13 March 2020

WADA allege Senate Committee failed to respond to meeting requests

The World Anti-Doping Agency (WADA) has alleged that the Chair of the US Senate Committee on Commerce, Science and Transportation has failed to respond to its requests for a meeting to discuss its concerns about the Rodchenkov Anti-Doping Act (RADA). On Wednesday, the Committee approved the Act (PDF below), which means that it will head to the full Senate for approval.

Statements from WADA and the International Olympic Committee (IOC) outlined three major concerns about the RADA. The first involves the extraterritorial reach of the Act. The second is related to the first, and alleges that an unintended consequence of the Act’s extraterritorial reach will have a counter productive effect on whisteblowers. The third involves the ommission of US professional and college sports.

Whilst WADA and the IOC say that they welcome the RADA, they are concerned that its extraterritorial aspect could lead to a situation where overseas investigations would be obliged to share investigation 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 the US Anti-Doping Agency (USADA).

“A second unintended consequence is rather than assisting WADA and law enforcement engage whistleblowers as the legislation intends, the bill will actually impede the capacity to use whistleblowers by exposing them to multiple jurisdictions and preventing ‘substantial assistance’ deals”, said Witold Bańka in WADA’s statement. “This will thus greatly compromise WADA’s and other ADOs’ investigation capacity”.

The IOC statement said that the RADA should include professional and college US sports. WADA also questioned why US professional and college sports are omitted from the RADA. ‘WADA wishes also to understand, if, as claimed by its promoters, the stated aim of the legislation is to protect athletes, why it excludes vast areas of US sport, in particular the professional leagues and all college sport’, reads its statement.

US professional sports are not signatories to the 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 World Anti-Doping 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 transpired in 2011.

The US professional leagues separate performance enhancing drugs from ‘substances of abuse’, for which treatment is prescribed rather than a ban. If a player fails to engage with treatment, a ban can follow. In contrast to this, under the World Anti-Doping Code an athlete who took cocaine in a nightclub can face the same four year ban as an athlete who used erythropoietin (EPO) to cheat in the Tour de France. 

Such an approach can have unintended consequences. UK footballer Josh Yorweth was sanctioned with a four year ban after refusing a test because he had take cocaine the previous weekend, and knew he would test positive. Had he agreed to take the test, it is possible he may have been given a shorter ban.

Such situations may be rectified by the ‘Substance of Abuse’ clause in the 2021 Code. Article 10.2.4 mandates that when an anti-doping rule violation (ADRV) involves a Substance of Abuse, and the athlete can establish that the use occurred out of competition and was unrelated to sporting performance, then an athlete can reduce a sanction down to one month, if they agree to completion of a substance abuse programme. However, Liam Cameron’s case highlighted potential issues with proving that use was recreational.

Under the WADA model, the ordinary burden of proof is reversed. In a criminal trial, a defendant is considered innocent until proven guilty. Under the strict liability principles of the World Anti-Doping Code, an athlete is considered guilty of an anti-doping rule violation (ADRV) unless they can prove they are innocent. It appears unlikely that player unions would agree to such a situation as part of a CBA.

WADA and the IOC have faced criticism for interfering in new developments designed to redress this imbalance. It is understood that the IOC objected to the Anti-Doping Charter of Athlete Rights, changing its name to the Athletes Anti-Doping Rights Act. Major changes were made to the Act, including the removal of measures to make sporting officials involved in anti-doping proceedings subject to the same standards as athletes.

Under the US model, such changes would be likely to lead to a breakdown in the CBA. US sport sees the fact that it negotiates such issues with its players as a strength, whereas the actions of the IOC and WADA appear to indicate that it views this principle of negotiation with athletes as a weakness. 

The IOC and WADA are aware of the US position on why college and professional US sports are excluded from the RADA, as it has been debated with its officials at conferences. Why they have asked US Senators to clarify this is unknown.

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