Paris Olympics Signals DOJ Anti-Doping Enforcement in Process

More enforcement for violations of the Rodchenkov Anti-Doping Act is likely on the way following a Department of Justice conviction in February, with two more defendants indicted and the Paris Olympics starting on July 26. Banned substances and usage span a wide range, from anabolic androgenic steroids to asthma inhalers containing medications such as Fenoterol to use of genetically modified cells.

Of course, indictments filed now are unlikely to punish dopers in the short term. But RADA investigations and indictments might deter athletes as they travel to Paris and face stringent testing. Those who seek to undermine the integrity of the Olympics may think twice as they realize the DOJ is investigating test results, along with the World Anti-Doping Agency.

WADA in April confirmed that in 2021, 23 Chinese swimmers tested positive for a banned heart medication before the Tokyo Olympics but received no penalty. Eleven of those swimmers are competing in the 2024 Summer Olympics. This news has some in the US looking for a more aggressive enforcement mechanism, and they may have found one in RADA.

Reports from the international sports community indicate the FBI has opened a criminal probe into those swimmers, most likely relying on RADA for jurisdiction. RADA penalizes individuals or organizations that assist athletes in doping during international competitions. It uses the same list of prohibited substances as the World Anti-Doping Code, which was the culmination of an international effort to harmonize anti-doping systems worldwide.

RADA defines international competition as a competition or series of competitions that are covered by the code and in which at least one American and three non-American athletes compete. RADA claims jurisdiction if the code signatory competition is sponsored by a company doing business in the US or airs in the US. It also carries criminal penalties up to $250,000 and 10 years in prison for individuals or $1 million and forfeiture for organizations.

Restitution is mandatory—meaning athletes, advertisers, or sponsors could benefit as victims. But RADA doesn’t penalize the athletes themselves, and the law doesn’t apply to domestic US sports competitions, such as the NCAA or domestic professional leagues.

RADA’s primarily extraterritorial jurisdiction is controversial, as it seeks to regulate internationally rather than domestically. For example, a Nigerian doctor providing prohibited substances to a Japanese athlete competing in the Paris Olympics could face criminal liability in US courts under RADA, whereas an American doctor supplying an NFL quarterback with the same substances wouldn’t.

The international sports community, including WADA, object to this perceived overreach. Yet others counter that WADA’s enforcement efforts have consistently underperformed, providing context for the necessity of a mechanism such as RADA.

While RADA supplies the DOJ with extraterritorial jurisdiction, prosecutors must still establish venue to proceed in court. The DOJ must show that one component of the alleged offense took place in the US district where it charges the case.

First RADA Prosecution

The first RADA prosecution created a powerful precedent for DOJ moving forward, while sidestepping some of its more controversial applications. According to public filings, Eric Lira of Texas provided prohibited substances imported illegally from Mexico to Nigerian and Swiss athletes qualifying for and intending to compete in the 2020 Tokyo Olympics. He received a sentence of three months’ incarceration and a $16,000 fine.

Prior to his guilty plea last year, Lira moved unsuccessfully to dismiss, making constitutional arguments as to non-delegation, vagueness, and overbreadth.

The district court held that Lira lacked standing to raise a non-delegation clause challenge but found Congress hadn’t delegated its authority by incorporating the code’s list in its definitions. Rather, RADA merely created “freestanding criminal liability for facilitating violations” of the code.

The court further bolstered RADA’s legitimacy by holding that RADA was neither vague nor overbroad in its application. This opinion provides the US government with a solid launchpad for future prosecutions because the DOJ now knows that the more vulnerable aspects of the law passed constitutional muster here.

Enforcement and Deterrence

Three months and $16,000 seems a small payoff for prosecuting a controversial law. Perhaps it hardly seems isn’t worthwhile for the DOJ to pursue these cases going forward if the rewards are so paltry. So why do we anticipate RADA prosecutions will have outsized impact on international sports to come? For love of the Olympics, of course.

The Lira prosecution generated a strong foundation for more expansive future enforcement, at which the DOJ seems primed to leap. In a statement on Lira’s sentence, US Attorney Damian Williams emphasized that anti-doping enforcement is “especially important this year with the upcoming Summer Olympic Games.”

Two other individuals are already now under indictment in New York for violating RADA, and the FBI’s investigation into the Chinese swimmers surely signals a deep dive into the pool of prospective defendants. Now that the DOJ is armed with the Lira precedent and buffeted by bipartisan congressional support, there is no reason to expect the DOJ to lose momentum in its efforts to uphold the integrity of international sports, including the Olympic Games.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kathleen Cooperstein is special counsel at Wiley and represents corporations, directors, and other individuals in government investigations and white collar defense.

Colin J. Cloherty is an associate at Wiley and a former federal prosecutor and experienced trial attorney.

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