Dumb and counter-productive: criminalizing doping in international sports

Congress does some really dumb stuff. And we are purportedly awash in, to use the term of the moment, fake news.

That said, It’s almost hard to know which is more irresponsible, the dumb proposal introduced Tuesday in the U.S. House of Representatives that aims to criminalize doping in international sports, or news accounts of the bill, particularly in the New York Times.

This bill isn’t anything resembling sound public policy. It’s political revenge porn. 

 Grigory Rodchenkov, in ski mask, with lawyer Jim Walden // Helsinki Commission 

Grigory Rodchenkov, in ski mask, with lawyer Jim Walden // Helsinki Commission 

The odds of it becoming law, meanwhile, are slim, and any attempt at fair and balanced reporting ought to have started there. 

Along with a host of other reasonable observations grounded in, you know, fact. Or reasonable conclusion. 

But no.

Agenda-ized reporting — there is not, for instance, even one dissenting voice in the Times piece — advances neither the reader’s interest nor the common good. 

To begin: 

More than 10,000 measures are introduced each year in Congress. Look it up: the number that actually becomes law is on the order of 2 or 3 percent.

How this salient fact is missing from the Times story is, to be honest, astonishing. 

So the first question that therefore has to be asked is elemental: is this measure anything more than a publicity stunt?

Next:

From the measure, and this is purportedly what would afford jurisdiction:

“The United States is the single largest sovereign contributor to the World Anti-Doping Agency (“WADA”), and thus doping fraud in major international competitions also effectively defrauds the United States.”

1. The United States is the largest contributor to WADA per agreed-upon formula. It contributes all of $2.3 million to WADA’s 2018 annual budget of $32.1 million, or 7.3 percent — not even 10 percent. Moreover, as of May 8, the most recent available report online, while WADA has collected $22.1 million toward its 2018 budget, the United States has not yet paid up. 

2. Beyond which, for fiscal year 2019, the U.S. federal budget is $4.407 trillion. 

The math here starts getting a little wacky but: 

Two million equals 0.000002 trillion.

So how, in any real-life instance, would the United States be “defrauded”? We are not talking even pennies when discussing $2.3 million as a slice of the federal pie.

By the by:

If Congress genuinely wants to do something — give WADA more money. Like, way more. That would be constructive. 

Next:

The House action would call for prison terms of up to 10 years and fines of up to $1 million for knowingly making, distributing or using performance-enhancing drugs in global competitions. 

The measure would establish American federal reach over international sports events outside the United States if such an event includes at least three other nations with at least four U.S. athletes taking part or two American companies acting as sponsors.

The bill would also provide for an expansive time window for civil lawsuits.

The measure is entitled the “Rodchenkov Anti-Doping Act of 2018,” and specifically refers to the Russian doping matter. Sirens blaring, isn’t this the clue that suggests this is all about Russia, and retaliation, and not in service of U.S. interests?

From the language of the bill itself: “Moreover, a number of nations, including Germany, Austria, Belgium, Denmark, France, Italy, Sweden, Switzerland and Spain, have embraced criminal sanctions for doping fraud violations.” 

Obvious next question: is sports doping within the United States a specifically articulated violation of federal criminal law?

Answer: no.

Do the states criminalize sports doping? 

No.

To reiterate: what the hell, then, is this all about?

Next:

Has anyone checked the federal prison population numbers? From a high of 219,298 people in federal custody in 2013, the Bureau of Prisons reported 185,117 as of June 14. That’s a 15.6 percent decrease.

Clear trend: the police, prosecution, courts — and Congress — are trying to clear people out, not find new ways to put people in. 

Next:

Would this bill criminalize doping in the NFL, NHL, MLB or NBA?

No.

Isn’t it reasonable to assume that others elsewhere would want the U.S. authorities to clean up their own professional leagues before turning on foreign nationals? 

Who thinks the NFL is steroid-free? 

It’s incredulous for the American authorities to want to exert criminal authority over — hypothetically speaking — Russian race walkers when they’re not going after the offensive line for the Dallas Cowboys.

This measure, indeed, marks an absurd if not outrageous double standard and, frankly, opens a Pandora’s box that the American government almost surely does not want opened. 

A perfect example:

Track star LaShawn Merritt is a great guy. Such a great guy that in 2008 the White House invited him to a formal dinner. He is the 2008 Olympic gold medalist as well as 2009 and 2013 world champion in the men’s 400 meters. 

In 2010, Merritt failed three drug tests after using an over-the-counter penis enlargement product, ExtenZe, that he bought at a 7-Eleven store. He served a 21-month ban.

Technically, he is a “doper.” 

The totally foreseeable consequence of a dumb measure like the one introduced Tuesday is that other countries would introduce similar measures, if not more provocative, aimed directly at American athletes. Merritt and others unequivocally would be at risk simply for appearing in other countries and trying to do what they do, which is seeking to make a living at track and field.

The law of unintended consequences is real.

Particularly in a world in which the American president is held in a certain regard, and going after U.S. athletes can serve as a convenient pretext for the exercise of grievance. Don’t be naive.

“We could have real change if people think they could actually go to jail for this," Rodchenkov's lawyer, Jim Walden, told the Times, adding, "I think it will have a meaningful impact on coaches and athletes if they realize they might not be able to travel outside of their country for fear of being arrested.”

Right back at you, American athletes.

Next observations:

Did federal prosecutors ultimately end up with a conviction in a case against Barry Bonds? No. 

Twelve years — 12 years! — of time and resource, only to ultimately drop the case in 2015 after an obstruction of justice conviction was overturned on appeal. From the Times, when it was finally over: “ … after the Justice Department dropped its case … the question emerged of whether the time and resources federal prosecutors devoted to the investigation were worth it.”

What about Roger Clemens? 

Clemens was acquitted in 2012 of charges he lied to Congress in 2008 when he insisted he never used steroids or human growth hormone during his baseball career. From the Times’ account of the verdict: “… a significant defeat for the government and … will most likely fuel criticism of prosecutors for investing time and money in cases involving athletes accused of doping.”

Lance Armstrong? 

In October 2012, outlining the voluminous evidence against him, the U.S. Anti-Doping Agency said he ran a “massive team doping scheme, more extensive than any previously revealed in professional sports history.” Just months before, in February 2012, the U.S. Attorney’s office in Los Angeles had abruptly dropped a two-year criminal investigation that had looked into whether Armstrong and others had defrauded sponsors via — what we now know as — that doping program.

If ever there was a case that seemingly invited criminal prosecution — imagine the focus on sports doping — it was the Armstrong matter. 

And yet — to underscore — knowing what we all know now, federal prosecutors nonetheless opted not to bring a case. 

This, in a nutshell, is why sports doping is not for American prosecutors nor the courts but for USADA, WADA and the Court of Arbitration for Sport. 

These matters inevitably involve politics, and the court of public opinion. This is why Rodchenkov and his entourage are pushing this matter, and to the organ they have repeatedly turned to for many months, the New York Times.

It’s worth once more revisiting the pages of the Times on the day six-plus years ago that the U.S. Attorney’s office in LA dropped the Armstrong investigation. Because USADA that day issued a statement that holds renewed significance. 

“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws.”