anti-Doping Agency also received notice of the allegations against Odesnik in January, but it doesn't have jurisdiction over cases involving tennis players as it does over athletes in some other sports, such as cycling. That's a federation-by-federation rule.
USADA chief Travis Tygart wouldn't comment on the ITF's handling of the case except to say that keeping known anti-doping violators out of competition should be an extremely high priority. He said the WADA code offers the tools to do that, and "the clean athletes demand it."
Odesnik, No. 111 in the ATP rankings this week, has denied using HGH, the hard-to-detect substance athletes use to gain steroid-like benefits in strength and recovery. He has not failed a drug test that we know of. Odesnik said in Houston that he'd been tested twice this year while he was in Australia. His Miami-based lawyer, Christopher Lyons, declined to comment for this story.
At the risk of sounding glib, it just doesn't seem as though the questions tennis officials need to ask Odesnik are that complex: Did you pack your own bags? Were any of the items you traveled with out of your immediate control after the time you packed them? Did anyone unknown to you ask you to carry an item on this flight?
Perhaps my rationale will be revealed as faulty when the ruling comes down. What's indisputable is that Odesnik's fellow players were the ones whose jobs were affected by this limbo.
Odesnik was the last alternate slotted into the Houston draw due to a player withdrawal. What about the rights of the guy in line after him? Odesnik went on to defeat three players who will never know what would have happened if they'd faced someone else, and he kept Querrey on the court for two hours and 48 minutes. Querrey would never use that as an excuse for his eventual loss to Juan Ignacio Chela in the final, but it's also true that he cramped and became fatigued in the third set of that match. Would that have happened anyway? Again, we'll never know.
So where was the ATP in all this? There's a provision in the tour's Code of Conduct -- which, incidentally, includes page upon page of minutiae about what a player can and can't wear on court -- allowing the tour to take action against players who commit "Conduct Contrary to the Integrity of the Game." Offenders are entitled to a hearing and can be suspended up to three years and fined up to $100,000. If packing eight vials of HGH in your luggage doesn't qualify, what does?
ATP spokeswoman Kate Gordon said: "We have rules in place which govern the investigation of a player and, as always, we are abiding by these rules. We are taking the matter very seriously and aim to have a resolution as quickly as possible." She declined to comment on any other specifics, including the reason why the ATP couldn't have gotten the ball rolling before March 26, when Odesnik's guilty plea was made public.
Players in the individual sport of tennis have to rely on their governing bodies to keep the playing field even. The system failed them this time around. The ITF and the ATP have the ability to suspend Odesnik and void his results and make him give back the $22,685 he won in Houston, but if and when they do, they'll never be able to completely unscramble the omelet. The players in his quarter of the draw can't replay those matches.
Athletes governed by the WADA code are held to a strict standard in doping cases. It doesn't matter how a prohibited substance got into your body. If it's there, you have to take responsibility for it. That has resulted in harsh punishments for some relatively minor or inadvertent offenses. By the same standard, it shouldn't matter how HGH got into Odesnik's hands. He admitted in a court of law that it was there. That should have constituted due process, and he shouldn't have been playing last week.
Bonnie D. Ford covers tennis and Olympic sports for ESPN.com. She can be reached at firstname.lastname@example.org.
1dMarc Stein and Ramona Shelburne