Doping’s Latest Threat: Unilateralism (guest post by Alec Hurley)

I’m excited to revive the blog with this guest contribution from Alec S. Hurley, a doctoral candidate in Physical Culture and Sports Studies at the University of Texas.

Lost amidst the ongoing chaos of a turbulent and exhausting election in the United States was a rare display of senate bipartisanship. In the early afternoon of November 17, 2020 senators unanimously passed The Rodchenkov Anti-Doping Act. The bill, named for Grigory Rodchenkov, who helped expose systematic state-sponsored doping practices in Russia, would make it “unlawful to knowingly influence a major international sport competition by use of a prohibited substance or method.” Less than two months after being officially signed into law, news of a decades long, Russian backed, doping coverup in international biathlon was revealed by the New York Times. The passage of this bill, in what will hopefully be an Olympic year, creates a series of interesting problems for a new presidential administration in the United States. The Biden/Harris agenda, focused on resuming global cooperation, could be complicated by legislation like the Rodchenkov Act, which doubles-down the ‘American First’ policies of the previous administration.

Origins:

The new law was born nearly three years ago, at a meeting of the U.S. Helsinki Commission, where lawmakers consider a broad range of US-European issues. Early drafts of the bill worked through the U.S. House of Representatives in late October of 2019 before facing minimal opposition en route to unanimous passage through the U.S. Senate in mid-November 2020.

Among the reasons for the bill’s origins was a long-simmering dispute between the Trump administration and the World Anti-Doping Agency over funding and perceived influence. A transactional approach to international relations was a defining trait of the Trump administration and the US/WADA relationship was no different. As of 2019, the United States contributed $2.7 million to WADA. Additionally, because the IOC matches each government’s contribution, the total size of the US-generated funds sat at roughly $5.5 million, which accounted for roughly 7% of the organization’s overall budget. The general concern for the United States government was that their investment was not being met with the rigor they believed was necessary. Officials from the US Office of National Drug Control Policy often cited the need for fairness and a level playing field for American athletes in international competition. Perceptions of unfairness in the United States escalated rapidly between the 2016 and delayed 2020 Olympiads following the reinstatement of Russia’s anti-doping agency and athletics federations in 2018. With an Olympic host site on the horizon, the United States believes that it is owed the right to take the lead on such matters.

What can the law do?

The law, as passed, “would allow the United States to prosecute conspirators involved in tainting competitions that involve American athletes. It calls for fines of up to $1 million and prison sentences of up to 10 years.” Such action, while an extraordinary step, is not without precedent. Prior pursuits have attempted to pursue corrupt soccer officials in international matches through the U.S. courts. Although, perhaps the closest legislative relative to the new Rodchenkov Law are those which govern American global financial interests such as the Bank and Wire Fraud Act and the RICO Act. The expanse of the law is what truly sets it apart. The phrasing meant to target offenders in competitions which “involves American athletes” covers a broad swath of circumstances. Included under the umbrella of events are those which are covered by the WADA code, feature at least one American athlete, are broadcast in the United States, or include a sponsor that does business in the United States. This covers effectively every major, non-regional international competition. The wide net cast signals that this is as much about US corporate interests and international posturing as it is about the necessity of clean sport.

A further aspect of the law is that it does not target violating athletes specifically. In fact, the law includes provisions for those athletes to come forward as whistleblowers. This has been arguably the most lauded aspect of the legislation. Yet, still it is not without backlash as spokespeople for WADA have warned that the law would, in fact, impede the impact of whistleblowers by subjecting them to multiple and often overlapping laws in different jurisdictions. Such an outcome could potentially upset the delicate harmony of rules at the core of the global anti-doping movement.

International concerns

International reaction to the bill’s passage has ranged from skeptical to outright opposed. The concerns are directed at the potential scope of the legislation. WADA officials are worried that the bill would allow the potential for a singular nation to interfere or overlap in global jurisdictions beyond the enforcement of its borders. Joining WADA in concerns of the United States’ venture into extra-territoriality are the Council of Europe and the International Olympic Committee. That is not to say that there are not areas of general support between the two sides. WADA, in a report issued after the then-bill passed the Senate, stated that it “supports Governments using their legislative powers to protect clean athletes in the fight against doping and the Rodchenkov Act is no exception.” Of the various aspects of the law, WADA encouraged the increase in information sharing between US law enforcement and the US Anti-Doping agency as well as the general protections for whistleblowers, but the apprehension on the lack of domestic enforcement continued to prove worrisome.

Simultaneous overreach of the US government coupled with the lack of attention dedicated to domestic sport in the law received renewed attention when early drafts of the legislation became known. In those early stages, it was revealed that domestic professional leagues and college sport had been included, only to be revoked in the final version, which ultimately became law. Increasing the disbelief among WADA officials was that those domestic bodies within the United States already do not adhere to the World Anti-Doping Code. To therefore attempt to issue a unilateral proclamation when one’s own house has yet to adhere to the international standing was beyond the pale for many in the international oversight committee. For the United States’ part, officials have stated that professional and college sport in the US can be subject to existing laws, so their inclusion into the Rodchenkov law would have been redundant. That claim has meet with a frosty reception across the globe.

The utmost fear stemming from this international/domestic split is the worry that U.S. jurisdiction will extend beyond its borders while allowing US athletes a free-pass. The IOC weighed in on that sentiment following the then-bill’s passage through the Senate, arguing that it had the potential to place all athletes under US criminal jurisdiction. WADA’s worries only doubled down on the IOC’s concerns arguing that the passage of the law could result in a continuation of escalating tit-for-tat measures that would ultimately undermine the global anti-doping efforts.

Why we should be concerned in a delayed Olympic Year

Though the bill is now a law, its future is somewhat uncertain. The administration which crafted the legislation is now out of power. Yet despite the inclination of the new administration towards a return to normalcy and cooperation in the international realm, the actions of their predecessor are not so easily undone. Therefore, it is appropriate to ask what the Rodchenkov Law’s future will look like under a Biden administration. While far from the most pressing measure faced by the new administration, the world is in the midst of an Olympic year where the law could have its most public impact. Repealing the law, an approach favored by many on the left in the US aimed at undoing most of former president Donald Trump’s agenda, would be a difficult approach. Support for the bill was high through its passage through the legislative chambers of the government and was praised routinely from both sides of the aisle. That kind of widespread bipartisan support makes a simple repeal unlikely. This author believes the most likely course of action for the incoming Biden administration will be to allow the law to exist, but to declaw it through reinvigorated international cooperation. As such, the eagerly-awaited Tokyo Olympics will not only display the tremendous stamina and mental strength of the athletes but the durability and collaboration of the international bodies governing the affair. Considering the recent exposé on Russian funded doping and corruption within winter sport governance, it perhaps more realistic to wait until the 2022 Beijing Winter Games to see what teeth – if any – the Rodchenkov Act possesses.

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