By unanimous consent, the United States Senate passed H.R. 835, the “Rodchenkov Anti-Doping Act of 2019” on Monday, and cleared the way for it to be sent to U.S. President Donald Trump for signature.
It’s not a long statute, and it has clear purposes:
“To impose criminal sanctions on certain persons involved in international doping fraud conspiracies, to provide restitution for victims of such conspiracies, and to require sharing of information with the United States Anti-Doping Agency to assist its fight against doping, and for other purposes.”
Sounds good, right? But the bill’s passage drew a quick and huffy reply from the World Anti-Doping Agency:
“WADA supports Governments who use their legislative powers to protect athletes in the fight against doping in sport. However, while recognizing positive elements of this legislation, WADA and other stakeholders continue to believe that some very important elements of the Act will have unintended consequences and will disrupt the global legal anti-doping framework recognized to date by 190 nations, including the U.S., through the UNESCO International Convention Against Doping in Sport. …
“No nation has ever before asserted criminal jurisdiction over doping offences that occurred outside its national borders – and for good reason. It is likely to lead to overlapping laws in different jurisdictions that will compromise having a single set of anti-doping rules for all sports and all Anti-Doping Organizations under the World Anti-Doping Code (Code). …
“This Act may lead to other nations adopting similar legislation, thereby subjecting U.S. citizens and sport bodies to similar extraterritorial jurisdictions and criminal sanctions, many of which may be political in nature or imposed to discriminate against specific nationalities. This will be detrimental to anti-doping efforts everywhere, including in the U.S.”
In the meantime, Travis Tygart, head of the U.S. Anti-Doping Agency, was thrilled:
“The Act will provide the tools needed to protect clean athletes and hold accountable international doping conspiracies that defraud sport, sponsors and that harm athletes. …
“It is a monumental day in the fight for clean sport worldwide and we look forward to seeing the Act soon become law and help change the game for clean athletes for the good.”
So, what’s all the fuss about?
The bill, already referred to “RADA” – as if we needed another acronym in the Olympic world – includes this:
“SEC. 3. MAJOR INTERNATIONAL DOPING FRAUD CONSPIRACIES.
“(a) In General.—It shall be unlawful for any person, other than an athlete, to knowingly carry into effect, attempt to carry into effect, or conspire with any other person to carry into effect a scheme in commerce to influence by use of a prohibited substance or prohibited method any major international sports competition.
“(b) Extraterritorial Jurisdiction.—There is extraterritorial Federal jurisdiction over an offense under this section.”
Moreover, the applicability of this Act is exceptionally broad, including competitions of all kinds in which one or more American athletes compete and:
● “[T]he competition organizer or sanctioning body receives sponsorship or other financial support from an organization doing business in the United States” or
● “[T]he competition organizer or sanctioning body receives compensation for the right to broadcast the competition in the United States.”
That’s going to be almost any major event held anywhere in the world. If we count dual citizens, it’s even possible to imagine that this would apply to a program like the Asian Games, which has no U.S. participants, but which could be sponsored by U.S.-based companies like Coca-Cola through a subsidiary incorporated in another country, or simply televised in the U.S. for a rights fee of $1!
And the bill gives U.S. authorities including the Department of Justice and the Federal Bureau of Investigation – and others – permission to find and prosecute folks planning or aiding doping for up to 10 years after the date of the offense.
Interestingly, athletes are not to be punished under the Act; they are expected to be caught by the anti-doping organizations operating under the World Anti-Doping Code! The Act is aimed at the planners, aiders and abetters of doping.
The penalties are pretty severe, including, but not limited to:
“Whoever violates section 3 shall be sentenced to a term of imprisonment for not more than 10 years, fined $250,000 if the person is an individual or $1,000,000 if the defendant is other than an individual, or both.”
There is also forfeiture – to the U.S. – of any property used to commit the violation and any proceeds from it and required restitution.
The Act also places the U.S. Anti-Doping Agency literally in the center of potentially the most widespread anti-doping net in the world:
“[T]he Department of Justice, the Department of Homeland Security, and the Food and Drug Administration shall coordinate with USADA with regard to any investigation related to a potential violation of section 3 of this Act, to include sharing with USADA all information in the possession of the Department of Justice, the Department of Homeland Security, or the Food and Drug Administration which may be relevant to any such potential violation.”
Does this make Tygart, 49, the de facto worldwide head of anti-doping? He has earned a sterling reputation as a tireless anti-doping investigator, but how are his diplomatic skills?
The supreme irony in the “RANA” bill is that it is named for Dr. Grigory Rodchenkov, the former head of the Russian national anti-doping laboratory in Moscow, who directed much of the country’s state-sponsored doping program from 2011-15 and would be subject to prosecution under this statute.
Rodchenkov turned whistleblower in 2016 and left Russia for the U.S., where he lives today – out of sight – as part of the U.S. Witness Protection Program. He told the Financial Times in July, “Sport won’t be clean. Never.”
The logical follow-up to the passage of the Rodchenkov Act is that other countries will adopt similar statutes, allowing them to reach out and touch individuals for doping activities, potentially creating the mess that WADA is worried about.
Will that mean U.S. athletes will stop competing in those countries? Will China pass a similar bill, that might impact U.S. participation in the 2022 Olympic Winter Games in Beijing? Will foreign agents be allowed to carry on investigations in the U.S.? Will Tygart and USADA be asked to coordinate these conflicts, or does the U.S. Department of State get involved?
These are all questions for which there are no answers right now. But if the man who helmed the Russian doping scandal simply wanted sport to be cleaned up, he may have instead opened a new chapter in the continuing diplomatic conflict between East and West.
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