6th February 2020

Sense of perspective needed over Rodchenkov Act hysteria

Widespread outrage is brewing over perceived interference in US attempts to legislate against international doping conspiracies. At a hearing of the Senate Committee on Commerce, Science and Transportation yesterday (video below) Travis Tygart, the CEO of the US Anti-Doping Agency (USADA) called for the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC) to testify before the US Senate.

Anger over the perception that Russia has ‘escaped justice’ for manipulation of the doping control system is understandable, and WADA’s failures in dealing with the situation are well documented. However, WADA argues that it is being attacked for doing its job, and that well-meaning legislation may drive a coach and horses through rules designed to facilitate international cooperation in tackling anti-doping. Such action could even assist the Russian Anti-Doping Agency (RUSADA) in its appeal against WADA’s sanction at the Court of Arbitration for Sport (CAS).

Senate asked WADA to provide its written position on Rodchenkov Act

The Senate Committee on Commerce, Science and Transportation asked WADA to outline in writing its position on the Rodchenkov Anti-Doping Act (RADA) ahead of yesterday’s hearing, which resulted in WADA providing a six page letter (PDF below). WADA has faced criticism for its opposition to aspects of the Act, after reports suggested that it and the IOC had petitioned US legislators regarding concerns. Last year, WADA used part of its US budget to travel to the US to discuss the Act with legislators.

‘WADA was asked by the US Senate Committee to provide, in writing, its position on the Rodchenkov Anti-Doping Act and we were happy to assist’, wrote a WADA spokesperson in an email. ‘WADA favours governments using their legislative powers to protect clean athletes in the fight against doping, and this Act is no exception. As with several governments of the world and international sports federations, WADA is concerned that, as it is currently drafted, the Act may lead to some negative unintended consequences. In that regard, there remains some uncertainty around the implications of the extra-territoriality aspect of it.

‘One of the key features of anti-doping is the harmonisation of rules across borders and we would not want to see that principle compromised to the detriment of the global system or in a way that could put athletes or whistleblowers at risk. Currently, there are elements of the Act that could backfire and be counter-productive for the protection of clean sport around the world. Also, it is strange that the Act covers international events but not major sporting events or leagues within the US. We have not been able to gain clarity on why that is the case.’

The above letter outlines concerns that the RADA criminalises doping and seeks to apply that criminalisation extraterritorially, using US law as a basis for restitution. It warns that ‘other nations will follow suit and inevitably competing jurisdiction on the same set of facts will result in confusion, weaken the system, and compromise the quest for clean sport’.

It also warns that if other nations do follow the US lead and adopt similar legislation subjecting US athletes to extraterritorial jurisdiction, ‘the web of rules that would result could be used as “weapons” in a tit-for-tat process […] US athletes will then be at risk of retaliation measures that are politically driven.’

WADA recommends that legislators retain the provisions within the RADA that allow information sharing between US legislators; strengthen protection for US whistleblowers ‘consistent with the World Anti-Doping Code’; and delete provisions that have extraterritorial application, which it says will ‘undercut the standardisation of anti-doping laws’ and in practice, will impede whistleblower recruitment. ‘Legislation authored in revulsion to the Russia’s cheating could quickly create an international dynamic that undermines the very international system that continues to pursue and punish inappropriate behaviour by Russia and help them evade consequences for their behaviour’, it concludes.

Comment

WADA’s Statutes require it to ‘cooperate with intergovernmental organisations, governments, public authorities and other public and private bodies fighting against doping in sport’; and ‘to promote harmonised rules, disciplinary procedures, sanctions and other means of combating doping in sport, and contribute to the unification thereof, taking into account the rights of the athletes’.

Yes, WADA did spend money sending a delegation to the US to discuss its concerns with legislators last year. But it appears unfair to criticise WADA for raising legitimate concerns, as required by its Statutes, especially when it was explicitly asked to do so by a US Senate Committee.

There is a general lack of understanding regarding what action WADA has taken to combat Russia’s manipulation of the doping control system, as well as what action it can take. So it is perhaps time to set the record straight on a couple of issues.

1. Russia is appealing a ban from international sport

The Washington Post reported that Russia is appealing a four year ban from international competition. This isn’t strictly accurate. WADA only has jurisdiction over anti-doping. It has no jurisdiction to ban Russia from international sport.

RUSADA is appealing a WADA decision to declare it non-compliant with the World Anti-Doping Code for a four year period. WADA ruled that Russian athletes would only be able to participate in international events as neutrals during this four year period if they can demonstrate that they are untouched by State manipulation of the doping control system. So we will see Russian athletes compete at the Tokyo 2020 Olympics, just not under the Russian flag.

2. Russia is being unfairly targeted, as its athletes aren’t doping

Graph of 2017 ADRVs by country…

A second theory is that Russia is being unfairly targeted by WADA, as its own figures show that it ranks fifth in terms of anti-doping rule violations (ADRVs). An addition to this theory is that the media ‘covered up’ this fact by not reporting it.

Russia’s State manipulation of the doping control system was designed to cover up adverse analytical findings (AAFs) before they became ADRVs. The whole point of State manipulation of the doping control system was that its top ‘protected’ athletes would not report ADRVs. 

A low ADRV rate indicates successful manipulation of the doping control system. And such manipulation ended (as far as we know) with the discovery of the system in December 2014.

For instance, at Sochi 2014, Russia didn’t report a single AAF. This, in itself, should have raised concerns at WADA. However, retesting of samples identified as being subject to the ‘disappearing positive methodology’ outlined by Dick Pound and Richard McLaren in their four reports into Russian State doping for WADA revealed that many Russian athletes had doped during Sochi 2014.

The Sports Integrity Initiative didn’t report WADA’s 2017 ADRV figures. We had planned to analyse the figures, as in previous years, but other projects meant such analysis had to take a back seat. The figures were reported by InsideTheGames. There wasn’t a ‘cover up’.

The issues highlighted above play into the hands of conspiracy theorists who argue that sport’s actions against Russia are part of some kind of western xenophobic plot against Russia. The idea that WADA unfairly ‘lobbied’ legislators in the US adds credibility to this argument, inadvertently supporting RUSADA’s appeal. 

Anyone who has followed or reported on Russia’s State manipulation of the doping control system since it was uncovered in December 2014 will be aware of such conspiracy theorists, some of whom appear to be respectable journalists. Their activity seems to have ramped up since RUSADA announced its CAS appeal.

It is understood that at the CAS, RUSADA will seek to argue that it is being unfairly targeted by WADA. Whilst anger against perceived inaction regarding Russia’s continued manipulation of the doping control system is understandable, a sense of perspective is important. 

As WADA puts it: ‘This litigation, which constitutes the most significant anti-doping enforcement action since the establishment of WADA, is pending before the CAS. WADA is urging a cautious, go-slow approach to passing any legislation designed to upend the entire global anti-doping system. Such a move would jeopardise the international system, could undercut the foundation upon which WADA sanctioned Russia; and, send shockwaves through the system precisely at a time when clean sport needs a strong and globally recognised system.’

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