A new front in the U.S. government’s war on global corruption: sports doping (Sports Business Journal)

Jones Day partner and former federal prosecutor Hank Bond Walther writes for Sports Business Journal about a sweeping new law, the Rodchenkov Anti-Doping Act of 2019 (RADA), enacted in December 2020, which arms the U.S. government with the power to criminally prosecute and imprison those who facilitate doping at the Olympics and other international sports competitions. Mr. Walther describes the law's broad reach and severe punishments, but notes that questions remain about how and when the Department of Justice will exercise this new power.

In the waning days of the Trump administration, Congress enacted a sweeping new law that arms the U.S. government with the power to criminally prosecute and imprison those who facilitate doping at the Olympics and other international sports competitions. Its reach is broad and punishment severe. But questions remain about how and when the Department of Justice will exercise this new power.

The Rodchenkov Anti-Doping Act of 2019 (RADA), enacted in December 2020, is named after Dr. Grigory Rodchenkov, the former head of Russia's national drug testing lab, who is alleged to have facilitated a systematic, state-sponsored doping scheme at the direction of the Russian government. Rodchenkov fled Russia and became a whistleblower in the U.S. and the star of the movie Icarus, which tells Rodchenkov's story.

RADA targets doping facilitators: coaches, trainers, laboratory employees, test examiners, athletic federation employees, and agents of private and government-run athletic organizations. It empowers DOJ to prosecute individuals who facilitate doping at any major international sporting competition that includes at least one U.S. athlete and either receives sponsorship or other financial support from an organization doing business in the U.S., or receives compensation from an organization for the right to broadcast the competition in the U.S. The event must also be governed by the World Anti-Doping Code. This would cover the Olympics and most major international sporting events. Punishment for those who violate the law is up to 10 years in prison for each offense.

Historically, international corruption has been a tricky crime to investigate because valuable evidence and witnesses reside overseas, beyond the reach of the best tools in an investigator's arsenal: search warrants, "knock and talk" interviews, and grand jury subpoenas. But over the last decade, DOJ has had to quickly adapt to the increasingly global nature of trade, commerce, and crime, which requires DOJ prosecutors to collect and analyze evidence from overseas and prosecute non-U.S. companies and individuals. For example, DOJ has significantly increased its enforcement of the Foreign Corrupt Practices Act, the U.S. government's most well-known and often used global anti-corruption law, using specialized prosecutors from DOJ's Fraud Section in Washington, D.C., and touted its success prosecuting those who corrupt global business and make it more challenging for compliant U.S. companies to win business. The FBI has created dedicated international corruption squads around the U.S. to investigate FCPA violations. The DOJ's Fraud Section and FBI's international corruption agents work together to collect evidence from various corners of the world and prosecute foreign bribery.

Using specialized prosecutors and agents on FCPA cases allows DOJ to control how and when international corruption investigations are launched, the amount of resources dedicated to the investigations, and when charges should be filed. It also allows prosecutors and agents to develop relationships with their foreign counterparts, which are essential to navigating the tricky diplomatic issues that arise in high-profile corruption investigations, where the bribe recipient could be a senior government official of the country in which the evidence of corruption resides.

DOJ's approach to sports doping cases will be influenced by its experience in FCPA cases and recent high-profile sports corruption investigations. The most notable sports corruption case in recent memory is the investigation and prosecution of corruption in international soccer. In that case, DOJ prosecutors indicted officials from FIFA and other soccer confederations and individuals from media and sports marketing companies allegedly for engaging in "systematic" corruption that included an alleged $150 million in illegal kickbacks. Most of the individuals prosecuted are not U.S. citizens and most of the relevant conduct occurred outside of the U.S. There have also been press reports of DOJ launching other investigations into corruption in international sports, including an investigation into alleged doping at the 2014 Sochi Olympics and an investigation into alleged corruption in connection with recruiting professional athletes from countries in Latin America.

Investigating and prosecuting international sports doping cases will raise complications similar to those raised in FCPA cases, particularly where investigation targets are state-sponsored. For example, with almost limitless jurisdiction, when does the U.S. government's interest in allegations of sports doping rise to the level that justify the time and expense of a federal investigation? And when an investigation is warranted, what component of DOJ will lead the investigation, with the understanding that most relevant evidence and witnesses will likely be located overseas?

Based on DOJ's past enforcement activity, most sports doping investigations will likely be led by DOJ's Fraud Section, which has primary authority to investigate and prosecute FCPA cases, along with U.S. Attorney's Offices, particularly the U.S. Attorney's Office for the Eastern District of New York, which prosecuted the FIFA cases and has reportedly opened other investigations into corruption in international sports. These DOJ components have the most experience collecting evidence overseas, working with law enforcement agencies overseas, and building cases based on foreign conduct that can be prosecuted in U.S. courts. Due to the political sensitivities of opening international sports doping investigations, including concerns that DOJ not be viewed as the world police, DOJ will likely adopt a centralized approach to deciding when to initiate investigations, as it does in FCPA cases.

DOJ will generate sports doping leads from law enforcement sources in the U.S. and abroad, law enforcement partners overseas, and sports organizations and athletes who view sports governing bodies as inept or unwilling to enforce anti-doping rules. But it will need to decide which of those leads to pursue. Where DOJ receives direct evidence of doping, like witness testimony (someone who witnessed the doping or heard an athlete admit to doping) or audio or video recordings (admissions to doping or recordings of the act of doping), it will be difficult for DOJ to turn down the case. But in the majority of cases where evidence is not so clear, DOJ will need to decide which allegations warrant a federal investigation. Factors in making this decision will likely include the scope of the suspected wrongdoing (the doping of one athlete vs. many), evidence of centralized direction (government direction, country-level governing body direction, or even country-level coach direction), and scope of the potential harm (did the doping athlete steal a spot on a team or a medal from a non-doping athlete). Evidence of harm to a U.S. athlete would be even more compelling.

Armed with a broad mandate and the ability to quickly obtain leads from traditional law enforcement sources and interested parties, DOJ is now in a position to build high-profile sports doping cases against non-U.S. citizens around the world.

Reprinted with permission from the June 2, 2021 issue of Sports Business Journal. © 2021 Leaders Group. Further duplication without permission is prohibited. All rights reserved.

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