On December 4, 2020, President Donald Trump signed the Rodchenkov Act (“the Act”) into law. It allows U.S. justice officials to pursue criminal penalties against athletes and their entourages — doctors, coaches, agents, trainers, officials, and others connected to the athletes — involved in doping conspiracies at international events that include U.S. athletes, sponsors or broadcasters.[i]

 Named after whistleblower Grigory Rodchenkov, who exposed Russia’s state-sponsored doping, the Act passed with little opposition in both the House and Senate. The only opposition to the Act came in the form of lobbying efforts from the World Anti-Doping Agency (“WADA”).

 The Act was adopted in response to WADA’s failure to suspend the Russian Anti-Doping Agency for violations at the 2014 Sochi Winter Olympics. Following the 2014 Olympics, Rodchenkov exposed Russia’s illegal use of steroids in order to win the most gold medals and medals overall. WADA’s response to the scandal was perceived as a mere slap on the wrist by the United States: a threat of jail time and a four-year ban from international competitions for those involved in the Sochi Russian scandal. These inadequate responses were brought about by disagreements within WADA.

 Under the Act, prosecutors can seek fines of up to $250,000 for individuals — athletes, coaches, doctors, agents and officials — and $1 million for Olympic committees, in addition to jail terms of up to 10 years and restitution for victims.[ii] The expectation is that the Department of Justice will use the Act to “eradicate doping fraud and related criminal activities from international competitions.”[iii] Ultimately, the Act is meant to prevent doping at all international events, including those outside of U.S. territory, which the U.S. previously had no power over due to WADA having sole jurisdiction to litigate doping violations.

Under the Act, violators can be arrested and extradited to the United States, which Jim Walden, the drafter of the Act and attorney for Rodchenkov, thinks will have an immediate impact on reducing doping activities at international events.[iv] WADA has noted that “[n]o nation has ever before asserted criminal jurisdiction over doping offences that occurred outside its national borders.”[v]

However, under closer inspection, I argue that the Act is ineffective because it will not be able to achieve its intended goal of eradicating doping at all international events, because a U.S. court would not, and should not, uphold a conviction for violators at international events occurring outside the United States. This is because, under the three-part inquiry to determine whether a U.S. law may apply extraterritorially, the Act violates two parts: the principle of reasonableness and the Charming Betsy doctrine.

In order to avoid violating the principle of reasonableness and Charming Betsy doctrine, the scope of the Act has to be defined more narrowly. However, in doing so, foreign athletes competing outside the United States would prevail in U.S. jurisdictions if charged with violating the Act, as U.S. criminal jurisdiction would not apply. As such, doping misconduct falls outside of the Act’s jurisdiction so long as it takes place internationally. For example, Sun Yang, a decorated Chinese swimmer, currently embroiled in controversy following allegations of doping. would face no consequences for his actions under this Act, because his doping misconduct occurred outside the United States.

WADA’s concerns with the rodchenkov act

 Since its establishment on November 10, 1999, WADA has aimed to eradicate doping in sports through enacting its World Anti-Doping Code (“the Code”).[i] For more than twenty years, the Code has been the core authority on anti-doping policies, rules and regulations for sports organizations around the globe. Since 2007, international law, through the ratification of the International Convention against Doping in Sports by 191 states, supports the Code’s power to enforce its rules and regulations.

The United States believes that WADA and the Code are inefficient and insufficient in addressing doping issues in sports. WADA’s alleged mishandling of the Russian doping controversy in the 2014 Sochi Olympics triggered the United States to adopt the Rodchenkov Act into law.

WADA has responded to the Act by highlighting three of its unintended consequences: (1) overlapping laws in different jurisdictions compromise having a single set of rules for all parties that are subject to the Code; (2) whistleblowers will be impeded from helping take down state-sponsored doping programs; and (3) the Act could be misused for purposes other than anti-doping.[ii]

 First, WADA claims that the Act will upset the global legal anti-doping framework that has been in place for decades.[iii] Having overlapping laws in different jurisdictions would upset the uniformity of rules against doping, which is at the very core of the global anti-doping program’s mission.[iv] WADA has warned that implementing the Act will undermine the global anti-doping movement by placing international cooperation in jeopardy and highlighting that no other nation has extraterritorial jurisdiction in this field.[v] Russia and other countries are already critical of any attempts by the United States to extend its jurisdiction to their countries, and the Act would only increase this hostility.

 Second, the Act will limit WADA’s and law enforcement’s capacity to use whistleblowers, as the Act intends to prevent them from making deals for asylum and protection by exposing the whistleblowers to multiple jurisdictions.[vi] Further, this limitation will essentially compromise WADA’s and other anti-doping agencies’ investigation capacity because there will be no centralized agency that handles every aspect of work against anti-doping in sports.

 Walden hopes that other countries will also adopt their own anti-doping laws and cooperate with the United States in fighting doping activities, which is in direct conflict with WADA’s goal of a centralized agency.[vii] Thus, by implementing the Act, the United States seems unwilling to support WADA’s vision of having a centralized entity to fight anti-doping.

Third, WADA asserts that there will be an emergence of other extraterritorial jurisdictions worldwide and a rise in misuse of extraterritorial application for purposes other than anti-doping. One possible use of the Act is to discriminate against athletes of specific nationalities. Such discriminatory use would undoubtedly lead to concerned parties, specifically Olympic committees and states, retaliating. In turn, retaliation could set off a chain reaction, resulting in chaos and confusion that is detrimental to anti-doping and athletes from all countries.

Potential misuse of the Act also raises concerns about fairness. As currently written, U.S. professional and college athletes are exempt and protected from prosecution under the Act. In response to this exemption concern, the U.S. Anti-Doping Agency expressed that there was no need to include U.S. professional or college sports in the Act because existing conspiracy, fraud and narcotics laws already allow for their prosecution.

Ultimately, the unprecedented Act would give the United States the power to punish persons outside of its normal jurisdictional boundaries and upset the traditionally accepted legal norms to address doping in sports.[viii] A patchwork of laws will hinder the use of whistleblowers and will subject “U.S. citizens and sport bodies to similar extraterritorial jurisdictions and criminal sanctions, many of which may be political in nature or imposed to discriminate against specific nationalities.”[ix]

why the rodchenkov act is ineffective in its goal

 There is a three-step inquiry to determine whether U.S. law precludes the Act from applying extraterritorially to the full extent intended by Congress. Under U.S. precedent, the Act first must rebut the “presumption against extraterritoriality.” Secondly, if the presumption is not rebutted or if the statute explicitly states that it applies extraterritorially, then the statute must conform with the “principle of reasonableness.” Finally, the Charming Betsy doctrine is used to further limit the statute’s extraterritorial application and requires courts to construe federal statutes to avoid conflict with international law governing jurisdictions to prescribe. Here, the Act survives the first prong, but fails the next two prongs of the inquiry.

Extraterritoriality

Generally, U.S. courts have held that “United States law governs domestically but does not rule the world.”[i] Accordingly, when interpreting a statute’s application abroad, the Supreme Court has found a presumption against extraterritoriality.[ii] This presumption must be rebutted in every case, on a case-by-case basis. If the presumption is not rebutted with a “clearly expressed congressional intent” that the statute applies extraterritorially, then the statute only applies domestically.[iii]

 Under the Food and Drugs Act, 21 U.S.C. § 2402, section 3, Congress explicitly stated that “[t]here is extraterritorial Federal jurisdiction over an offense under [the Rodchenkov Act].”[iv] Therefore, this prong is satisfied, and principle of reasonableness must be examined to interpret the United States’ criminal jurisdiction abroad.[v]

Principle of Reasonableness

 Courts have held that ambiguous statutes should be interpreted to avoid unreasonable interference with sovereign authority of other nations.[vi] For courts to construe the Act in the broad way that Congress hopes, there needs to be an identifiable domestic effect, whether direct or indirect, on the United States. Courts have often relied on the Restatement (Third) of Foreign Relations Law sections 402 and 404, to establish jurisdiction and then turn to section 403 of the Restatement, which limits the jurisdiction to prescribe.

 According to section 402, a state has jurisdiction to prescribe law when either “(1)(a) conduct . . . , wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, [are] present within its territory; [or] (c) conduct [occurs] outside its territory that has or is intended to have substantial effect within its territory.” A state also has jurisdiction to prescribe law for both “(2) the activities, interests, status, or relations of its nationals outside as well as within its territory; and (3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.”

 The Act could possibly survive section 402(2) because it is foreseeable that U.S. nationals would be disadvantaged by doping infractions of other countries competing at the Olympics or other international events. Because the activities, interests and relations of U.S. nationals outside as well as within its territory would be involved, federal courts could use this rationale to establish jurisdiction.

 At first glance, section 402(3) may also allow jurisdiction to prescribe law, because certain conduct outside the United States is directed towards a limited class of state interests. However, the comment to section 402 lists examples of what is included in “limited class of other state interests[,]” none of which has anything to do with anti-doping or sports. Instead, the list focuses on issues of state security, like espionage, counterfeiting money and falsification of official documents.

 Courts will likely also have to address claims regarding section 404 of the Restatement. Section 404 allows the United States to “prescribe punishment for certain offenses recognized by the community of nations as of universal concern[.]” Doping at international events is “of universal concern” as evidenced by the creation of WADA and the International Olympic Committee (“IOC”). However, doping does not cohere with the examples listed in section 404, which are concerned with security and defense, and therefore would unlikely apply here. Nonetheless, since section 402(2) gives the United States jurisdiction, next the courts must analyze section 403.

 Section 403 states that “a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.” Courts use all relevant factors, including those enumerated in section 403, to determine the reasonableness of a statute’s applicability over a person or activity.

Here, the courts would use several factors to determine if the Act is unreasonably too broad: “the existence of justified expectations that might be protected or hurt by the regulation;”[vii] “the importance of the regulation to the international political, legal, or economic system”;[viii] “the extent to which another state may have an interest in regulating the activity;”[ix] and “the likelihood of conflict with regulation by another state.”[x]

One example where courts routinely find that it is reasonable for the United States to prescribe its laws is in cases concerning antitrust law. The courts find that applying U.S. antitrust laws to foreign conduct is reasonable even though U.S. laws can, and do, interfere with a foreign nation's ability to regulate its own commercial affairs.[xi] Doing so is consistent with prescriptive comity principles — looking for consent or implied consent from other nations to ensure exercising American jurisdiction will not impede on diplomatic relations and deferring to foreign lawmakers — insofar as the laws reflect a legislative effort to redress domestic antitrust injury caused by foreign anticompetitive conduct.

However, courts have also held that it is unreasonable to apply U.S. laws to foreign conduct when that conduct only causes independent foreign harm. For example, in F. Hoffman-La Roche Ltd. v. Empagran S.A., the Court noted that applying U.S. remedies to conduct taking place abroad “has generated considerable controversy” in other countries, even in those that agree with U.S. substantive law on issues like banning price fixing.[xii] Ultimately, in order to avoid such controversy, the Court rejected application of the Sherman Act when foreign injury was independent of effects in the United States.

Like in Empagran, where the Court refused to apply U.S. law to remedy the harm, it is likely that the Act could not be applied to international events outside the United States to remedy the alleged harm. Unless competitions are taking place on U.S. soil, the only connection between the alleged harm — that U.S. athletes might have lost a medal — and foreign conduct — doping — is that athletes from the U.S. participate in international sporting events.

Courts may resolve issues on a case-by-case basis, applying the Act where there is significant proof that the United States lost a medal, but it would be rare for the courts to do so because they would be less willing to disrupt the current, internationally accepted political and legal systems in place. In cases of doping at international events outside the United States, the connection between the U.S. government and other foreign Olympic athletes and their entourages is too tenuous and would likely be unreasonable.

This suggests that WADA’s concerns are valid. Specifically, prescriptive comity principles would be violated because there is no consent or implied consent from other nations and U.S. jurisdiction will impede diplomatic relations. The harm of doping at these events is a problem for every nation involved, which led to one hundred and ninety-one nations consenting to the creation of WADA and to Swiss Courts holding jurisdiction over doping violations. The expectations of every nation that has agreed to be regulated by this regime will be hurt by the Act, which, if construed broadly, will also lead to conflict with regulations from other states, such as Russia and China. The Act instead will disturb the international political and legal systems that have been in place for decades to fight doping activities and is only beneficial to the United States in this international regime.

 Overall, the principle of reasonableness and section 403 would likely require limitation of the Act to apply only to international events on United States soil. Interpreting the Act to apply to every person who partakes in doping would likely be an interpretation that unreasonably interferes with the sovereign authority of other nations. There is already a complex and generally accepted method and structure for dealing with doping controversies at international events.[xiii] Applying U.S. criminal jurisdiction abroad would upset the balance of competing considerations that WADA and Olympic Committees have agreed to for over four decades and essential permit U.S. laws to “rule the world.”

The Charming Betsy Doctrine

 The Charming Betsy doctrine requires U.S. Courts to construe federal statutes to avoid conflict with international law governing jurisdictions to prescribe.[xiv] Charming Betsy holds that a statute should not be construed to violate the law of nations if another possible construction exists.[xv] As mentioned above, another possible construction does exist: the Act should only apply to international events on U.S. soil.

 Unlike in antitrust law, there are no limitations in the Act’s language regarding its application abroad. The Act is broad, vaguely defined and can purportedly reach any athlete, doctor, coach, agent, trainer, official, organization, or committee at any international sporting event around the world for doping activities. Thus, even if a U.S. athlete was not harmed by another athlete’s doping and there was no “direct, substantial, and reasonably foreseeable effect on American domestic” interests at an international event, the United States could still use the Act to extradite the doping athlete to the United States to be judged by U.S. courts.[xvi]

 In policing doping activities, there is no consent or implied consent from other nations and, because of this, exercising U.S. jurisdiction would impede diplomatic relations and foreign lawmakers. Other states, like Russia and China, view implementing the Act as a power grab to punish athletes on foreign soil.[xvii] Because the Act specifically excludes U.S. athletes, this legislation is also seen as a means to protect U.S. athletes from legislation for doping conduct that occurs outside the United States. Further, if the Charming Betsy doctrine does not limit extraterritorial application, this apparent protection of U.S. athletes would lead to what other nations would likely perceive as an inequality. In fact, many state officials have expressed anger, disbelief or concern with the Act, which may cause these states to create their own laws to protect their athletes, coaches and others involved with international sports. This behavior could possibly create conflicting laws and impede diplomatic relations.

It is also unclear how WADA’s use of bans and sanctions would interact with U.S. laws, especially because the foreign athlete would essentially be charged for the same crime in several jurisdictions and likely receive multiple forms of penalties. An IOC spokesperson noted that athletes already face determent actions through sanctions and long-term suspensions under the Code.[xviii]

Due to these conflicts, U.S. courts would likely be required to construe the Act more narrowly than its original formulation, and thus the Act in its current state likely does not abide by the Charming Betsy doctrine.

sun yang controversy

WADA has given neutral Swiss entities like the Fédération Internationale de Natation (“FINA”) and the Court of Arbitration for Sport (“CAS”) the power to adjudicate doping violations. Many violators are legally and politically well-represented. One such violator is Sun Yang, a polarizing Chinese Olympic gold medal swimmer, who appeared before these entities in 2014 for a positive doping test and in 2018 for a tampered blood sample.

 Yang’s currently ongoing controversy stems from the incident in September 2018 when he was subjected to random blood and urine tests at his home in China. Yang allowed his blood to be taken but refused to submit a urine sample after questioning the testers’ credentials. After a standoff, a security guard at Yang’s home smashed the blood sample container.

At his 2019 hearing, FINA initially did not hold Yang or his team accountable for breaking and contaminating his blood sample. FINA let Yang off with a warning, an act that appeared to protect swimming’s biggest star. Yang’s 2020 hearing before CAS was less favorable. CAS ignored FINA’s initial warning and gave Yang an eight-year ban on swimming at international events for the alleged doping violations.

This ban would have effectively ended Sun Yang’s career. It prevented him from participating in the Chinese national team’s training and from working with anyone associated with the team.[i] However, in December 2020, Switzerland’s federal court overturned Yang’s eight-year ban from international swimming based on suspicions that one of the three CAS panelists who had issued the penalty, Italian foreign minister Franco Frattini, had not been wholly neutral.[ii]

 Although Congress and the drafters of the Rodchenkov Act hoped that it would curb doping activities and provide more effective punishment, U.S. courts could not get involved in a case like this because U.S. law would not apply, given that the offenses took place on foreign soil. Also, there was no harm to the U.S.: this case did not involve a U.S. swimmer losing a medal because it was a random blood and urine test independent of any upcoming international competition.

 U.S. courts would have to specifically consider whether exercising U.S. jurisdiction would impede on diplomatic relations and if the courts should defer to foreign lawmakers. A court would likely note that National Olympic Committees, like those of China and the United States, have already agreed to complex and widely accepted mechanisms and tribunals to litigate and arbitrate Code violations.

 Sun Yang’s case provides insight into the existing litigation process: FINA and CAS exercised their litigation powers and Switzerland’s Supreme Court subsequently dismissed the CAS’ judgements. This international sports litigation framework for sports arbitration and litigation was established in 1984 and has been operating for over three decades. The Rodchenkov Act in its original formulation would require U.S. courts would disrupt practices like this.

conclusion

As it is currently written, the Rodchenkov Act is ineffective in the fight against doping in international sports outside of the United States. Courts will hesitate to apply the Act to doping conduct at international events outside of U.S. territory because the principle of reasonableness and the Charming Betsy doctrine will limit its application extraterritorially.

 The Act also has no limitations to its scope and will disrupt the generally accepted norms for dealing with anti-doping in international events. It would also violate international prescriptive comity. Consequently, suits brought against athletes for doping in foreign territories, like Sun Yang, would quickly fail in U.S. courts, which would not apply U.S. criminal jurisdiction to international events outside of the United States. The Charming Betsy doctrine and principle of reasonableness should officially spell the end of the United States’ pursuit to extraterritorially apply its criminal laws against doping in sports.

end notes

[i] H.R. 835, 116th Cong. (2020) (enacted).

[ii] George Ramsay, US Anti-Doping Bill Signed into Law, CNN (Dec.5, 2020 10:28 AM), https://www.cnn.com/2020/12/05/sport/us-anti-doping-bill-rodchenkov-spt-intl/index.html.

[iii] U.S. Bill Targeting International Sports Doping Becomes Law, RFE/RL (Dec. 05, 2020), https://www.rferl.org/a/u-s-bill-targeting-international-sports-doping-becomes-law/30985598.html [hereinafter RFE/RL].

[iv] Id.

[v] Id.

[vi] World Anti-Doping Agency, https://www.wada-ama.org/en/who-we-are (last visited Feb. 24, 2021).

[vii] WADA Calls on US Senate to Consider Widely Held Concerns About Rodchenkov Act, World Anti-Doping Agency (Mar. 12, 2020), https://www.wada-ama.org/en/media/news/2020-03/wada-calls-on-us-senate-to-consider-widely-held-concerns-about-rodchenkov-act.

[viii] Eddie Pells, Bill to Criminalize Doping Schemes Signed Into Law, Associated Press (Dec. 4, 2020), https://www.usnews.com/news/sports/articles/2020-12-04/bill-to-criminalize-doping-schemes-signed-into-law.

[ix] Ramsay, supra note 2.

[x] Ali Iveson, Rodchenkov Anti-Doping Act Signed into Law by US President, Inside the Games (Dec. 4, 2020), https://www.insidethegames.biz/articles/1101605/rodchenkov.

[xi] WADA Statement on U.S. Senate’s Passing of the Rodchenkov Anti-Doping Act, World Anti-Doping Agency (Nov. 17, 2020), https://www.wada-ama.org/en/media/news/2020-11/wada-statement-on-us-senates-passing-of-the-rodchenkov-anti-doping-act [hereinafter WADA Statement].

[xii] Rodchenkov Anti-Doping Bill Signed Into US Law By Trump, france24 (May 17, 2020), https://www.france24.com/en/live-news/20201205-rodchenkov-anti-doping-bill-signed-into-us-law-by-trump.

[xiii] RFE/RL, supra note 3.

[xiv] WADA Statement, supra note 11.

[xv] RJR Nabisco v. European Community, 136 S.Ct. 2090, 2100 (2016).

[xvi] Id.

[xvii] Id. (quoting Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010)).

[xviii] H.R. 835, 116th Cong. (2020) (enacted).

[xix] Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010).

[xx] See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004).

[xxi] See Restatement (Third) of Foreign Relations Law § 403(2)(d) (1987).

[xxii] See Id. § 403(2)(e).

[xxiii] See Id. § 403(2)(g).

[xxiv] See Id. § 403(2)(h).

[xxv] See Id. § 415(2).

[xxvi] F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 167 (2004).

[xxvii] See the World Anti-Doping Code, available at https://www.wada-ama.org/en/resources/the-code/world-anti-doping-code?gclid=Cj0KCQjwmcWDBhCOARIsALgJ2QeVScqJbzAigkM4_S6OYXddcEauv7Bv_Vd1RwXSx5XByModTJ6DJcMaAjJ-EALw_wcB.

[xxviii] Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804).

[xxix] Id.

[xxx] See 15 U.S.C. § 6a.

[xxxi] George Ramsay, US Anti-Doping Bill Welcomed as ‘Monumental Day’ in the Fight For Clean Sport Amid WADA Criticism, CNN (Nov. 18, 2020), https://www.cnn.com/2020/11/18/sport/us-anti-doping-bill-wada-spt-intl/index.html.

[xxxii] Ramsay, supra note 2.

[xxxiii] Craig Lord, Sun Yang Dropped From Olympic Training Squad After WADA Alerted To Potential Breach Of Code, Swimming World Magazine (Apr. 23, 2020), https://www.swimmingworldmagazine.com/news/sun-yang-dropped-from-olympic-training-squad-after-wada-alerted-to-potential-breach-of-code/ (quoting WADA Code Rule 10.12.1).

[xxxiv] Tariq Panja, Chinese Swimmer’s Doping Ban Is Lifted After Accusation of Racism, N.Y. Times (Dec. 23, 2020), https://www.nytimes.com/2020/12/23/sports/olympics/sun-yang-china-doping.html.

about the writer…

Jacob was born and raised on a farm about two hours north of Pittsburgh, Pennsylvania. He graduated from Boston College in 2018 with a degree in Political Science and a minor in Chinese, and studied abroad at Hong Kong University. While at USC, Jacob was a judicial extern at the Ninth Circuit and a legal intern for the Nashville Predators of the National Hockey League, and has been involved in several organizations. He has also served as the Editor in Chief of the Law for Business Periodical and as Alumni Relations Chair of the Entertainment Law Society.