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July 16, 2004

Mark Young

Richard Young

GREG SHARKO: Good morning, everyone. This is Greg Sharko here with David Higdon and Richard Ings. Mark Young, the ATP general counsel, will be joining in for today's call. In addition, we have Mr. Richard Young from the law firm of Holme, Roberts & Owen in Colorado. Mr. Young is a well-known anti-doping expert and he helped conduct the investigation last summer. I'll let Mark Young have some opening statement here.

MARK YOUNG: Good morning and thank you for joining us. Last July, ATP announced that it had seven cases involving low-level nandrolone readings. These cases were ultimately found not to be doping offenses by the independent tribunal processes under the Tennis Anti-Doping Program. At the time the tribunals dismissed the cases based on the inference that the cause of the positive tests was an electrolyte supplement distributed by ATP, which ATP could not disprove. In August, in the interest of public transparency, ATP requested that WADA, the World Anti-Doping Agency, review ATP's investigation into the electrolyte and the administration and processing of the seven player samples. This morning WADA published on its website its report of that review, as well as ATP's response to the report. We're pleased that WADA has made significant findings verifying the integrity of ATP and its administration of the Tennis Anti-Doping Program, the seriousness with which we confronted this situation and the independence of the tribunals in each of the seven cases which made the decisions. ATP has acknowledged it still does not know the cause of the peculiar pattern of low-level nandrolone readings. We will continue to investigate the cause of the low-level nandrolone readings through scientific and other means in an ongoing effort to determine the source.

GREG SHARKO: We'll open it up to questions.

Q. I'll start with Mark. I heard that opening. First of all, the report does say that the decisions were made to exonerate these players on clearly unsustainable grounds. In other words, they doubt that they should have been cleared remains. What do you say to that?

MARK YOUNG: Well, obviously these decisions are made based on rules and overriding laws. And the decisions, as the report acknowledges, were made based on the facts presented and available at the time. To say that they are unsustainable, as a lawyer, I simply disagree with that. The decisions applied sound legal principles to the evidence that was presented. Underlying the comment I think is WADA's conclusion that they are saying for certain that these tests were not the result of the supplement distributed by ATP. The fact is, as I said in my statement, and I'll probably say repeatedly, we simply do not know the source of these positive readings. What we do know is the scientific experts tell us that there's some commonality to it, either through common source or ingredient. And that second possibility, while some may doubt, that second possibility still exists, and that means that you can't exclude any possible source until you know for sure what it was. To say that there are unsustainable grounds, I just don't agree with that characterization.

Q. The other thing, Mark, is the suggestion by WADA or the recommendation that the ATP does not test its own players, suggesting that maybe the ITF would be in a better position. Obviously, the ATP feel there still would be a conflict of interest if the ITF did the testing because they're involved in the Grand Slams, so any players who came through the Grand Slams with positive tests, the ITF would hardly be sort of an independent arm. What do you say to that?

MARK YOUNG: Well, I know exactly the passage you're referring to. I say really the following: Any governing body in a sport is going to have a potential conflict of interest somewhere along the way. The WADA report compliments us on the fair rules, the sound rules that we have in place, and also compliments us on the integrity and seriousness with which we went about enforcing the rules. So I think, given that any governing body could have a conflict of interest, they have to rely on the quality of their rules and the professionalism of the people who enforce them. And we've gotten high marks from WADA on both counts.

Q. The fact is that most governing bodies, the ITF included, are not 50% owned by the athletes. Do you not think, as the WADA report mentions, that opens up to the perception of being a conflict of interest, and in a way the perception is almost more dangerous than anything else?

MARK YOUNG: Well, I mean, obviously I can't argue with an asserted perception. I think it really depends on the perspective that you look at this. In some ways, the ATP is the best model of anti-doping rules because it's true that our players are involved in the governance of the organization, and the players are the ones that review and enact all the rules, and it's the players that pushed for a strong Anti-Doping Program. And we're proud at the ATP that we've been leaders in that area.

Q. Where do you see this going from here? Is this the end of the matter or do you feel there is still some way to go? And could these seven players still be in danger of being -- of having this case reopened?

MARK YOUNG: No. And I'm glad you asked that question. The WADA report does make a statement that leaves open the possibility that these cases could somehow be revisited. Simply put, as a matter of the applicable rules and law, these cases are done. They're final and binding decisions. The time for any appeal has long since passed, and they're over. In terms of where we go in the big picture, as we have said publicly a number of times, we are continuing to investigate this. We have recently appointed new experts to a panel to take a fresh look at this, that includes Bob Ellicott, who is a QC from Australia, and Peter Hemmersbach, who is the director of the WADA-approved Oslo lab. We have invited WADA to appoint a third member. At the moment, WADA has chosen not to be involved but has offered help in the area of scientific research, which we're going to fold into the investigation. So we're going to continue to look at this until hopefully we find the cause of this peculiar pattern of results.

Q. You still contend that the ATP is the best organization to investigate this problem?

MARK YOUNG: Well, we're the only one at the moment that's shown any interest in doing it, and we believe that somebody has to do it.

Q. Could this body that you set up be any way interpreted as being independent?

MARK YOUNG: Again, I think you're heading at perception. But the reality is that we have told them that they control which direction they want to go. They will look at whatever they want to look at. You know, we've empowered them. We've empowered them to be fully independent.

Q. Mark, what are the players supposed to be doing in the meantime anyway? They have all said they need something.

MARK YOUNG: Well, that's a bit of a separate area. You're right, the players have said to us in tennis that the advice "simply don't take supplements" is just not something that's going to get through. They feel as elite athletes that they need something to help them in their nutrition. I'm not a doctor, obviously. I'm aware that medical professionals may disagree with that, but the fact is that the players' mindset is they need aids in their nutrition. So we formed some months ago a supplement task force in an effort to see if we can't help the players identify some supplier of minimal vitamins and other supplement products that would at least help reduce the risk. Rich Young can speak to this in more detail. But I think the primary problem with supplement contamination is the lack of regulation. And one area that we've focused on - lack of regulation of the manufacturers, that is. One area that we've tried to focus on is to try to find pharmaceutical companies throughout the world that might be interested in supplying vitamins and other supplements that are controlled and protected through the same manufacturing procedures and ingredient supplier purchases as their pharmaceutical products.

Q. Richard, it is a fact that the levels of nandrolone discovered, they're not performance-enhancing, or are they?

RICHARD YOUNG: Let's take that apart. If you take a large load of a nandrolone precursor, like a 19-norandrostenedione, that you can buy at a health food store, or you take nandrolone by injection, or you get a tiny millionth of a gram contamination of a vitamin, at the end of the day the picture in your urine will look the same. At the tail, tail end of the excretion of the injection or the big load of 19-norandrostenedione looks exactly the same in urine as a test done very shortly after you took the contaminated supplement. Are you with me so far?

Q. Yes.

RICHARD YOUNG: And so if all you got was a millionth of a gram from a contaminated supplement, of course it wouldn't be performance-enhancing. If you got an injection from nandrolone, it would be performance-enhancing. And so the point is, When you look at a urine test, is it performance-enhancing? I can't tell you because I can't tell you the source. If the question is, If you have a positive test because of trace contamination of one of the -- of a clean supplement with a 19-nor precursor? Of course, it's not performance-enhancing.

Q. Rich, just to follow up on that, is it not the case, though, if an athlete were to inject, the level of nandrolone would dip in the graph very rapidly and then level out at a low level for a much more considerable time. Is it possible at this stage to rule that out completely as a possibility?

RICHARD YOUNG: No, you can't rule anything out. I mean, the injection would be a lot more likely because, you know, a number of these players have been repeatedly tested, and you would have seen it in tournaments before and in tournaments after. In a number of cases, I think you probably could rule out injection. What you couldn't absolutely rule out is that somebody was taking a 19-nor precursor, norandrostenedione or something like that. Because in that case what you have is very high readings in the beginning and it dips sharply, then it sort of bumps around at low levels for the last, you know, four, five, six, seven, eight, nine, ten days after use, and then it goes away. So you can't rule that out.

Q. So when you say "it dips sharply," what sort of time span are you looking at there?

RICHARD YOUNG: I don't have the excretion curve in front of me. But my recollection is that you would expect -- if you take, you know, the kind of dose that somebody that is using 19-norandrostenedione would take, you could be up in the thousands shortly after, and it's gone typically within a week to ten days. It drops very sharply down to the under ten level my recollection is probably after four days maybe, something like that. It's a steep curve that flattens out in a week to ten-day period.

Q. The assumption that this is a contaminant of some kind, be it the supplements in the ATP or another supplement of some kind, it's wrong to assume that because it could, in fact, be somebody intentionally using it with the intention of enhancing their performance.

RICHARD YOUNG: I don't think you can rule out any assumption under these circumstances because we simply don't know. I mean, in the beginning it looked an awfully, awfully like a supplement contamination. I'd have a real different view of this if these were just unrelated, isolated cases. But what makes this particular situation unique is the fact that there is a common analytical fingerprint to all these cases, which the scientists have told us, and not just one, but everybody that's looked at it, that this is coming from a common source or a common ingredient. So it's not like, you know, there's some guys out there that are doping, there's some guys out there getting contaminated supplements, everybody's off on their own. There is something consistent and unique with this common fingerprint that you're seeing in men's tennis that you don't see anywhere else. So it could be a supplement that we still haven't found. It could be some sort of intentional doping. Let me take a step back. It could be a supplement we haven't found, although we've looked at a lot of supplements. It could be intentional doping. But if you look at the demographics of the people with the positive and elevated tests, they have nothing to do with each other. I mean, it would be one of the most remarkable conspiracies in the history of man for those people to be organized together. So neither one of those makes a great deal of sense. But, you know, we also don't have any other great explanations.

MARK YOUNG: Just to echo what Rich said at the end, we're talking about players from all over the world, all countries, all different rankings. Some of these guys - and again when we're talking about "these guys," we have been looking at our investigation at trace-level readings. As we know, there have only been these seven cases, and another one after that. But we're talking about guys that vary in rankings from, you know, some guys that play at Tour-level tournaments to guys that have never even played at an ATP Tour tournament, that are playing at Challengers. The diverse background of these guys, both in terms of their nationality and the type of tennis they're playing, it just goes across the board in every way.

RICHARD YOUNG: They don't speak the same languages, they come from 20 different countries, they don't have the same coaches. It's the kind of deal where some of the guys with elevated tests would be getting autographs from guys that have elevated tests. And it's a little hard to believe they would all be part of the same conspiracy.

Q. If in the future a player was found to have tested positive for nandrolone, would it be possible for the ATP to prosecute, given what's happened, or are we in a situation where if there are nandrolone findings from now on, the same arguments will apply that applied to Rusedski and the other seven? When will the ATP sign up to the WADA code? How near are they to doing that?

MARK YOUNG: I'll take this, Rich. On the first question, would it be possible to prosecute? Certainly it would be possible. We believe, given the ongoing test results, that probably the same analysis wouldn't apply, that is the estoppel analysis. But that is purely speculative, and I don't want to go any further with it than that. I mean, who knows. With eight cases so far, varying in time, estoppel was applied. So who knows. With regard to the WADA code, I think your question was, "Have we accepted that's the key buzz word that WADA uses?" As we know, since the Copenhagen Convention, WADA has sought the "acceptance" of governing bodies and governments of the code. What ATP has done, is rather than simply sign a pledge, we went about the course of 2003 and substantially revised our anti-doping rule so that as of January 1, 2004, it complies at this moment, and since the beginning of the year, we have a rule in effect that complies with the WADA code, was modeled after the WADA code in every respect except three areas. Those three areas are: One: Providing athlete names to WADA prior to the finding of the doping offense. That's just something that is inconsistent with our confidentiality provisions as we have applied them in the past, and we don't really see the reason for that. Two: Providing WADA a right of appeal to the Court of Arbitration of Sport. And, Three: Providing some sort of whereabouts provision for athletes in out-of-competition testing. In all three of those areas, as our response states -- we are looking at those and we are in active conversations with WADA. But I again want to emphasize, those are three specific areas. Other than that, we are fully compliant with the WADA code. Going back to the beginning, that is something that many sports federations who have actually signed the acceptance form have not yet done. So I believe that we are way down the road in terms of progress compared to other sports with respect to the World Anti-Doping Code.

Q. Do you have an ETA on when it will be signed?

MARK YOUNG: Well, again, from my perspective, the more important thing to look at is, "What are your rules that you're actually enforcing and implementing?" As I've said, our rules are already in place except for those three areas, and we're currently looking at those and discussing them with WADA.

Q. In relation to page 12 of the WADA report, paragraph 17, where it says, "Essentially the ATP advised tribunals in case six and seven of the findings by the labs at the lack of contamination, updated the inquiry and submitted it was not the electrolyte which could have been the source." Is that factually correct? If that is true, why did cases six and seven not go to CAS?

MARK YOUNG: The one caveat I want to give myself is I follow the gist of your question, but without reading exactly the paragraph, I don't want to say that paragraph is word for word true. But I understand the questions. What happened in cases six and seven is by the time those cases were being adjudicated, we were aware -- as you know, we stopped distributing the electrolyte in May of 2003. The test results showing this unique analytical fingerprint stopped, we didn't see any more until September, when it was reported to us that there were two to four, I can't remember exactly, but there were a few more tests that came from urine samples that were taken after we stopped distributing the electrolyte that showed this pattern. And, of course, we tried to introduce that evidence to the tribunals. We felt that it was relevant, and we felt that it might help us meet the burden to avoid the estoppel, that is to show it wasn't the electrolyte. I must say, we weren't surprised that the tribunals ruled that that evidence could not be admitted because in offering the evidence, the ATP was unwilling to disclose the names of the players that those tests came from and unwilling to disclose the names of the players that had previously tested with the same pattern. The reason we were unwilling to is because we're not permitted to under our confidentiality provisions of our anti-doping rule. It's not surprising the tribunals ruled it inadmissible because they felt it was unfair to allow us to present evidence without full disclosure and the players the opportunity to go test the evidence, interview these other players themselves.

Q. Would it be fair to say, nevertheless, that throughout those whole proceedings, the eight players that have got off have got off because of a theory rather than actually any facts?

MARK YOUNG: No, I don't think that is fair, because the allegation was that the ATP was distributing supplements. Supplements carry with them the risk of contamination. And we conducted an investigation and, number one, ascertained that we were, in fact, distributing supplements through our trainers. As we said repeatedly, the pattern here, all low-level tests, common source, it indicates - again we don't know - but it indicates to many who look at it some form of inadvertent doping. And until we know what the source of that is, you can't exclude any possibility.

Q. It might seem strange to many people that the ATP quite so readily accepted in the first place that it might have been or might not have been their trainers who were handing out contaminated supplements.

MARK YOUNG: I think that's really a leap from what happened to your statement. What happened was we immediately got Rich Young to investigate, and our investigation, in fact, supported the allegations. But ultimately all of these facts were presented to the tribunals which WADA has confirmed were independent and the tribunals are the ones who made that decision.

RICHARD YOUNG: I don't think that the facts that were on the table as of June of 2003 really are in dispute by anybody. You know, I personally talked to the trainers, and the supplements, particularly the electrolyte, were ubiquitious. Lots and lots of players use them. They were freely distributed. If a player said that he was using an electrolyte product, and you look one of our trainers in the eye and say, "Is that true," they'd say, "Yeah, sure, probably." So when you have that fact, when you have the fact that there is a common fingerprint that says "these are all coming from the same source," and you have it only happening in men's tennis, there's a logical conclusion that it's at least a chance that it was coming from the electrolyte supplement. I mean, it doesn't take a rocket scientist to get there.

Q. Then again, these fingerprints have reshown again this year. That presumably rules out the fact they were coming from ATP trainers, as WADA points out.

RICHARD YOUNG: And I agree with that. I mean, there still could be some supplement out there. Again, since you don't know the cause, you can't rule things out, since all the likely causes seem unlikely. But the facts are just very different today than they were then.

Q. I know you keep referring to low levels. But obviously the eight people that failed the tests didn't meet the standards. Are you still saying, in fact, that those eight were taking low levels or what precisely?

RICHARD YOUNG: Again, you don't know. When you look at somebody's urine after the fact, you never know what they took. If you find a relatively high level of nandrolone in somebody's urine, in the thousands, the odds of it being a contaminated supplement become very low. It could be nandrolone, it could be 19-norandrostenedione. It's possible that it's a contaminated supplement, but it's pretty unlikely. When you have the low levels, say under ten, in the case of men it would be between two nanograms per mill and somewhere up to ten, then it could be any one of three sources, and you just don't know.

Q. Are the ATP at all disappointed that there are currently eight players out there who perhaps should not be playing tennis at the moment, and have only been saved by what amounts to a legal nicety?

MARK YOUNG: I would say no. We followed the rules. We followed the processes. The processes were independent, conducted in accordance with the rules as WADA has confirmed in its report. And, again, the premise behind your question assumes cheating. We don't know that. And, in fact, again, when you look at the common source, which the scientific experts tell us, and the diverse range of players, that would logically indicate that this is more likely inadvertent and not intentional. So that's my answer.

RICHARD YOUNG: I think the right time to ask that question is if and when we figure out what the cause is. Once we figure out what the cause is, it may be a situation where you say, "Gee, that's really too bad. This is a situation where people should have been sanctioned." Or you say, "Gee, thank God they weren't sanctioned."

Q. Surely under strict liability, the whole basis of that argument is that it's irrelevant whether they were intending to or not. The fact is, they had nandrolone in their system, and therefore they were culpable.

RICHARD YOUNG: A little more complicated than that. Let me take you through it. Strict liability applies. Certainly I am a big supporter of the principle that you're responsible for what's in your system. But the World Anti-Doping Code, if the athlete can demonstrate no significant fault, then the penalties are reduced. If the athlete can demonstrate no fault, then there's no suspension. At the end of the day, when we understand what the cause of all this is, it may or may not be a no significant fault or a no-fault situation. The wrinkle is that that is normally the burden of the athlete, not the sports organization. And I agree with that entirely. Except we have this very strange situation where even with all its resources and the ability to interview players and know the identity of the people who were elevated and positive, the ATP hasn't been able to figure out what's caused this common pattern. So it's a little unfair to impose that on the players. It's the common pattern, common source, unique to men's tennis which causes this whole situation to be different than all the other nandrolone cases that I've ever seen. You know, if we just have a player show up tomorrow with a five or a six or a seven nandrolone reading, and without this common fingerprint, that's a routine case just like it would be in any other sport any other time.

Q. Could we just clarify, since the last figures that were released I think in March, if there have been any more elevated -- tests that showed elevated levels of nandrolone? Do we have sort of a tally? I guess this is really for Mark. A current tally of how many elevated -- how many people have shown elevated levels.

MARK YOUNG: Since the figures in March, there have been three more.

Q. Three more?

MARK YOUNG: Yes. By the way, these numbers that you have heard over the months are looking at all men's tennis events that we have looked at as part of our investigation.

Q. Taking in Grand Slams, as well?

MARK YOUNG: Yes. And Davis Cup.

Q. I know it's not the same case, but Guillermo Coria was saying during the last weeks that the ATP was not fair to him, especially caring with the Greg Rusedski case. I don't know if the ATP has something to say about this or can clarify the two cases.

MARK YOUNG: The case with Mr. Coria really was a completely different set of circumstances. He fell into the situation that Rich Young just described, a standard nandrolone case that did not have the analytical fingerprint. And most significantly, and thankfully for Mr. Coria, he was able to establish the source, which was a contaminated multi-vitamin. Under our rules at that time, that allowed him to prove what was known as "exceptional circumstances" and have his suspension reduced. There really is no commonality between the two cases other than that. He took the multi-vitamin that he obtained on his own. Again, as I said, fortunately he was able to test it and establish that that is, in fact, where the contamination came from. It was not provided to him by the ATP.

GREG SHARKO: Thanks, again, everyone.

End of FastScriptsâ?¦.

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