- Peter Pelzer
Rodchenkov Anti-Doping Act: a pragmatic step toward principled wilderness
In November 2020, almost unnoticed between a second wave of Covid infections and the nomination of Amy Coney Barrett to the Supreme Court, a bill passed the deeply divided United States Senate by unanimous consent: the Rodchenkov Anti-Doping Act. The law was proposed in 2019, three years after Grigory Rodchenkov, who lent it his name, blew the whistle on Russia’s state-run doping programme at the Winter Olympics 2014 in Sochi. Rodchenkov, who was director of the Russian anti-doping laboratory at the time, gave a detailed account of how athletes were administered drug cocktails and how the doping was subsequently covered up, by swapping urine samples in a Hollywood-style operation.
The US legislature reacted to the revelations in a less entertaining, but equally consequential way. The Rodchenkov Anti-Doping Act makes it a criminal offence in the US to manipulate a major sports competition anywhere in the world in which at least one American athlete competes. This means that American courts could convict persons who are not US citizens, have never even been to the US, to up to ten years in prison for being involved in doping at a competition taking place outside of the US. Prosecuting foreign citizens for conduct committed abroad is relatively common for some very serious crimes, such as war crimes or piracy. But extending the same practice to the non-violent offence of manipulating a sports competition is unprecedented.
It can be surprisingly difficult to decide which state’s criminal justice system should become active in a case. In principle, it should always be the state where the crime was committed, because it is considered that this state alone is legitimately allowed to prescribe how people behave in its territory, but this principle sounds much more straightforward than it is. In a globalised world, different elements of the same crime may take place in different countries, even more so with the rise of cyber crime. To solve these difficulties, and to avoid conflict between states, international lawyers have formulated some rules under which states may prosecute crimes that did not, or not fully, take place on their territory. They need to prove a connection to the crime in one way or the other, for instance that the perpetrator is their national, or the effects of the crime were felt on their territory.
The Rodchenkov Anti-Doping Act requires that at least one American athlete participates in the manipulated competition. Since that athlete is in a worse competitive position and potentially deprived of prestige and prize money, they are the principal victims of the manipulation. The jurisdiction of the American criminal is thus based on the nationality of the victim. This connecting factor is called ‘passive personality’ and is highly contested for a number of problems that it entails. The passive personality principle is mostly seen as a political tool for states ostensibly to ‘protect’ their citizens abroad without respect for the local laws or customs. It may well come as a surprise to someone that they committed a crime, for instance if they entered into what they considered usual business dealings with a person in whose home country the same conduct is considered fraudulent. Such a ‘perpetrator’ may not even know the nationality of their ‘victim’ and thus have no idea how they are allowed to behave. This may lead to arbitrary criminal prosecution and violate the fundamental right to a fair process.
For doping cases, it could be said, these arguments are less relevant since the nationalities of the contestants as well as the rules of the game are well known and agreed upon in advance. Yet, the Rodchenkov Anti-Doping Act may be one step to reinforce global inequality. The US and a handful of other countries can pull off an anti-doping act like this as they have enough influence around the world to get a hold of whoever violates it. It is quite likely that the Act makes it less attractive to help manipulate sports competitions, even for people outside the US. But the majority of countries lie too far out on the periphery of global politics, economy, and attention for their laws to develop real effect outside their territory. If a Pacific island state were to enact similar legislation, hardly anyone involved in international athletics would be deterred from doping.
The danger of the Rodchenkov Anti-Doping Act is that it sets an example for how convenient the passive personality principle can be as a tool to exert pressure in international relations. Not only convenient, but also an unequal tool, powerful only in the hands of those states that are already in a dominant position. It leads to international tension being reflected in conflicting criminal norms and arbitrary sanctions that are ultimately borne by individuals. Despite its problems, using the passive personality principle is not ‘illegal’. The way international law works, most things are legal as long as they are silently accepted. Many states have enacted provisions that enable prosecution of crimes against their nationals abroad, without significant opposition. But these provisions are rarely used and, if they are, often enough furthering political tension, for instance when the Turkish authorities threatened to prosecute the French magazine Charlie Hebdo. In light of this, the reaction to the Rodchenkov Anti-Doping Act has been surprisingly weak. It provoked some cautious criticism from the International Olympic Committee and the WADA, who are concerned about the harmonisation of anti-doping standards, but it has not attracted broader international attention, let alone opposition (except, of course, from Russia Today). On the other hand, contrary to the hopes expressed by Grygory Rodchenkov’s attorney, there have not been many signs that other countries would enthusiastically follow suit with similar legislation.
The prevention of doping is – at least outside Russia – an uncontroversial aim. Since the efforts by the World Anti-Doping Agency (WADA) have proved insufficient at the Winter Olympics in Sochi, it could be welcomed that the United States step in and support the WADA’s cause. The former Belgian diplomat Johan Verbeke once said in a talk to students that on the international stage, principles do not count, only pragmatism does. The Rodchenkov Anti-Doping Act seems to be born out of such a pragmatic attitude, ignoring most principled concerns. As it skips ahead of lengthy reforms of the international anti-doping system, the Act is an effective way to deter doctors and functionaries from getting involved in doping schemes in the short term. It is a quick solution to a concrete problem and were it not for the daunting prospect that states could embrace the passive personality principle for more problematic purposes, there is little for which to criticise the law. And so it seems that the American legislature takes a well-intended, pragmatic step toward principled wilderness.