SII Focus 17th November 2020

Rodchenkov Act’s passage heightens friction between WADA & the US

The passage of the Rodchenkov Anti-Doping Act (RADA) by the US Senate yesterday has heightened frictions between the World Anti-Doping Agency (WADA) and the US. The Act (H.R.835) aims to establish criminal penalties for defrauding international sporting competitions through doping schemes, however WADA is concerned about its extra-territorial reach. 

The passage of the Act was welcomed by the US Anti-Doping Agency (USADA), but WADA expressed continued concerns. In February this year, WADA wrote to US Senators warning that RADA could ‘have the unintended consequences of shattering the anti-doping system’. It is concerned that its extraterritorial aspect could lead to a situation where non-US investigations could be obliged to share information with USADA. 

Section 4 of the Act, entitled ‘Major International Doping Fraud Conspiracies’, mandates that it is illegal to conspire to create a doping scheme, and outlines that there is ‘extraterritorial Federal jurisdiction’ over this offence. Section 7 of the Act mandates that when an offence is committed under Section 4, the Department of Justice (DoJ), Homeland Security (DHS), and the Food and Drug Administration (FDA) shall share relevant information with USADA.

‘The problem was the extraterritoriality issue, having one law in the USA that could potentially apply anywhere in the world’, explained Olivier Niggli, WADA’s Director General, at its 15 May 2019 Executive Committee meeting. ‘No other countries had done that. Then there would be an overlap of responsibilities, a case with different laws that could potentially apply, and the whole system would become a lot more complicated rather than there being clear responsibilities.’

Continued lobbying

WADA today claimed support from the Council of Europe and International Olympic Committee (IOC) for its position, although neither has released a statement. It is understood that at its recent Foundation Board meeting, WADA increased the $250,000 it previously budgeted towards US activities to $400,000 for 2021. This suggests that despite its passage in the Senate, WADA will continue to lobby against RADA. At the 2019 World Conference on Doping in Sport, concerns were raised after it emerged that WADA had spent part of its budget allocated to US activities on lobbying against RADA.

Earlier this year, the US Office of National Drug Control Policy (ONDCP) recommended that the US should consider withdrawing funding from WADA due to its failure to reform. Whilst WADA and the US Office of National Drug Control Policy (ONDCP) put out a statement in November agreeing to work together, WADA had already discussed plans to implement sanctions against public authorities that withdraw agreed funding at its September 2020 Executive Meeting.

Minutes from WADA’s September 2020 Executive Committee meeting…

At that meeting Witold Bańka, President of WADA, outlined that governments had expressed concern about the US withdrawing funding. ‘The governments had identified what they considered to be a weakness in the WADA rules’, read the meeting minutes. ‘They had asked WADA to consider amending the rules. The view expressed was that the governments that refused to meet their agreed funding commitments should face significant consequences under the International Standard for Code Compliance by Signatories [ISCCS].’ 

The US hasn’t withdrawn funding yet and other contributors haven’t paid, yet WADA is considering sanctioning those who withdraw funding…

Richard Colbeck, Australia’s Minister for Youth and Sport, warned WADA about going down the path, pointing out that over 60 contributors to WADA’s budget had yet to pay. This was underlined by discussions over WADA’s budget (see right), which outlined that many public authorities had yet to pay their contributions for 2020.

Two budgets

At the Executive Committee meeting, WADA told the public authorities that if  the US withdraws its planned US$2.9 million contribution, it will seek ‘additional contributions’ of $1.5 million from public authorities – which would be matched by the IOC – to make up the shortfall. If the public authorities do not agree to this, it would have to ‘cut all areas further by about $250,000’. This would include changing WADA’s travel policy from business to premium class.

WADA outlined the consequences should the US withdraw funding…

Two 2021 budgets were drawn up by WADA. With the US contribution, WADA’s budget will grow by 8% to US$43.4 million. Without its contribution, WADA’s budget would be $40.5 million. This still represents a $1 million increase on WADA’s planned 2020 budget of $39.5 million, which WADA said it had been forced to revise to $37.7 million due to missing contributions ‘from a number of large countries, including Spain, Mexico and Brazil’.

So it would appear that whether or not the US withdraws its funding, WADA’s budget will still increase for 2021. If the US does withdraw its funding, WADA will still be better off by $100,000 due to its plan of seeking $3 million from the public authorities and the IOC to cover the withdrawal of the US’s $2.9 million contribution. 

As previously mentioned, it is understood that $400,000 of that budget has been allocated towards US activities, compared to $250,000 previously. Irrespective of whether the US withdraws its funding, it remains to be seen whether the public authorities and the IOC – which fund WADA – are happy for money pledged towards fighting doping to be used to interfere in State legislation.

Diplomacy

Earlier this month, WADA released guidance for National Anti-Doping Organisations (NADOs) on how to remain operationally independent from governments, as required by the 2021 World Anti-Doping Code. Yet WADA has continually interfered in the US government’s passage of RADA. It labelled an ONDCP Report as inaccurate, issuing a 46 page response which also contained many inaccuracies. It is not hard to see how some might view this as double standards.

WADA’s failures to deal with international doping scandals has pushed the US into legislating, as detailed in this article. WADA continues to attack or exclude those pushing for change, which is why it has found itself in this situation. The US feels its concerns have been ignored. The fact that sanctions are now proposed for those who consider withdrawing funding, when 60 WADA contributors are in arrears, appears as an attempt to punish the US. The fact that WADA appears to be pressuring public authorities into covering any shortfall is understood to have left a bad taste in the mouth of many.

Section 5 of the Rodchenkov Anti-Doping Act…

RADA mandates that an indictment must be issued if an offence takes place in a foreign country, and no person can be prosecuted until that indictment is returned. A ten year Statute of Limitations is suspended if the offence takes place in a foreign country.

WADA is right to be concerned that this may pressure countries into extraditing those suspected of being involved in doping conspiracies to the US, potentially compromising investigations. But indictments are not exclusive to anti-doping, and they can be ignored.

Lamine Diack, former President of the International Association of Athletics Federations (IAAF) remains in custody in France. This is despite the IAAF being headquartered in Monaco, and Diack’s Senegalese nationality. France is still attempting to extradite his son, Papa Massata Diack, from Senegal to face trial for alleged crimes involving Russia and Singapore.

From a US perspective, WADA has failed to deal with Russian State doping for many years. In 2015, a similar situation occurred in football, which had failed to deal with systemic corruption for years. Had it not been for US extra territorial reach, Sepp Blatter might still be President of FIFA. This extra territorial reach has already extended into anti-doping – irrespective of RADA.

Doping conspiracies are often multinational. The Operation Aderlass investigation into the blood doping customers of Dr. Mark Schmidt involved police action in Austria and Germany, both countries which have criminalised doping, as RADA does. Sport is still struggling to deal with a doping conspiracy in weightlifting, as none of the countries involved have criminalised doping.

WADA has every right to defend the regulatory system that has been created around anti-doping. Underpinned by nebulous concepts such as the ‘specificity of sport’, a closed legal system has been created where an athlete is assumed to be guilty of doping unless they can prove that they are innocent. Appeal is only permitted to the Court of Arbitration for Sport (CAS), which is funded by sport and staffed by sports law experts. 

Incidentally, this is why RADA doesn’t apply to US professional sports. US professional sports are not signatories to the World Anti-Doping Code because they have collective bargaining agreements (CBAs) with the unions that represent their athletes. Under such CBAs, the leagues and unions negotiate anti-doping testing protocol with the players. In contrast, the Code has little athlete input and requires the surrender of many rights – a situation that would not be acceptable to the US player unions and would lead to a lockout. This situation actually transpired in 2011.

RADA would disrupt all of these cosy little arrangements. Perhaps that is no bad thing. 

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