United States Senate passes Anti-Doping Legislation

On 16 November 2020, the United States Senate passed legislation that would allow the prosecution in the US of doping offences at international sporting events in which American athletes, sponsors, or broadcasters participate. Those found guilty can be fined up to $1 million or up to 10 years in prison. Significantly, this is the first time that a country has asserted criminal jurisdiction over doping offences that have occurred outside its own national borders.

Background

The fight against doping in sport remains a paramount concern, in particular for sporting federations in charge of organising events and ensuring clean competitions for participating athletes. The World Anti-Doping Agency (WADA) is the international organisation mandated to promote, coordinate, and monitor this effort to combat doping. WADA delegates its work to regional and national anti-doping organisations, which conduct anti-doping education, testing, and also first instance disciplinary hearings on its behalf.

In particular, WADA has established the World Anti-Doping Code, a single set of rules for all athletes, all sporting personnel, all sports, and all anti-doping organisations that have adopted it. Indeed, the vast majority of sporting bodies, federations, and anti-doping organisations have implemented the World Anti-Doping Code into their rules. Importantly, the World Anti-Doping Code mandates that the Court of Arbitration for Sport has the ultimate say in adjudicating doping-related cases.

WADA and the World Anti-Doping Code have greatly assisted in creating a level playing field across sports in the world, applying uniform standards for prohibited substances, testing procedures, laboratories, and dispute resolution.

America First?

The United States also has a national anti-doping organisation, USADA, under WADA’s umbrella. However, whereas the WADA Code has been implemented by most sport organisations, leagues, and federations around the world, the overwhelming majority of American professional sport leagues (NFL, MLB, NHL, NBA) and the National Collegiate Athletic Association (NCAA) are not signatories to the WADA Code and are often criticised for having less-effective anti-doping programs.

The United States Senate has now passed the Rodchenkov Anti-Doping Act. The Act is set to allow US prosecutors to seek criminal charges for doping offences at events anywhere in the world involving American athletes, sponsors, or broadcasters. The legislation is named after the former head of the Russian anti-doping agency’s Moscow laboratory that was at the centre of state-sponsored doping during the 2014 Sochi Winter Olympics.

Significantly, this is the first time that a country has asserted criminal jurisdiction over doping offences that have occurred outside its own national borders. The new law specifically targets athlete support personnel, such as coaches, managers, agents, as well as sports body officials and even government officials. However, these persons (as well as athletes) are already subject to the World Anti-Doping Code’s obligations and possible sanctions.

Reactions and Possible Consequences

There have been strong reactions against the Rodchenkov Act, in particular from WADA. It has highlighted that the legislation leads to overlapping laws in multiple jurisdictions compromising the harmonised rules and uniform application of doping sanctions that has previously been established under the World-Anti Doping Code.

Additionally, the new legislation may impede on the capacity of anti-doping organisations to rely on whistleblowers. Under the World Anti-Doping Code, whistleblowers can benefit from significantly reduced sanctions by providing substantial assistance in anti-doping investigations. Exposing such individuals to multiple jurisdictions, or having whistleblowers provide information to American authorities only, would compromise the ability of anti-doping organisations under WADA’s umbrella to conduct investigations.

Moreover, the United States enacting legislation having such enormous extra-territorial effects across the world, and possible misapplication for purposes other than anti-doping could lead to discrimination against athletes of particular backgrounds or nationalities. It is likely that other countries will retaliate, either by enacting similar legislation or taking measures should their citizens be targeted.

Lastly, the Rodchenkov Act appears to favour American domestic sports, as it excludes the hugely popular and influential professional and college leagues. Nearly half a million athletes compete in U.S. college sports, and thousands more in the professional leagues. These leagues were originally included in the Act but were subsequently removed without explanation. As WADA has noted, “why are those who surround the athletes in these associations and leagues now exempt from the scope of this legislation? If it is not good enough for American sports, why is it being imposed on the rest of the world?”