By Ryan Connolly
Earlier this week, the United States Congress moved closer to establishing federal criminal penalties for international doping fraud conspiracies, such as the Russian Doping scandal that rocked the Olympic world in 2016. “The Rodchenkov Anti-Doping Act of 2019”–controversially named after a chief perpetrator and eventual whistleblower of the aforementioned scandal–was passed by the House of Representatives on October 22. If signed into law, H.R. 835 would establish significant criminal penalties–up to 10 years in prison and $250,000 in fines for an individual–and make it unlawful to “knowingly carry out…a scheme…to influence by use of a prohibited substance or prohibited method any major international sports competition.” Under the Act, such an international competition must (1) have at least one U.S. athlete participating, (2) have at least three non-U.S. athletes participating, (3) be governed by the World Anti-Doping Code, and (4) receive sponsorship or broadcast rights money from a U.S.-based organization.
Importantly, a person’s intention is a key element of the section of the Act establishing criminal penalties. A person must knowingly intend to influence an international competition through doping fraud to violate the Act. Unless the actions of the person are fairly blatant and backed by evidence demonstrating an intent to cheat the system, establishing the “knowingly” element may be a significant bar for a federal prosecutor to clear in many cases. This should largely alleviate concerns of criminal penalties for certain actors who are inadvertently responsible for positive doping tests. This includes dietary supplement companies and executives whose products are found to be contaminated (unintentionally) with a banned substance. However, such potentially negligent actors may still be found responsible for the consequences and face significant civil damages and penalties, as is reaffirmed by the Act.
Another significant aspect of the Act is related to information sharing between the United States government and the United States Anti-Doping Agency (USADA), a non-governmental Colorado non-profit corporation that conducts anti-doping activities for Olympic sports in the United States. Under the Act, the U.S. Department of Justice (DOJ), the Department of Homeland Security (DHS), and the Food and Drug Administration (FDA) are required to coordinate with USADA with regard to any investigation related to an international doping fraud conspiracy, unless the integrity of that agency’s criminal investigation would be affected. This coordination specifically includes that the agencies must “shar[e] with USADA all information in [their] possession…which may be relevant to any such potential violation” of the Act. If the Act is signed into law, this new information sharing requirement could prove to yield a treasure trove of knowledge that may have been previously inaccessible to USADA.
Ryan Connolly is a Los Angeles-based attorney serving as counsel to various businesses, individuals, and dietary supplement / anti-doping-related organizations, including Banned Substances Control Group (BSCG).