By Professor Robert J. Romano, JD, LLM, St. John’s University
In November 2020, the United States Congress passed the Rodchenkov Anti-Doping Act of 2019 (Rodchenkov Act). Although the Act does not target athletes who engage in doping activities directly, it does criminalize doping conspiracies that knowingly influence (or attempt or conspire to influence) major international sports competition “through the use of a prohibited substance or prohibited method.”[1] Anyone who violates this new law is subject to criminal penalties that include a fine up to $1 million dollars, mandatory restitution, and a possible prison term of up to 10 years. In addition, any and all property used or intended to be used in violation of the law could be subject to seizer and forfeiture to the U.S. government.[2] What is both noteworthy and controversial about the Rodchenkov Act is that it marks the first time a country has attempted to assert criminal jurisdiction over doping offences occurring outside its own borders, while at the same time, overlooking doping offences that occur within its own borders.
Although this new law has been applauded by U.S. anti-doping officials, the World Anti-Doping Agency (WADA), the international organization charged with establishing and enforcing doping rules and regulations for international sporting competitions, is not pleased. WADA views the Rodchenkov Act as overreaching since it provides the United States with police power to pursue and prosecute ‘bad actors’ involved in doping outside of its own jurisdiction. The law, in effect, gives the U.S. the ability to investigate and punish anyone involved in doping conspiracies anywhere in the world, creating legal issues that concern WADA and other international sport governing bodies. According to WADA, more than half of the 38 members of the organization’s foundation board have reservations with the extraterritoriality aspect of the Rodchenkov Act, stating that “The area which is troublesome is the suggestion that American jurisdiction would go beyond the United States and might create liability in other parts of the world.”[3] In addition, WADA is concerned that the extraterritorial aspect of the Act will unintentionally undermine the fight against doping in sport worldwide, while also disrupting the global legal anti-doping framework recognized by 190 nations, including the U.S., through the UNESCO International Convention Against Doping in Sport. Per James Fitzgerald, a spokesperson for WADA, “In particular, it [the Act] may lead to overlapping laws in different jurisdictions that will compromise having a single set of rules for all athletes around the world. This harmonization of rules is at the very core of the global anti-doping program.”[4]
What makes the Rodchenkov Act even more controversial is that both professional and amateur athletes in the United States are exempt from the law. Yes, a law passed by the U. S. Congress, enacted to combat illegal doping activities involving sport, even though it has global jurisdiction, does not include any athlete who participates in the major U.S. sport properties: NFL, NBA, MLB, NHL or NCAA.
As per WADA President Witold Bańka, “We join other stakeholders around the globe in asking why this U.S. legislation, which purports to protect athletes and claims jurisdiction overseas, specifically 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. 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?”[5]
The answer to President Bańka’s questions is twofold. First, the major U.S. professional sports leagues, together with NCAA, were removed from the final version of the Act because none of these sports properties adhere to or observe the World Anti-Doping Code. Each of the major sports properties in the U.S. utilize a Collective Bargaining Agreement system in which players’ unions, on behalf of the players, negotiate the terms of the anti-doping policies with the various sports leagues. Because of this collectively bargained system, adopting any part of the WADA Code would allow the leagues to have unilateral power over testing and enforcement, in violation of the collective bargaining process. With regards to the NCAA, it has established its own testing rules and regulations concerning college athletes. The NCAA’s drug-testing program, although unilaterally implemented, was created as a deterrent to student-athletes from using performance-enhancing drugs, and impacts the eligibility of student-athletes who use or attempt to use banned substances.
Second, per the United States Anti-Doping Agency (USADA), there was no need to include U.S. professional and college sports in the Rodchenkov legislation because there are already existing U.S. laws in place to prosecute and punish athletes for orchestrating or engaging in doping conspiracies. According to USADA, “Any conspiracy to distribute and administer performance-enhancing drugs is already a felony under U.S. conspiracy, narcotics, and fraud laws, which carry stiff sentences.”[6] In addition, USADA points out that WADA rules and regulations already apply in the U.S. when international sporting events such as the Olympic Games and World Baseball Classic, are held on American soil.
But the U.S. may have overstepped since the Rodchenkov Act may lead to other countries adopting similar legislation. This will then subject U.S. athletes and sport governing bodies to similar extraterritorial jurisdictions and criminal sanctions, which could be political in nature or imposed to discriminate against specific nationalities. This will be detrimental not only to the U.S.’s efforts, but to anti-doping efforts globally.
[1] Rodchenkov Anti-doping Act of 2019.
[2] Id.
[3] https://www.washingtonpost.com/sports/2019/11/16/anti-doping-legislation-further-exposes-tensions-between-usada-world/
[4] https://www.wada-ama.org/en/media/news/2020-11/wada-statement-on-us-senates-passing-of-the-rodchenkov-anti-doping-act
[5] https://www.wada-ama.org/en/media/news/2020-11/wada-statement-on-us-senates-passing-of-the-rodchenkov-anti-doping-act
[6] https://www.espn.com/olympics/story/_/id/30340685/ioc-wada-question-why-us-sport-exempt-rodchenkov-act
