David Owen

Let me make clear at the outset, I would rather live under a rules-based international system than a sort of 19th century redux in which three or four superpowers vie to extend the reach of their domestic laws internationally because they can, and because they think that they know best.

Having said that, it is not hard to comprehend why the United States should have formed the view that our present world anti-doping regime could be improved upon in certain particulars.

And, let’s face it, the latest manifestation of extraterritoriality in action - the Rodchenkov Anti-Doping Act - might have been much more pernicious.

Having gained the approval of the US Senate last night, this instrument is now, as I understand it, just one signature away from becoming law.

I am relieved to report, however, that much has changed since the last time I scrutinised a text labelled the Rodchenkov Anti-Doping Act in June 2018. 

Much of what concerned me about that prototype - apart from the overarching issue of extraterritoriality itself - has disappeared from Mark II of the instrument.

Athletes are specifically - and very clearly - excluded from the reach of this year’s model; there also now seems to be no mention of retroactivity.

World Anti-Doping Agency (WADA) President Witold Bańka trained his sights today on the matter of "why this US legislation, which purports to protect athletes and claims jurisdiction overseas, specifically excludes the hugely popular and influential professional and college leagues".

It is certainly interesting that, whereas the old Act defined a "performance-enhancing drug" as "any substance…to be specified by the Secretary of Health and Human Services", the new one uses the term "prohibited substance" and says this "has the meaning given the term in Article 2 of the [UNESCO International Convention Against Doping in Sport]".

The Rodchenkov Act - named after Russian whistleblower Grigory Rodchenkov - has attracted international criticism, including from WADA President Witold Bańka ©CSCE
The Rodchenkov Act - named after Russian whistleblower Grigory Rodchenkov - has attracted international criticism, including from WADA President Witold Bańka ©CSCE

In the long run though, this internationalisation of the terms of reference might be a good thing.

Where I think the WADA President may be onto something is in the implication, if I have read him right, that the new Act’s prime concern is less stopping doping per se, than protecting the purportedly $500 billion (£370 billion/€415 billion) US sports sector.

Another thing that has changed between the old bill and the new is the definition of "major international competition", or "Major International Sport Competition" as it now reads.

Originally, it would have been enough for four or more US athletes and athletes representing at least three other countries to be competing.

Under the new instrument, as I read it, some commercial interest must be involved, in the form either of a sponsor/supporter from an organisation doing business in the US or an entity which has paid for the right to broadcast the competition in the US.

So, in other words, if you orchestrate a doping conspiracy that cheats clean athletes, including Americans, out of their just desserts in a "Major International Sport Competition" which does not happen to be sponsored or supported by any organisation doing business in the US, and for which no-one has actually bought US broadcasting rights (though it might be screened there), you seemingly have nothing to fear under this new legislation.

Given that it seems hard to imagine US law enforcement launching covert helicopter snatch raids against alleged doping masterminds in far-flung corners of different continents, one has to wonder if one of the biggest impacts of the new measure might  be to make conspiring athlete entourage-members more careful about where they travel.

I am not sure I buy the notion that the Act would make it difficult or impossible for WADA to cut deals with whistleblowers fearful of being exposed to possible criminal prosecution: going by precedent, said whistleblower stands more chance of being immortalised in legislation.

The fear is that USADA may have access to privileged information that they will not share with the WADA Intelligence and Investigations unit led by Intelligence and Investigations unit ©Getty Images
The fear is that USADA may have access to privileged information that they will not share with the WADA Intelligence and Investigations unit led by Intelligence and Investigations unit ©Getty Images

I can see how this sort of extraterritorial thrust by a powerful nation brings with it the risk of doping-related decisions being coloured by national and international politics, not that WADA is exactly un-political.

More seriously, I can also see how the US move might tempt other powerful countries to draft copycat laws, reversing the momentum behind international harmonisation that has built up in anti-doping over the past couple of decades.

Interestingly, even the new bill acknowledges that the World Anti-Doping Code has been "an effective tool in the fight against international doping by significantly harmonizing the anti-doping rules of sport and the national laws of those countries which address sport doping through legislation".

I also think that the new Act risks provoking yet frostier relations between WADA and US anti-doping authorities, to the benefit of no-one, except possibly big-time dopers.

The Act instructs the Department of Justice and other bodies to share relevant information with the United States Anti-Doping Agency (USADA).

This promises to put USADA in a privileged and powerful position: will it choose, in its turn, to pass on such information to non-US players, such as Günter Younger’s outstanding Intelligence and Investigations unit at WADA?

If you end up with two competing, rather than complementary, operations, I suppose it may spur both on to greater endeavours.

More likely, I suspect, is that both would find it tougher to piece together cast-iron international cases.

We are not there yet; this Rodchenkov Anti-Doping Act still needs to be signed by US President Donald Trump.

You might think this a formality, but given the surreal state of politics in and around Washington D.C. at present, who could possibly say for sure?