H.R. 835: Rodchenkov Anti-Doping Act of 2019

Photo: Dr. Grigory Rodchenkov in
“Icarus”/Indiewire.com

Six years post the Russia and Sochi Olympics doping scandal, the dust seems to be settling and the aftermath is beginning to unfold. Following the scandal, the three whistle-blowers, former Russia track star Yuliya Stepanova, her husband Vitaliy Stepanov and Dr. Grigory Rodchenkov, fearing for their lives fled Russia and are safely in the United States living somewhat quiet lives. Then The World Anti-Doping Agency (WADA) delivered Russia a lengthy ban, which precludes Russia from participating under its flag in the 2020 Tokyo Olympics, 2022 Beijing Olympics and the 2022 Qatar World Cup.

There was an outcry after the egregiously light punishment by the likes of Victoria Aggar, a former British Paralympian who served on WADA’s Athlete Committee who then resigned following the delivery of the four-year ban because he believed the ability to compete under a neutral flag despite the ban made “a mockery of the system and was embarrassing to WADA” and further condemned the decision as “spineless and appalling.” Following the scandal, the United States Congress began considering unique legislation regarding doping. It seems the United States Congress may be willing to take doping scandal punishments further than WADA. As if having hindsight bias regarding the light punishment, and fueled by repugnance toward Russia’s state wide corruption, on January 29, 2019 Representative Sheila Jackson Lee, along with Senators Sheldon Whitehouse (D-RI) and Roger Wicker (R-MS) and Michael Burgess (TX-26) introduced the bi-partisan Rodchenkov Anti-Doping Act of 2019 (“Act”). In her press statement, Congresswoman Sheila Jackson Lee stated,

“If enacted into law, the Rodchenkov Anti-Doping Act will: establish criminal penalties for participating in a scheme in commerce to influence a major international sport competition through prohibited substances or methods; provide restitution to victims of such conspiracies; protect whistleblowers from retaliation; and establish coordination and sharing of information with the United States Anti-Doping Agency.”

If passed, the legislation would give extraterritorial jurisdiction to prosecute persons involved in major international doping conspiracies. The United States has enacted similar legislation, such as those used to prosecute FIFA executives in their soccer scandal, which include extraterritorial jurisdiction language. The Rodchenkov Act provides that whoever violates the Act may be sentenced up to 10 years in prison and fined up to $250,000 if the defendant is an individual or up to $1,000,000 if the defendant is not a natural person. In addition, if the defendant used any property, whether real, personal, tangible or intangible, to commit or facilitate the fraud, the property may be seized or criminally forfeited to the United States.

However, there are limitations to this broad reach. The Act would exclude from prosecution any athlete involved in the conspiracy. The desire is to induce athletes to speak up against doping conspiracies without fear of criminal prosecution. Another “limitation” is in the definition of “Major International Sport Competition”. The Act would apply to competitions only in which one or more United States athletes and three or more athletes from other countries participate, the competition is governed by anti-doping rules and principles of the Code (meaning WADA code) and in which the competition organizer or sanctioning body receives sponsorship or other financial support from an organization doing business in the United States; or the competition organizer or sanctioning body receives compensation for the right to broadcast the competition in the United States. The Act does not say how much money is considered financial support, therefore, even a little bit of money from American sponsors of any kind will give the U.S. jurisdiction to prosecute.

But what does WADA think about this prospective legislation? They have their reservations. WADA supports what the bill is trying to accomplish – protecting clean athletes, reducing doping scandals such as the Sochi scandal, and increasing the flow of information. However, WADA dislikes the fact that the Act criminalizes doping conspiracies. WADA sent a letter to the U.S Senators, prior to their hearing on the Act, claiming the bill could “have the unintended consequences of shattering the anti-doping system”. The letter further states provisions of the Act may hinder the World Anti-Doping System and produce a system with no predictability. WADA is also concerned that other nations will follow suit and create confusion regarding jurisdiction on the same set of facts. This will then “weaken the system, and compromise the quest for clean sport.” WADA went as far as to put $250,000 in its budget to lobby against the bill. The irony is that the U.S. provides $2,500,000 to the WADA budget, therefore, WADA may be using American money to lobby against the bill.

A ban, which truly is not a ban, certainly hurts the reputation of WADA and its decision-making in regard to punishment. But is the proposed bill an overstep by Congress and will it actually muddy the WADA system in place? If passed by congress, only time will tell. However, it definitely shows the concern that the U.S. Congress has about doping and its commitment to keep sports clean.

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