Anti-doping agency wants Tyson Gay defamation case dismissed
Posted Saturday, Jul. 12, 2014
BY MAX B. BAKER maxbaker@star-telegram.comFORT WORTH — As Olympic sprinter Tyson Gay took a victory lap in France last week after winning the 100-meter dash, attorneys in Fort Worth representing him and the U.S. Anti-Doping Agency were seeking to dismiss a lawsuit filed against them by the athlete’s former coach.
Jon Drummond, a one-time TCU track star who trains athletes in Arlington, earlier this year filed a defamation lawsuit against Gay, the agency and its executive director, Travis Tygart, saying that they falsely accused him of providing performance-enhancing drugs to the world-class sprinter.
Drummond, who coached Gay from 2007 to 2012, faces a possible lifetime ban from the sport if the USADA eventually finds that he violated its policies.
In response, the agency says Drummond’s defamation claims are based on protected and confidential statements made during the agency’s internal investigation and that the coach has not provided adequate proof that Gay or Tygart said anything about him publicly.
Repeating arguments used to throw out lawsuits by disgraced cyclist Lance Armstrong, the agency’s lawyers — after successfully moving the lawsuit from state to federal court — also contend that Drummond wants to circumvent the established process for doping cases.
With the Ted Stevens Olympic and Amateur Sports Act, Congress required that arbitration be the exclusive forum to resolve disputes relating to the eligibility of U.S. athletes and coaches involved in Olympic sports, the documents state.
In fact, the agency’s arbitrators already have conducted a preliminary inquiry and set a final arbitration hearing in September in Dallas to review the case against Drummond, according to documents filed last week. Three independent arbitrators have been appointed to hear the case.
“Congress made clear choices to keep disputes involving the eligibility of amateur athletes and coaches ‘out of the federal courts,’ ” the documents state. If allowed to proceed, Drummond would be “litigating the truth or falsity of an arbitration witness’s testimony in two forums — in court and in arbitration — in violation of the express intent of Congress.”
The USADA wants U.S. District Judge Reed O’Connor, if he decides not to dismiss the case, to at least stay the proceedings until after the arbitration process is completed.
Mark Whitburn, Drummond’s attorney, did not return calls from the Star-Telegram seeking comment. Drummond also did not respond to phone calls seeking an interview.
Chad Arnette, the Fort Worth attorney representing the anti-doping agency, referred all questions to USADA.
“We view this lawsuit as a misguided attempt to undermine the established arbitration process agreed to by the entire Olympic movement that is in place to protect the rights of all clean athletes and uphold the integrity of sport,” said Annie Skinner, spokeswoman for USADA.
Gay, whose win Monday was his first after serving a one-year ban for taking prohibited substances, has been reluctant to discuss his suspension, citing USADA rules. His agent also did not respond to a request from the Star-Telegram for interviews.
But after his victory in Montreuil, France, Gay told The Associated Press that his doping suspension was a learning experience.
“I’m learning to be more responsible,” Gay is quoted as saying. “As an athlete, you have to be responsible for your supplements.”
Disputed cream ingredientsDrummond is a legendary track and field athlete who competed for the U.S. for many years. In 1993 and 1999, he won gold medals at the World Championships in the 4x100 relays, and in 2000 he won a gold medal at the Sydney Olympics in the same event.
He retired from competition in 2003 and began coaching, sometimes working out of gyms in Arlington or at the University of Texas at Arlington track.
He coached Gay in Tarrant County at various times over five years.
At the 2012 London Olympics, he coached the men’s and women’s 4x100 relays, with the latter team shattering the world record and winning a gold medal.
Drummond was so well-respected among his peers that he served as chairman of the USA Track and Field’s Athletes Advisory Committee. In his lawsuit, Drummond said he advocated against the use of performance-enhancing drugs.
At no time, Drummond contends in court documents, did he encourage Gay to take prohibited substances nor did Gay test positive for any banned material while he was working with him.
But Drummond concedes in court records that in June 2012 he introduced Gay to Clayton Gibson III, a chiropractor who has a sports medicine practice in Atlanta, after Gay needed help recovering from nagging injuries.
Drummond said he had heard good things about Gibson from other athletes he trusted, including one he had coached, Marshevet Hooker, a University of Texas standout sprinter and long jumper, court records state. She has lived in Grand Prairie.
Gibson provided Gay with creams that had labels referring to substances such as DHEA, a hormone that is a precursor to testosterone and estrogen and can be used to boost performance. Gibson said the labels did not truly reflect the food-based ingredients; he said the labels were for marketing to non-athletes not affected by the ban.
Gibson did not return a phone call from the Star-Telegram seeking comment.
Later, after Gay received a shipment of the products in Eugene, Ore., from the chiropractor, valued at $9,000, Drummond “unequivocally” recommended that Gay discard them, according to court documents, because he did not feel that they were “safe and appropriate.”
In 2013, after Drummond stopped coaching Gay, he heard that Gay had tested positive for banned substances and that he was “falsely contending” that his coach had encouraged him to use the creams provided by Gibson.
After meeting with USADA, Drummond remembered a bag of substances that Gay had received in 2012 from an unknown source. The coach said he told Gay not to use anything from the bag, which Drummond stored under his sink and eventually turned over to the USADA.
Eventually, Drummond learned that Gay told USADA that his coach had encouraged him to use the creams from Gibson and that he had injected him with substances from the bag during 2012.
Gay, who cooperated with the anti-doping agency’s inquiry, received a one-year ban in May, backdated to June 2013, avoiding the typical two-year punishment. He also surrendered his silver medal from the 2012 London Olympics 4x100 relay team. Gay also gave back money he earned.
The International Association of Athletics Foundation and the World Anti-Doping Agency both announced last month that they would not appeal Gay’s one-year ban for doping. In a brief statement, the IAAF said the sanction was “appropriate under the circumstances.”
Tygart has praised Gay for “accepting responsibility for his decisions and fully and truthfully cooperating” with the agency.
When Gay explained testing positive for banned substances last year, he said that he didn’t have “any sabotage story.” He simply said that he had put his trust “in someone and was let down.”
Revealing footnoteUSADA and Gay have been careful in what they’ve said — or not said— about the case.
In its latest pleadings to have the case dismissed, USADA said statements referred to as defamatory by Drummond allegedly come from an affidavit taken in April from Gay during disciplinary proceedings, which was never publicly quoted by the athlete or by Tygart, court documents state.
“Courts in Texas and elsewhere routinely recognize the well-established and absolute immunity of parties and witnesses from liability for statements made when testifying in judicial proceedings,” documents filed by USADA’s attorneys state.
USADA’s attorneys also point out, in a footnote, that the letters Drummond received in May telling him there was an inquiry say that no one is suppose to “publicly comment or disclose information” until the case is concluded. Disciplinary proceedings against Drummond were only confirmed when the coach filed his lawsuit and his attorney’s released a statement, records show.
“USADA at all times maintained these statements and Mr. Gay’s affidavit as confidential and have disclosed that affidavit only within the confines of the established disciplinary process,” according to court records.
The anti-doping agency in court records also made it clear that the Sports Act gives the U.S. Olympic Committee exclusive jurisdiction over amateur athletic activities. It formed USADA in 2000 to handle investigations of doping allegations and rule violations.
National governing bodies such as USA Track and Field agreed to submit their disputes — including anti-doping rule violations — to arbitration. The final body for disputes in Olympic sports is the Court of Arbitration for Sport in Lausanne, Switzerland.
Max B. Baker, 817-390-7714 Twitter: @MaxBBaker
