FasterSkier Explains: Rodchenkov Anti-Doping Act Passes Senate
A new anti-doping bill that criminalizes international doping conspiracies, while pointedly focusing on high-level organizers rather than on individual athletes, and that makes an expansive claim for U.S. jurisdiction over doping occurring at international competitions while excepting the most high-profile American professional sports leagues, is on the verge of becoming law. Here’s what you need to know:
What it is: “An act 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.”
What you can more casually call it in conversation: The “Rodchenkov Anti-Doping Act of 2019,” or even just the Rodchenkov Act.
What’s its current legislative status: Passed the House, passed the Senate without amendment, sent to the President for his signature. It will become law when or if he signs it.
What the bill does, summary form: Per the nonpartisan Congressional Research Service: “This bill makes it unlawful to knowingly influence (or attempt or conspire to influence) a major international sports competition by use of a prohibited substance or prohibited method. A violator is subject to criminal penalties – a fine, a prison term of up to 10 years, or both – and mandatory restitution. Additionally, property may be seized and forfeited to the U.S. government if it was used or intended to be used to commit an offense or traceable to the proceeds in connection with an offense.”
What the bill does, actual statutory language form: Here’s the heart of the new law:
Section 3(a) of the Act provides, “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.”
Section 3(b) provides for extraterritorial federal jurisdiction over an offense described in 3(a), i.e., it gives the U.S. Department of Justice legal authority to prosecute alleged criminal conduct that took place outside the physical borders of this country.
Extraterritorial jurisdiction of American criminal law is the exception rather than the rule. However, there are multiple areas where this exists, at least in theory, although in practice actions are relatively uncommon. As one overview of this issue states, “A surprising number of federal criminal statutes have extraterritorial application, but prosecutions have been relatively few. This may be because when extraterritorial criminal jurisdiction does exist, practical and legal complications, and sometimes diplomatic considerations, may counsel against its exercise.”
The rest of the Act provides some definitions. Major international sports competition means a competition featuring at least one American athlete, plus at least three other athletes from other countries, which is governed by the World Anti-Doping Agency Code (aka “WADA Code”), and where the competition organizer or sanctioning body receives sponsorship or financial support from an organization that does business in the U.S., or received money for the right to broadcast the competition in the U.S. (“Competition” is defined in this manner so as to provide jurisdiction under the capacious expanse of the Commerce Clause, in Article I of the U.S. Constitution.)
A scheme in commerce has a similarly broad definition, with the same aim of effecting Commerce Clause jurisdiction: “any scheme effectuated in whole or in part through the use in interstate or foreign commerce of any facility for transportation or communication.” Bottom line, if you send a text or email in support of your doping scheme (at a qualifying, multi-national competition subject to the WADA Code), the U.S. is going to have jurisdiction over you.
… if you’re “any person, other than an athlete,” that is. (Write your own John Kruk joke here.) If you’re an individual athlete who has allegedly doped, this Act, by its explicit terms – “other than an athlete” – does not apply to you. You obviously remain bound by the WADA Code, as well as by American state and federal law (if you’re an American athlete), but this Act does not apply to you. The title of Section 3 in the Act hints at its true target: “Major international doping fraud conspiracies.” Individual athletes are, well, not off the hook, but also not targeted by this Act.
Individual athletes are, however, eligible to receive restitution if they are defrauded as the result of someone else’s doping scheme. The Act amends 18 U.S.C. § 3663A, “mandatory restitution to victims of certain crimes,” to provide that someone who suffers financial damage as a result of someone else’s international doping fraud conspiracy is eligible to receive restitution. The Act itself provides for substantial fines for someone found guilty of violating it: $250,000 for individuals, $1,000,000 for associations or other groups. Jail time, of up to 10 years, may also be imposed.
Restitution provisions are well and good, but as any family law attorney who has ever tried to collect alimony from a former spouse can attest, you can’t get money if it’s not there. Another provision of the Act, regarding forfeiture, provides broad powers for criminal forfeiture to the U.S. Department of Justice, for property used, or intended to be used, to commit or facilitate an international doping conspiracy. At least in theory, the U.S. DOJ could prosecute the bad guys, seize their assets, and financially compensate the American athletes who were harmed. In theory.
What about whistleblowers: It has been widely reported, including in the New York Times, at Inside the Games, and in a Noah Hoffman op-ed (also this Noah Hoffman op-ed) that the Act “protects whistleblowers from retaliation.” This is true, but only sort of.
The bill’s drafters certainly intended to provide protection to whistleblowers (that is, people who expose alleged doping conspiracies). The original version of S. 259, when it was first read in the Senate, contained a number of findings, including that “whistleblowers … can play a critical role in exposing doping fraud conspiracies and other fraudulent acts in international sport.” The final finding stated, “These whistleblowers, including Dr. Grigory Rodchenkov and Yuliya and Vitaliy Stepanov, often expose major international doping fraud conspiracies at considerable personal risk. By criminalizing these conspiracies, such whistleblowers will be included under existing witness and informant protection laws.”
On the one hand, it is accurate to state that the drafters of the Act intended to provide some protection to whistleblowers, rather than not to provide such protection. That’s what the final sentence quoted above says. On the other hand, it is also accurate to conclude that the Act itself (that is, the statutory language actually enacted, which does not contain any findings) says nothing at all about whistleblowers, and that anyone coming forward to expose an alleged conspiracy will be protected, if at all, only under general criminal laws as they relate to whistleblowers.
This reporter has worked as a criminal defense attorney for most of the past seven years (and clerked for a criminal appellate court before that), and retains considerable professional skepticism about the munificence of the federal Department of Justice. In his professional opinion, anyone planning to blithely avail themselves of the assumed generosity of federal prosecutors should carefully consult with legal counsel first, and should not assume that they will be automatically protected from prosecution for their role in an alleged conspiracy in exchange for revealing its existence. In practice, prosecutors have almost unlimited discretion regarding who they wish to prosecute or not. And the general protections of “existing witness and informant protection laws,” in criminal law, are far, far less robust than the explicit protections of whistleblower protection doctrines in other settings, largely civil employment law.
Bottom line, if you have something incriminating to report, talk with a defense attorney first before you go anywhere near the feds. (But not this reporter; I’m a full-time stay-at-home parent these days, and am truly not soliciting business.)
So, about those individual athletes: Again, they are explicitly not targeted by the text of this Act, nor are they intended to be. The Act covers only conspiracies, not individuals.
So, about those individual athletes in major American team sports: Again, they are explicitly not targeted by the text of this Act, nor are they intended to be. The Act covers only major international competitions that are subject to the WADA Code; American college sports and the big four professional sports leagues (MLB, NFL, NBA, NHL) are not signatories to the WADA Code; therefore, this Act does not cover them.
As the New York Times succinctly put it, “Because drug policies are collectively bargained in the North American pro sports leagues, penalties for doping violations in those organizations are far less stringent than they are for international sports. Professional athletes in the North American leagues who fail doping tests are usually suspended for a portion of a season. International violations usually bring suspensions of at least two years.”
The exclusion of the most visible American professional sports leagues has raised some eyebrows. For that, and other reasons, let’s conclude with:
Who doesn’t like this Act (viz., everyone other than America):
The World Anti-Doping Agency:
WADA issued a strongly worded statement expressing its concern over the Act. Here’s some sample language:
“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 will have negative consequences as harmonization of the rules is at the very core of the global anti-doping system.
“WADA remains concerned that by unilaterally exerting U.S. criminal jurisdiction over all global doping activity, the Act will likely undermine clean sport by jeopardizing critical partnerships and cooperation between nations. Further, the Act could impede the capacity to benefit from whistleblowers by exposing them to possible prosecution and preventing ‘substantial assistance’ deals in line with the provisions of the Code.”
The Central European Anti-Doping Organization:
Sounded similar notes, in a statement largely copy and pasted from WADA. It ended with an original paragraph: “CEADO joins WADA and other stakeholders around the world in asking why this U.S. Act, which purports to protect athletes and claims jurisdiction overseas specifically excludes the main areas of professional and college leagues which are the show cases of sports in the U.S.?”
The former WADA president and IOC vice-president has expressed strong concerns about maintaining common international standards for testing and enforcement. “To try and destroy WADA does not provide any additional protections to American athletes,” Pound told British Columbia newspaper The Province earlier this year. “In fact, it increases the risk. If you don’t have a harmonized international approach to international doping, you’re going to have more and more doped athletes competing against America.” He claimed that the legislation is based on “intentionally inaccurate and misleading information” from American anti-doping officials.
Pound added, “It’s unfathomable why they would do that, unless it’s some kind of a takeover bid, an untimely takeover bid, to come and say, ‘Throw your money around, we’ve put in more than anyone else,’ which is of course not true. But that doesn’t seem to bother the executive branch of the U.S. government these days.”
One of the drafters of the WADA Code penned an op-ed entitled, “Flawed Rodchenkov Act risks a return to anti-doping chaos.” Its opening paragraph is, “Be careful what you wish for. Designed to protect clean sport, the Rodchenkov Anti-Doping Act will have the opposite effect.” It gets more caustic from there.
Haas expressed particular concern that the Act’s treatment of whistleblowers could expose them to criminal prosecution from non-WADA sources, while compromising WADA’s ability to provide them with immunity: “How could WADA carve out an agreement with this [hypothetical] whistleblower in exchange for her collaboration if there existed legislation that allowed for her criminal prosecution? The Rodchenkov Act and other similar laws would leave her exposed to criminal prosecution by various extra-territorial jurisdictions. There is no legal security for these whistleblowers in exchange for coming clean and providing valuable intelligence. The effect of the Rodchenkov Act will be to discourage people from coming forward with information.”
As a Russian presidential spokesman told an English-language Russian news agency earlier this week (headline: “Kremlin blasts US attempts to extend its jurisdiction to other countries”), “In the context of this document and in general we are extremely critical of any attempts by the United States to extend its jurisdiction to other countries. … This can cause nothing but concern. Such transborder practices do not suit us and we disagree with them.”
Who likes this Act (viz., Americans):
United States Anti-Doping Agency:
USADA CEO Travis Tygart issued a statement earlier this week. Tygart said, “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. … The Act establishes criminal penalties for systems that carry out doping-fraud schemes that rob athletes, citizens and businesses. It also protects whistleblowers from retaliation and provides restitution for athletes defrauded by conspiracies to dope. 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.”
USADA also made the following statement on Twitter on Tuesday: “Myth: The Rodchenkov Act doesn’t apply to athletes at all. Conspiracies to distribute & administer performance-enhancing drugs are already a felony under US conspiracy, narcotics & fraud laws, which carry stiff sentences. In that regard, RADA would have been completely redundant.”
This is quizzical, because the Rodchenkov Act, by its explicit terms (“other than an athlete”), literally does not apply to individual athletes at all. And the statement regarding a redundancy seems to admit that the Act does not in fact cover athletes, as they are already subject to the criminal laws described in the tweet’s second sentence.
Noah Hoffman and Jessie Diggins:
In an op-ed written in March of this year for the Minneapolis Star-Tribune, the two American Olympic skiers spoke to the importance of clean sport as a force for good. They wrote, in part, “The global anti-doping system, though well-intentioned, has failed to stem the tide of doping conspiracies that have undermined confidence in international sport. The current system does not have the power nor the independence to counter state-sponsored programs that corrupt the Games we hold so dear. The Rodchenkov Anti-Doping Act will bring the power of federal law enforcement to the fight for clean sport. The bill will criminalize international doping conspiracies, protect brave whistleblowers who expose malicious behavior, require information sharing between law enforcement and anti-doping authorities, and allow athletes like us to seek restitution when we are defrauded by cheaters.”
Hoffman also responded to Pound’s statements in the Province article with a letter of his own addressing some of Pound’s arguments. Hoffman writes, in part, “the article implies that the Rodchenkov Anti-Doping Act will undermine WADA and the global harmonization of anti-doping rules. This assertion disregards the fact that the bill uses the global WADA code to determine what is or is not doping fraud. The bill also mandates information sharing between law enforcement and the U.S. Anti-Doping Agency, the organization that works in partnership with WADA to enforce global anti-doping rules in America.” Hoffman also, accurately, states that the Act “covers both Americans and non-Americans who commit doping fraud at events that occur inside or outside of the United States” – but does not engage with the argument that it only covers events subject to the WADA Code, which rules out roughly 99% of professional sport in this country.
The Act’s namesake, through an attorney, told the New York Times that the law represented “the dawn of a new day. This will be an immediate worldwide deterrent.”
Gavin Kentch is a lifelong Alaskan. He skis with the Alaska Pacific University Masters team in Anchorage, plays with his two adorable daughters, and occasionally works as a solo attorney. He has a cat named Marit. He was probably on snow this year before you were.