As I have previously discussed on this blog, corruption is sports is a serious and systemic issue. I recommended that the World Anti-Doping Agency (WADA) ban Russia from the 2020 Tokyo Olympics, and WADA did indeed decide to ban Russia from global sports for four years in the aftermath of Russia’s years-long state-sponsored doping program. The 2020 Olympics was postponed due to the coronavirus, and other major sports events will not be taking place for the foreseeable future, but once it is safe to hold these events again—indeed, before then—the work to combat corruption in sports must continue. Russia appealed WADA’s decision, and thus far the ban is the only consequence facing Russia and the state officials who engineered the doping program. It is unclear whether the ban will be enough for Russia to learn its lesson, or enough to deter other countries from trying to get away with similar ploys.
Fortunately, the United States has the opportunity to become a leader in fighting this kind of corruption in sports. Last fall, the U.S. House of Representatives passed the Rodchenkov Anti-Doping Act of 2019, named for Dr. Grigory Rodchenkov, the whistleblower who revealed the Russian state-sponsored doping scheme and who has been the target of Russian retaliation ever since. This bill would make it a crime 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” in which U.S. athletes compete; the bill also permits U.S. citizens to pursue monetary compensation for deceptive competition and provides protections for whistleblowers. The bill, now pending in the U.S. Senate, has received bipartisan support, as well as the endorsement of the U.S. Anti-Doping Agency.
WADA, on the other hand, has raised concerns about the bill, especially the proposed law’s allegedly impermissible extraterritorial reach. This objection is unpersuasive, for several reasons:
- First, the Rodchenkov Act is not the first U.S. law to have an extraterritorial reach. Examples of other such laws include the Foreign Corrupt Practiced Act (FCPA), the Travel Act, the Bank and Wire Fraud Act, and the Racketeer Influenced and Corrupt Organization (RICO) Act. These laws ensure that U.S. prosecutors can prosecute crimes—including corruption-related crimes—that substantially affect U.S. interests, even if the relevant conduct takes place abroad. Without such broad jurisdiction, it would be too easy to avoid prosecution for conduct that harms U.S. citizens. As Dr. Rodchenkov’s attorney put it, “As long as U.S. athletes or U.S. sponsors can be defrauded, DOJ needs the tools to be able to bring the fraudsters to justice. I think if that part of the bill were removed, it would be a completely toothless venture.”
- Second, the Act’s jurisdiction is not impermissibly extraterritorial, due to the definition of “major international sports competition.” Under the Act as drafted, U.S. authorities would only be able prosecute a conspiracy to carry out a doping scheme related to an international sports competition where (1) U.S. athletes are competing, and (2) the competition’s organizer either (a) receives sponsorship or financial support from a U.S. entity or (b) receives compensation for the right to broadcast the event in the United States. This ensures that the jurisdiction is cabined to competitions that affect U.S. athletes and the interests of the United States.
- Third, while WADA has voiced concerns about “overlapping laws in different jurisdictions,” and has emphasized the importance of “having a single set of rules for all athletes, all sports and all anti-doping organizations that are subject to the World Anti-Doping Code,” in fact, as the U.S. Anti-Doping Agency has pointed out, the Rodchenkov Act is consistent with WADA’s anti-doping regulations. The law would not alter the substantive rules, but would give U.S. prosecutors the authority to prosecute conspiracies to violate those rules. (WADA also claims that the Act would “impede the capacity to use whistleblowers by exposing them to multiple jurisdictions and preventing ‘substantial assistance’ deals,” but WADA does not explain this criticism any further.)
- Fourth, WADA asserts that passage of the Rodchenkov Act would encourage other jurisdictions to enact and misuse extraterritorial laws for improper purposes, such as discrimination against athletes of certain nationalities, and might also provoke retaliation by other countries. But this argument is largely speculative—WADA cites no examples or evidence to support these claims—and in any case the argument proves too much: It’s always the case that legal actions against misconduct by other countries’ governments or nationals could provoke retaliation, but that’s not a good reason to abstain from criminalization and prosecution of serious misconduct by foreigners that adversely affects U.S. national interests.
The Rodchenkov Act is a necessary step to continue fighting corruption in sports. WADA’s objections, and those of other critics, are unconvincing. The U.S. Senate should pass the Act as soon as possible, so as to ensure that U.S. prosecutors and federal agencies have the tools to address doping conspiracies and keep international sports competitions clean.
Thanks for a really interesting post Masha. I certainly buy your argument that the Rodchenkov Act will be useful in the fight against doping in sports. If anything, I wonder if it represents too cabined a response to the problem. In particular, it seems like this will miss corruption in sports that don’t attract a significant American audience. Would you advocate the passage of similar laws on a country-by-country basis to try to mitigate this problem or do you think there are global responses that might be more effective?
Thanks for your comment, Maura! I think in the absence of more stringency from WADA, country-by-country laws could be a smart call. More countries stepping up could perhaps turn this into a more global response.
Hi Masha. Thank you very much for this very interesting post. I think that, if this bill is approved, it will be the first statute or one of the first statutes that criminalizes the use of performance-enhancement drugs in sports. As far as I know, around the world doping is usually sanctioned only in the restrict area of the “sports justice” through suspensions or bans. Include the problem in the jurisdiction of the common criminal justice may be useful to deter it. WADA’s arguments against the bill, especially against its extraterritorial reach, seem to derive, at least in part, from the loss of exclusivity in handling the issue.