American Anti-Doping Act: Overshooting the mark?!

by Michiel van Dijk

Recently, the United States signed the Rodchenkov Anti-Doping Act into law. The Act – named after Grigory Rodchenkov, the Russian whistle-blower and former director of the national Russian anti-doping laboratory – is unusual in that it provides for the imposing of significant prison sentences and high fines on ‘participants in doping fraud conspiracies’ at sports events ‘where the US is present’. The United States considers the Rodchenkov Act a major and huge step forward in the fight against doping. At the same time the Act is a source of constant quarrelling and tension between the United States and the World Anti-Doping Agency (WADA).

Is the Rodchenkov Act really a step forward in the fight against doping? Will this Act help improve the global approach to doping? And what are the implications for Dutch athletes, not only in the Netherlands but also in the US?

Grigory Rodchenkov
As the former director of the national Russian anti-doping laboratory Grigory Rodchenkov was involved in the secret Russian doping programme. He engineered the disappearance of 1,417 positive doping samples. Moreover, he developed a doping cocktail made up of three banned substances mixed into a liqueur, intended for athletes who would be representing Russia at the 2014 Olympic Winter Games in Sochi. ⁱ

In 2016 Rodchenkov defected to the United States, and told his story to the New York Times ⁱⁱ. This started a chain reaction. Most of Rodchenkov’s accusations were confirmed by the independent reports of Richard McLaren who was commissioned by WADA to investigate the claims ⁱⁱⁱ. McLaren’s investigation eventually resulted in Russia being barred from the 2016 Summer Olympics in Rio de Janeiro and the 2018 Winter Olympics in PyeongChang.

Today Rodchenkov, who used to be a fairly good distance runner, in part thanks to doping (anabolic steroids), is in a witness protection programme in the United States. The award-winning Netflix documentary 'Icarus' ^iv chronicles his disclosures.

Rodchenkov Act
The Rodchenkov Act, in summary, imposes criminal sanctions on organised and large-scale doping use at major international sport competitions and tournaments. The Act explicitly does not target individual doping use but the systems organising doping use. Examples are the structural and organised doping use in the past by racing cyclist Lance Armstrong, the Russian doping programme referred to earlier, Spanish ‘doping doctor’ Fuentes and Operation Aderlass (an Austrian/German doping network).  

The Rodchenkov Act is wielded as soon as one or more American athletes and three or more international athletes are involved, the WADA Code applies and there are ties with the United States, for instance because of commercial contacts or if rights have been sold to that country. Events outside the United States are targeted as well, as are individuals (not Americans) who do not comply with anti-doping rules. Anyone in the world who is involved in organizing a doping system or is part of such system is liable to sanctions under the Rodchenkov Act (including athletes who fit the definition).

The American criminal court metes out the punishment. Sanctions are significant: fines can run up to USD 1 million, and imprisonment up to 10 years.

Response United States
In the United States the Rodchenkov Act received wide acclaim. On 4 December President Trump signed the Act into law. The United States have an atypical doping structure. USADA, the American national anti-doping organisation and the counterpart of the Dutch Anti-Doping Authority, is responsible for the anti-doping programme in the US. The majority of American professional sports associations (like MLB, NFL, NHL, NBA) are not regulated by the World Anti-Doping Code and fall outside the reach of USADA. Those associations have their own anti-doping programme, which reportedly is considerably less successful. Although the intention was to have the Rodchenkov Act extend to these professional associations, they were exempt, as were the collegiate leagues.

Still, USADA is convinced that the Rodchenkov Act will be a further instrument, nationally as well as internationally, to deal with (inter)national doping conspiracies. 

Outside the United States
Other countries were not as positive about the Rodchenkov Act. First, there is not a single country in the world that has ever criminalized doping offences outside the national borders. WADA, the IOC and numerous anti-doping organisations have expressed concerns that the territorial jurisdiction will precisely undermine the global fight against doping. The Rodchenkov Act will create a hotchpotch of laws and regulations, which will make it difficult to apply just one set of anti-doping rules, the WADA Code.

Another effect of the Rodchenkov Act could be that other countries will follow suit and adopt similar legislation, for instance for political reasons. A hotchpotch of rules and regulations will sprout up, while the current system is straightforward: the WADA Code applies globally to any athlete, professional of amateur, male or female.

Influence regular courts necessary?
The criminal court increasingly features in doping cases ^v. Although expressly not intended for that purpose, the Rodchenkov Act could have an effect on individual cases. The question arises whether the regular (criminal) court should get involved in sport-related cases. Public regulation is in fact not necessary, as the disposal of doping proceedings via sports disciplinary law provides enough safeguards for all parties involved. Obviously, principles of civil law prevail in sports disciplinary law and as the severity of sanctions increases, criminal law principles come more into focus. The requirements set for sports disciplinary law become more stringent in procedural terms, which works well in practice.

The current system and existing set of rules (WADA Code), too, offer possibilities to deal with large-scale doping structures. ^vi For instance, doctors involved in doping are placed on a public global list, to ban them from sport. ^vii The revised version of the WADA Code, which will be taking effect on 1 January 2021, sets additional requirements for the disposal of cases by independent disciplinary bodies (in the Netherlands, for instance, the ISR disciplinary committee will be disposing of doping cases as from 1 January 2021, instead of the disciplinary committees of the various sports associations).

Empty shell
The Rodchenkov Act will no doubt play a role at the 2021 Olympic Games in Tokyo, COVID-19 permitting. WADA and IOC wish to prevent the application of the Act. Earlier, WADA made some critical comments about the imposing of prison sentences in doping cases. ^viii The main objection is that the current system is based on the principle of strict liability, in short the personal obligation of every athlete to ensure that no banned substances and/or degradation products enter his or her body. ^ix In other words: the athlete has to prove his/her innocence. Strict liability is at odds with the disposal of doping cases under criminal law, which is based on the presumption of innocence, and the prosecution will have to prove that doping has been used. Moreover, ‘suspects in criminal doping cases’ have the right to remain silent, a right which is absent in (international) sports disciplinary law. Another major difference in approach.

The United States have turned a deaf ear to WADA’s criticism. The Rodchenkov Act will no doubt affect the international policy on how to deal with doping. For Dutch athletes the implications will be minor as long as they keep far from international doping networks.

Michiel van Dijk specialises in sports law. He is a member of the specialised sports practice group of CMS lawyers (Utrecht) and is active in sports as an executive and (former) athlete. Having chaired the NOC*NSF Doping Audit Committee for eight years, Van Dijk currently acts as chair of the NRB disciplinary tribunal. In addition, he is an arbitrator with the Instituut Sportrechtspraak and is a member of the disciplinary tribunal for professional football KNVB. Van Dijk is secretary of the Dutch Association for Sport and Law and an editor of Tijdschrift voor Sport & Recht. In May 2014 NOC*NSF awarded him the medal of merit. A former rugby international, Van Dijk has become a dedicated competitive athlete, running 25 marathons.