by Christine Abely
Matt Hart’s recent book, Win at All Costs: Inside Nike Running and its Culture of Deception, explores the story of Nike’s Oregon Project and the events ultimately leading to its shutdown. The training program for elite runners was headed by Alberto Salazar, who received a four-year ban from the U.S. Anti-Doping Agency (USADA) in October 2019 for administering an infusion in excess of the applicable limit; tampering and/or attempted tampering with the doping control process; and trafficking of testosterone through involvement in a testosterone testing program. Salazar’s appeal before the Court of Arbitration for Sport is currently scheduled for March 2021. Hart’s book describes how whistleblowers revealed a history of control over the program by Salazar that encouraged, enabled, and pressured athletes to take questionable and unproven treatments in attempting to improve their athletic performance. This post examines two pillars of compliance, culture, and recordkeeping. It also considers how the Oregon Project’s failure to incorporate these principles allowed questionable decision-making to become routine, leading to clearer violations of governing standards.
A robust culture of compliance is often cited as a key element in developing and maintaining a tone of rule-following within an organization, whether those rules are imposed by external actors or internal policy. As described in Hart’s book, the Oregon Project’s culture was notable for Salazar’s willingness to circumvent norms of the sport and restrictions imposed by the USADA and the International Association of Athletics Federations (IAAF) (now known as World Athletics). Of course, Salazar did not invent the practice of pursuing dubious or not-yet-prohibited treatments for better athletic performance, and the book describes the emergence of blood doping and more obviously prohibited performance-enhancing drugs throughout the second half of the 1900s and beyond. Salazar, however, engaged in behavior that violated current USADA standards and, as described by Hart, the common behaviors of other coaches and athletes.
Beyond the most prominent allegations of doping, the culture of the Oregon Project allowed Salazar to take other actions that, while less serious, were not in the best interests of the athletes. The book quotes the runner Kara Goucher, for example, who describes how Salazar created custom “orthotics” for her using jelly and duct tape, and covered her leg in dimethyl sulfoxide that caused a second-degree burn. Hart describes how Salazar acted as a “mad scientist” who engaged in “misguided and elaborate attempts to improve performance of his athletes.” Hart notes that “no one saw anything sinister” in these attempts. However, this same culture that discouraged dissent within the Oregon Project and positioned Salazar as the ultimate arbiter of athletic training, regardless of how misguided his scientific and medical theories were, resulted in a reluctance of those athletes he trained to question his methods. As such, Salazar had the authority and ability to make decisions with more serious consequences, like those leading to the USADA ban, without dissent from within the Oregon Project or from Nike itself. While some Oregon Project athletes did eventually become whistleblowers, the culture was such that they could not raise concerns about Salazar’s actions through internal channels and expect meaningful change.
The book relates that not only was the toxic culture of the Oregon Project defined by the actions of Salazar and the competitive nature of elite running itself, but was enabled and fueled by Nike’s own prevailing corporate culture. Hart describes the Nike culture as “insular and cultish,” and a place where “very few … seem to be affected by the steady drip of incendiary news about the company.” Nike has faced other controversies in recent years, including a gender discrimination lawsuit, which some employees have attributed to a harmful corporate culture.
Lack of Accurate Recordkeeping and Monitoring
Another element key to a successful compliance program is an effective system of recordkeeping, auditing, and monitoring. At times, a lack of clear and accurate recordkeeping served to obscure Salazar’s wrongdoing. For example, Oregon Project athletes were infused with unknown amounts of L-carnitine—unknown because the administering physician did not record the amounts used, despite the USADA’s warning that infusions or injections were only permitted if the volume of fluid administered intravenously did not exceed 50 mL per 6-hour period. This crucial information was not memorialized despite the obvious importance of recording the amount of fluid administered for purposes of compliance with the anti-doping rule. This recordkeeping failure possibly occurred for the very purpose of hiding violations of this rule, and at the very least failed to capture information that could have been used to protect the Oregon Project or the integrity of the sport.
Appropriate monitoring and oversight of the Oregon Project that might have detected problems earlier was also missing. This lack of oversight allowed Salazar to derail the career of Mary Cain, a former high school standout who joined the Oregon Project in 2013. In November 2019, she appeared in a New York Times video op-ed, describing how Salazar pressured her to lose an unhealthy amount of weight, which compromised both her well-being and her athletic performance.
Nike, as well as the Oregon Project itself, lacked a method to transparently and regularly monitor Salazar’s actions in order to uncover the alleged doping and other issues earlier. Nor did any external monitoring mechanism timely detect these behaviors. The USADA decision imposing a four-year ban on Salazar noted that the organization “was struck by the amount of care generally taken by [Salazar] to ensure that whatever technique or method or substance he was going to try was lawful under the World Anti-Doping Code.” Nevertheless, the organization noted that “his desire to provide the very best results and training for athletes under his care … clouded his judgment in some instances, when his usual focus on the rules appears to have lapsed.”
Whatever Salazar’s intentions were, a more structured, periodic monitoring mechanism, either internal or external, might have been able to identify and remedy serious issues sooner. For example, the U.S. Center for SafeSport requires covered organizations to implement policies intended to prevent abuse of any amateur athlete, as well as to monitor compliance with those policies. The NBA has enacted rules that allow it to audit a few randomly selected teams each year to confirm compliance with rules against tampering (that is, persuading a person employed by one team to join another one). The NBA rules also require certain records to be retained, in order to enable NBA investigations. Some type of enhanced monitoring mechanism, either at Nike or through an external organization, might have been useful to identify Salazar’s problematic behaviors earlier.
Win at All Costs illustrates the importance of a compliance framework in the context of elite athletic training institutions. The lessons of compliance are of key importance for the world of sports. At stake, as was the case for the Oregon Project, is not just the future of an athletic program, or the reputation of a corporate sponsor, but the health and safety of athletes.
 Faculty Fellow, New England Law | Boston.
 U.S. Anti-Doping Agency, AAA Panel Imposes 4-Year Sanctions on Alberto Salazar and Dr. Jeffrey Brown for Multiple Anti-Doping Rule Violations (Sept. 30, 2019), https://www.usada.org/sanction/aaa-panel-4-year-sanctions-alberto-salazar-jeffrey-brown/.
 Associated Press, Alberto Salazar’s appeal hearing in doping case postponed to March, ESPN.com (Nov. 5, 2020), https://www.espn.com/olympics/story/_/id/30261037/alberto-salazar-appeal-hearing-doping-case-postponed-march.
 Tammy Whitehouse, Inside the struggle to define, measure, and manage corporate culture, 13 Compliance Week No. 151 (Aug. 2016); see also Sarah Clayton, 6 Signs Your Corporate Culture is a Liability, Harvard Business Review (Dec. 5, 2019), https://hbr.org/2019/12/6-signs-your-corporate-culture-is-a-liability.
 Matt Hart, Win at All Costs, Dey Street Books (2020), at 144.
 Id. at 40.
 Alexia Fernández Campbell, Why the gender discrimination lawsuit against Nike is so significant, Vox.com (Aug. 15, 2018), https://www.vox.com/2018/8/15/17683484/nike-women-gender-pay-discrimination-lawsuit.
 Hart, supra note 5, at 275.
 Mary Cain, I was the Fastest Girl in America, Until I Joined Nike, The New York Times (Nov. 7, 2019), https://www.nytimes.com/2019/11/07/opinion/nike-running-mary-cain.html.
 USADA v. Salazar, AAA Case No. 01-17-0004-0880 (Sept. 2019), https://www.usada.org/wp-content/uploads/Salazar-AAA-Decision.pdf, at 133.
 U.S. Center for SafeSport, Minor Athlete Abuse Prevention Policies (Jan. 23, 2019), https://uscenterforsafesport.org/wp-content/uploads/2019/07/Minor-Athlete-Abuse-Prevention-Policies.pdf, at 3.
 Michael McCann, Breaking Down the New NBA Tampering and Compliance Rules, Sports Illustrated (Sept. 23, 2019), https://www.si.com/nba/2019/09/23/adam-silver-nba-tampering-compliance-salary-cap-stricter-rules.