International Convention Against Doping in Sport: Issues for Congress
Released: 2008-08-11T00:00:00

Background

Doping in sport involves the use of substances or methods that artificially enhance athletic performance. Although doping is not a new phenomenon, policymakers remain concerned about the health effects and ethical implications associated with the continued use of performance-enhancing substances in competitive sports. Anti-doping rules have been in place for various sports and in various countries since at least the 1920s, but many claim that the enforcement of anti-doping rules is fundamentally limited by a lack of uniform standards across sports and across countries. The International Convention Against Doping in Sport, adopted in 2005 by UNESCO, is the most recent response to such criticism. It seeks to harmonize anti-doping commitments for sport. Eighty-seven states are parties, or States Parties , to the Convention as of July 2008.

Treaty Evolution

The field of international anti-doping policy has undergone several rapid transformations in the past decade. The International Olympic Committee (IOC), the umbrella organization for all participants in the Olympic Movement and whose authority includes sport doping regulation, leads the international campaign against sport doping. In 1999, the IOC created the World Anti-Doping Agency (WADA) as the first independent entity to monitor and enforce international anti-doping activities for non-professional sports. One of WADA's first achievements was to develop an international framework for harmonizing anti-doping policies, rules, and regulations among international amateur sport organizations and public authorities, called the World Anti-Doping Code (the Code). As a non-governmental foundation, however, WADA cannot legally bind governments to its policies, including the Code.

In 2003, 191 countries, including the United States, signed the Copenhagen Declaration on Anti-Doping in Sport. The Copenhagen Declaration is a political statement of intent to identify the Code as the "foundation in the world wide fight against doping in sport," ensure that national anti-doping policies conform with the Code, and acknowledge the role of WADA in coordinating and standardizing international anti-doping efforts according to the Code. UNESCO's 2005 International Convention Against Doping in Sport further institutionalizes anti-doping norms among State Parties.

Treaty Commitments

States Parties to the Convention are required to harmonize national laws, regulations, policies, and administrative practices with the "principles" of the Code. This includes restricting availability of prohibited substances, applying WADA's standards for granting therapeutic use exemptions, funding domestic anti-doping test programs, supporting the sanctioning of doping violators, promoting anti-doping research and education, and facilitating international anti-doping cooperation by supporting and funding WADA. Every two years, States Parties are also required to provide the Conference of Parties with status reports on their compliance with the Convention. States Parties are the sole voting members of the Convention's Conference of Parties. WADA is an advisory organization to the Conference of Parties.

U.S. ratification does not require changes to domestic laws nor additional funding contribution levels to WADA and domestic anti-doping programs. Further, the Convention does not apply to U.S. professional sport associations and institutions.

U.S. Policy

The Administration states that ratification of this treaty is a priority. On February 6, 2008, the President transmitted the treaty to the Senate for its advice and consent to ratification. Upon the President's transmittal of the Convention to the Senate for consideration, the White House Press Secretary released a statement justifying the need for ratification, stating that it would "solidify our Nation's place as a leader in the worldwide effort to rid athletics of cheating through chemistry." Many, including Members of Congress, argue that international commitments to anti-doping can help set a positive example for elite and aspiring athletes and help discourage their use of performance-enhancing substances.

A major impetus for U.S. action on ratifying this treaty stems from a concern that lack of ratification would result in a ban from hosting and participating in some international competitions, including future Olympic Games. The IOC requires that governments become a party to the International Convention Against Doping in Sport by January 1, 2009—and failure to do so would result in those countries being barred from participation in future games and could also affect a city's bid for hosting the 2016 Olympics. Chicago is the U.S. Olympic Committee's candidate for the 2016 Games. The IOC plans to announce its selection for the 2016 Olympics in October 2009.

Ratification Status

On August 4, 2008, President Bush signed the instrument of ratification for the treaty. Prior to this date, the Senate Foreign Relations Committee held a hearing on the treaty on May 22, 2008. On June 24, 2008, the committee approved the treaty by voice vote, and the Senate provided its advice and consent to ratification on July 21, 2008 (Senate Congressional Record, Page S6980), subject to an understanding, a declaration, and a condition. The understanding states that the treaty does not obligate the U.S. government to provide funding to WADA. The declaration limits the definition of an athlete for the purposes of doping control to those that the U.S. Anti-Doping Agency (USADA) determines is subject to WADA. The condition states that the text of amendments to the treaty's annexes be transmitted to Congress within 60 days after an amendment occurs.

National Anti-doping Testing

Since its creation in October 2000, the U.S. Anti-Doping Agency (USADA) has implemented and enforced the Code for Olympic sports in the United States. In 2006, USADA reported spending $5.9 million on anti-doping test expenses, primarily for Olympic, Paralympic, and Pan American Sports. Professional sport associations and leagues, including Major League Baseball and the National Football League, do not fall under the jurisdiction of federal regulation and adhere to their own anti-doping policies, testing requirements, and penalties.

Substance Control

The U.S. Office on National Drug Control Policy, the lead policy office for national drug control programs, identifies the elimination of doping in sport as a goal in its 2008 National Drug Control Strategy document. To this end, several national laws proscribe many substances identified by the Code. The Controlled Substances Act, as amended (21 U.S.C. 801 et seq.), prohibits the production, movement, import, distribution, and sale of many of the substances identified in the Code's "List of Prohibited Substances and Methods." Substances on the Code's list that are not subject to the Controlled Substances Act are subject to the Federal Food, Drug, and Cosmetic Act, as amended (21 U.S.C. 301 et seq.), which restricts their use to legitimate medical activities. In addition, the U.S. government commits law enforcement resources to investigate doping cases. In one example, the U.S. Drug Enforcement Administration (DEA), in conjunction with other law enforcement entities, participated in a two-year international steroid trafficking investigation ending in 2007, called Operation Raw Deal, which resulted in 124 arrests and the seizure of 11.4 million steroid dosage units, $6.5 million, 25 vehicles, three boats, and 71 weapons.

Commitments to Anti-doping Research and Education

USADA and U.S. agencies support anti-doping research and education. USADA budgets approximately $2 million per year in support of research related to the deterrence of the use of performance-enhancing drugs in sports, and in 2006, spent approximately $1.3 million in education. Combined, anti-doping research and education programs accounted for approximately 27% of USADA's expenses in that year. Other anti-doping research is funded through the U.S. Department of Health and Human Services, DEA, and U.S. Department of Education.

Multilateral Commitments

The Administration demonstrates its support for international efforts to combat doping in sport through its participation in several multilateral anti-doping venues. As a signatory to the 2003 Copenhagen Declaration on Anti-Doping in Sport, the U.S. government formally recognized the role and importance of WADA in harmonizing international anti-doping standards. The U.S. government is also a member of WADA's Foundation Board and Executive Committee, and Congress regularly appropriates funding to support WADA. In FY2008, Congress appropriated $1.7 million to WADA. The United States also participates in anti-doping activities through the Council of Europe, the Caribbean Community, and the Americas Sports Council, the latter an informal governmental organization designed to combat doping in sport in North, South, and Central America.

Issues for Consideration

Consequences for Professional Sports

The International Convention Against Doping in Sport does not apply to U.S. professional sports. Some athletes of U.S. professional teams, however, may already follow the Code—whose guidelines the Convention embraces—when they participate in international tournaments under the jurisdiction of organizations that already implement the Code. This has already been the case, for example, when National Basketball Association or National Hockey League players participate in the Olympic Games or World Championships. Article 20 of the Convention, however, requires that States Parties encourage professional sports associations and institutions to develop anti-doping principles consistent with the Code.

Effectiveness of Anti-doping Tests

Many observers argue that the value of international anti-doping efforts, including the International Convention Against Doping in Sport, are limited by a lack of effective anti-doping tests that can positively identify prohibited substances. Historically, the search for better methods to detect doping substances has lagged behind the discovery and use of new, undetectable substances. For example, though the use of anabolic steroids was already reportedly "widespread" by the early 1970s, a reliable test method for detecting them was not found until 1974, and they were only added to the IOC's list of prohibited substances in 1976. More recently, anti-doping efforts suffered setbacks related to the use of designer, or synthetic, steroids that have proven difficult to detect. New concern currently surrounds the possibility of "gene doping," whereby genetic therapies may be used to enhance athletic performance.

Athletes' Rights Protection

The International Convention Against Doping in Sport requires States Parties to adhere to the principles of the Code. Some observers, however, question whether the Code sufficiently protects athletes who may be accidentally implicated in a doping violation. These critics argue that the Code imposes excessively stringent punishments, including potentially career-ending suspensions, that offer little distinction between intentional doping and the detection of trace levels of prohibited substances originating from the consumption of contaminated or mislabeled nutritional supplements. Some of these concerns may be addressed in revised version of the Code, which will go into effect January 1, 2009. Further, some question the legitimacy of WADA as an authority in international anti-doping policy, accusing WADA of not being sufficiently transparent in its decision making and resistant to outside scrutiny. Some critics have also questioned WADA procedures for handling drug testing samples and avoiding contamination, as well as for dealing with false positives and other potential testing mistakes.

Cost of Enforcing Anti-doping Regulations

The International Convention Against Doping in Sport commits States Parties to funding WADA and domestic anti-doping tests. Although ratification of the Convention does not impose new costs upon the U.S. government, it would commit the United States to continuing such funding in the future. Some critics argue that the cost of anti-doping activities, especially legal costs of adjudicating doping cases, outweighs the benefits of deterring the use of performance-enhancing substances in sport. USADA's legal expenses, for example, represented more than 15% ($1.8 million) of its total expenses in 2006. Already in 2008, USADA has sought more than $1 million in external financial support from WADA for its legal case against U.S. cyclist Floyd Landis, who was stripped of the 2006 Tour de France title for a doping violation.