Outside Counsel

Marion Jones' decision to sue Victor Conte for defamation is a strategy born of two important legal concepts: collateral estoppel and chutzpah. The law makes agnostics of us all, so I'm prepared to look at the case as a neutral: there has been no adjudication on the question of whether she was using performance enhancing drugs, she has denied it, and all we have seen are bits of proof to the contrary. To be sure, that proof is pretty damning, consisting as it does of admissions against penal interest by both the former Tower of Power bass player and her ex-husband, but I can see a jury believing that both Conte and C. J. Hunter, her ex-husband, had reasons to lie about her drug use. Jones has got to fight this on multiple fronts, and that's difficult to do, but the stakes are pretty high. The United States Anti-Doping Agency is investigating her, and so is the IOC. Presumably USA Track and Field is, too. Frankly, I'd say that the odds of her competing internationally ever again are pretty long, but where she makes her money is on endorsements, probably mostly from Nike. I didn't see any pictures of her in Niketown yesterday, and Phil Knight has got to be thinking about how to back out of writing her any more checks. It'd be interesting to see what the contract looks like. It's got to have some provision giving Nike an out if she is barred from competition for doping, but that might not be enough. I don't know if a verdict in her favor in the defamation action would be res judicata or would collaterally estop the Court of Arbitration for Sport, but for sure it could make a breach of contract action an interesting adventure. At a minimum it could make the question of her use of performance enhancing drugs a jury issue, and if she already had a verdict in her favor, Nike might be inclined to come to the table. Actually, just the fact of the defamation action might be enough of a wild card to incline Nike to come to the table, but if they do, they'd better bring their lunch: Jones is getting some high-powered legal advice, and those lawyers are going to want to be paid.