Paul Renteurs considers whether new US anti-doping legislation is likely to lead to similar measures in the UK or elsewhere.
Awaiting its final sign-off from the President of the United States, the Rodchenkov Anti-Doping Act 2019 represents a step-change in anti-doping enforcement at an international level. But given the controversy surrounding the new US legislation, does emulation in other jurisdictions, including the UK, remain unlikely?
Section 4 of the new federal legislation, which completed its passage through the US Congress on 24 November 2020, makes it an offence “for any person, other than an athlete, to knowingly carry into effect, or conspire with any other person to carry into effect a scheme in commerce to influence by use of a prohibited substance or prohibited method any major international sports competition”. It is an offence that has extraterritorial reach, limited only by the definition of terms like “major international sports competition”, which requires the involvement of US athletes or US sponsors.
The criminalisation of doping has been considered in the UK before. However, in its Review of Criminalisation of Doping in Sport, published in October 2017, the Department for Digital, Culture, Media and Sport (DCMS) roundly rejected the notion of criminalisation. Following a consultation in which none of the bodies interviewed (including UK Anti-Doping and the World Anti-Doping Agency) supported criminalisation, DCMS concluded that criminalisation would impede the investigations of anti-doping organisations, that the fault element of criminal offences would sit uneasily with the strict liability approach of the anti-doping framework, that criminal anti-doping offences were unlikely to be prosecuted with rigour, and that, in any event, would not be as effective a deterrent as the potentially lengthy sporting bans already in place.
But it is important to recognise that the focus of the Rodchenkov Act is narrower than the mere criminalisation of doping. The anti-doping regime set out in the World Anti-Doping Code is notoriously broad, capturing doping activities at the very highest levels of sport, right through to community level sporting events. The gravamen of the new criminal offence is clearly the larger scale conspiracies of the kind that emerged from the Russian doping scandal. Indeed, individual athletes are explicitly excluded from criminal liability within the Act.
WADA has nevertheless continued to express concerns over the new US legislation, claiming that the extraterritorial reach of the Act risks undermining the harmonisation of world-wide anti-doping efforts and international cooperation. There has been no explicit indication yet that any other jurisdictions are contemplating their own moves towards similar criminalisation. UKAD have, however, indicated that they are working with DCMS on proposals to give UKAD more legal powers to tackle anti-doping. For the time being, it seems unlikely that any such additional powers will include the criminalisation of doping-related activities.