Congress

Dumb and counter-productive: criminalizing doping in international sports

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. 

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. 

A theater-of-the-absurd hearing in Congress

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You know what was missing from Tuesday’s theater-of-the-absurd hearing in Congress on what was billed as “ways to improve and strengthen the international anti-doping system?”

Besides, you know, a big check or a ready-to-implement action plan aimed at improving and strengthening the international anti-doping system?

This hearing had nothing to do with either of those things, really. Nothing at all.

It was an excuse for the fine ladies and gentlemen representing various districts of Congress to take pictures with the likes of Michael Phelps and Adam Nelson — gee, who could have predicted that? — and, more to the point, play to the C-SPAN cameras while bashing Russia and touting truth, justice and the American way.

All the while coming off like the camera-seeking hypocrites that skeptics might suggest they are.

Representative Greg Walden, a Republican from Oregon: “Now you’re going to give us confidence that … U.S. athletes, who play by the rules, can compete against other athletes who play by the rules?”

“Thank you,” a smiling Representative Kathy Castor of Florida, a Democrat, told Travis Tygart, the U.S. Anti-Doping Agency chief executive, “for having the intestinal fortitude to stand up for our athletes and clean competition around the world.”

Oh! So that’s what this was about!

“Our” athletes, not “ways to improve and strengthen the international anti-doping system”?

Who woulda thunk?

There were so many choice moments during this nearly 150-minute paean to America the beautiful before the Oversight and Investigations Subcommittee of the U.S. House of Representatives' Energy and Commerce Committee (whew).

It was so stirring you might well have expected all in attendance to brandish special cereal-box Captain America power shields if, say, Ivan Drago had bolted into Room 2123 of the Rayburn Building to announce that, of course, he was there to break each and every one of them.

Maybe the best moment, however, was when Rep. Frank Pallone Jr., a Democrat from New Jersey, clearly reading from notes prepared for him, misspoke and referred to the “bobsled and skeletal federation.”

It’s “skeleton.”

There’s so much wrong with Congress having hearings on an issue the elected ladies and gentlemen know virtually nothing about and, more to the point, can’t and aren’t going to do anything about.

But Mr. Pallone’s glitch is altogether so revealing.

So, too, the rhetoric, which in an effort to make one point simply proved the other.

“It starts with the athletes. They own the culture of sport,” Tygart asserted.

“And it’s wonderful — it’s sad it took this scandal to mobilize them in the way that it has but it’s wonderful that they’re now mobilizing and realizing how important this right is to them. They also have to have confidence in the system.”

You'd think it was 1984 all over again, and Marty McFly had just parked his DeLorean on Capitol Hill with the cassette tape blasting Bruce Springsteeen's "No Surrender," or something.

Soviets? Russians? Which? Whatever.

Oh. Still us and them. Got it.

But wait, just to put what Tygart said in some context:

Phelps said he didn’t believe he had ever competed internationally in a totally clean event. Nelson, too.

So what is the only reasonable, logical deduction about the so-called “culture of sport”? The brutal truth?

Athletes all over the world cheat, and if they can get away with it, they damn sure will.

Why?

Because, again, logic:

Illicit performance-enhancing drugs work.

Following that to the stark conclusion:

For many athletes in whatever country — and don’t be fooled, the United States has produced some whopping world-class cheaters — the risk-reward ratio makes for an easy tilt.

Indeed, if you were in the Russian Duma, following Tuesday’s spectacle in Congress, why wouldn’t you hold a hearing in which you splashed pictures on a really big screen and howled in laughter at Lance Armstrong, Floyd Landis, Tyler Hamilton, Marion Jones and scads of baseball stars?

In the background, you could work up a digital sampling loop of Mr. Walden from Oregon saying, “U.S. athletes, who play by the rules …”

Oh, again — in Russia the defining difference is, according to the second of the 2016 reports produced by the Canadian law professor Richard McLaren, “institutional control”?

All that does is point up what happens when you have a federal sport ministry, like they do virtually everywhere else, and when you don’t, as is the case in the United States.

Here, we do our cheating red, white and blue capitalist-style:

To quote Ivan Drago's movie wife, the equally awesome Ludmilla, dismissing allegations that her husband could have used steroids: "He is like your Popeye. He eats his spinach every day!"

Just to underscore the raging hypocrisy of Tuesday’s hearing:

Dial the history books back to 2012, a couple of months before USADA tagged Mr. Armstrong.

That summer, a longtime Wisconsin Republican congressman, Representative Jim Sensenbrenner, sent a letter to the White House Office of National Drug Control Policy, the funnel for significant USADA funding, declaring, “USADA’s authority over Armstrong is strained at best.”

Also included were even more laff-out-loud party lines:

“Armstrong, however, has never failed a drug test despite having been tested over 500 times.”

“As attorneys for Armstrong asserted, ‘USADA has created a kangaroo court … ‘ “

“The actions against Armstrong come in the midst of inconsistent treatment against athletes.”

Mr. Sensenbrenner, still a member of Congress, was at the time the chair — he still sits on — the House Judiciary Committee’s subcommittee on crime, terrorism and homeland security. That panel held jurisdiction over ONDCP. Moreover, Mr. Sensenbrenner’s district is home to the then-longtime Armstrong sponsor, Trek Bicycles.

Big picture take-away from Tuesday’s event:

The anti-doping campaign is not easily reduced to sound bites and headlines.

It’s complicated.

Making any sort of real progress is going to take way less rhetoric, far more cooperation and considerably more cash.

This field is simply not susceptible to Tuesday's display of red, white and blue.

Or, more to the point, black and white. It’s a lot of grey.

— Russia bad, Russia bad, Russia bad. Got it, Congress.

Over the weekend, the International Olympic Committee, citing a Feb. 21 WADA meeting, sent out a letter referring to the pair of McLaren’s 2016 reports, from December and July, acknowledging that “in many cases the evidence provided may not be sufficient to bring successful cases.”

So even if Russia bad — it is at the core of the notions of truth, justice and the American way that each and every person is afforded the chance to test any and all evidence the authorities say they hold.

If it’s “not sufficient,” you’re free to go. In this context, to compete.

Same deal for Russians, for Americans, for whoever.

As Dr. Richard Budgett, the IOC’s medical director, put it in the statement he submitted Tuesday to Congress, “In accordance with the principles of individual justice, clean athletes should not be sanctioned or punished for the failures of others.”

— Tygart: “If you continue to have sport overseeing investigations, determining compliance, acting as a global regulator of itself, it’s no different than the current status quo, which is the fox guarding the henhouse.”

Tygart’s argument holds intuitive appeal. Moreover, he knows full well that a good many people don’t understand the anti-doping landscape, laced with science, law, politics and diplomacy, so they rely on him — indisputably an expert — to lay out for them in easy-to-follow terms (fox, henhouse) what might seem most constructive.

Fair enough.

At the same time, it’s far from crystal clear that “sport” ought to go anywhere.

Governance is rooted not just in structure but in culture. Eight years ago, the USOC tried to separate the two, when Stephanie Streeter, who had no significant “sport” experience, was named chief executive. She lasted all of a year, resigning amid a 40-0 no confidence vote from the American national governing bodies — that is, from sport.

Culture matters, a lot, and it’s also a fair argument that the anti-doping machinery ought not take significant dollars from sport while churlishly then banishing any and all goodwill, good faith and experience that comes with those dollars to the penalty box.

That’s called rude and ungrateful, and no system can sustain itself like that for long.

— WADA’s 2017 annual budget is $29.7 million. The U.S. government is due this year to put up $2.155 million, or 7.3 percent.

That’s way more than any other country puts up.

That’s one way to look at it.

Another view:

There are 206 national Olympic committees. The U.S. Congress thinks it’s entitled to hold hearings when the American government is putting up 7 percent toward an entity because — why?

Is any other parliamentary or legislative body in the world holding such hearings? No. Obvious question: why not?

Ethiopia recently criminalized sports doping. The new head of the country's track and field federation is Haile Gebrselassie, the distance running great. A 22-year-old marathon runner, Girmay Birahun, is now facing at least three years in Ethiopian prison after testing positive for the controversial Latvian heart medication meldonium; Maria Sharapova is due to return to the tennis tour in April after her sport ban for the same substance was cut from 24 months to 15. Ethiopia, where there's a lot to discuss in the anti-doping scene, is due to contribute a grand total of $3,239 to WADA in 2017. Not a typo — $3,239, and already has paid $3,085.

Should Ethiopia hold a hearing? If it did, should WADA and the IOC send representatives, like they did Tuesday to Washington?

Does Mr. Birahun own the "culture of sport"? Or do only western athletes, and in particular Americans?

Yet another view:

The 2016 U.S. federal budget was, ballpark, $4 trillion. Yes, $2 million is real money. But, context: $2 million over $4 trillion equals pretty close to nothing. And Congress is yapping for more than two hours?

“We can have all the governance review in the world. Which we welcome and we want. I have been in this business for 20 years. And it’s time for change. It’s time to put investment into this business,”  Rob Koehler, the WADA deputy director general, said in response to a question from Representative Chris Collins, a Republican from New York.

“If I look globally at the amount of money being put into national anti-doping organizations,” Koehler said, “it’s simply insufficient. There’s the crux of the issue.”

He added a moment later, “Until that happens, we’ll never see change.”

— The U.S. Olympic Committee is giving USADA $4.6 million this year, up 24 percent from $3.7 million the year before.

That’s real investment, and the USOC should be applauded for seeking to effect real change.

— Much was made Tuesday of a WADA-commissioned report from a team of so-called “independent observers” who reported after the Rio Games that 4,125 of the 11,470 athletes on hand may have shown up in Brazil without being tested even once in 2016, 1,913 in the 10 sports deemed most at risk for cheating, among them track and field, swimming and cycling.

The problem with these numbers is that they are both entirely accurate and thoroughly misleading.

Would more testing be helpful? Probably.

But as the Armstrong case proves, being tested — or passing a test — proves absolutely nothing.

As Sensenbrenner, and even Armstrong himself, noted:

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Passing a test does not prove an athlete is clean.

This is a core misconception.

Testing is not, repeat not, a failsafe. To believe otherwise is naive in the extreme.

— In a similar spirit, it’s not unreasonable if Phelps — who has never given any indication that he is anything but an honest champion — might have had to get up at 6:05 in the morning for drug testing.

You say otherwise?

Here is the way the “whereabouts” system, as it is called, works.

It would defeat the entire purpose of out-of-competition testing for an athlete to know exactly when drug testers are coming. At the same time, it would be entirely unreasonable for Athlete X to be on call 24/7. So the system strikes a balance.

Via the sort of paperwork that Phelps noted Tuesday he repeatedly had to fill out, Athlete X makes himself or herself available to drug testers one hour a day.

Whatever 60 minutes that is — it’s his or her choice.

So, for instance, if the tester shows up at 6:05, it’s because on that form Phelps, or whoever, put, say, 6 to 7 a.m.

Phelps, referring to his baby son Boomer in responding Tuesday to Collins, the New York Republican, said, “I don’t know what I would — how I would even talk to my son about doping in sports.

“Like, I would hope to never have that conversation. I hope we can get it cleared, cleaned up by then. For me, going through everything I’ve done, that’s probably a question I could get asked. I don’t know how I would answer.”

Easy:

Just because you’re American doesn’t mean you’re good, just because you’re Russian doesn’t make you bad.

Everybody has temptations. Do the right thing, son, the way mom and I raised you.

In the meantime, it’s up to the grown-ups to make sure the people running, say, the swim meet have enough money to do every part of what they do the right way.

Also, next time mom and dad will tell those people in Washington to find someone else to take pictures with, OK? Like Ashton Kutcher. When he was doing the same sort of thing daddy did on Tuesday, Ashton blew a kiss to John McCain.

Less rhetoric, more constructive problem solving

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Last December, in the second of his two World Anti-Doping Agency commissioned (but, to be clear, independent) reports into allegations of doping in Russia, the Canadian law professor Richard McLaren wrote:

“It is time for everyone to step down from their positions and end the accusations against each other. I would urge international sport leadership to take account of what is known and contained in the [two] reports, use the information constructively to work together and correct what is wrong.”

It is through that prism that one ought to view, one, the love note the International Olympic Committee dropped in classic late Friday afternoon PR-style on what it called “the reform of the anti-doping system” and, two, the sanctimonious political grandstanding sure to be coming at next Tuesday’s U.S. House of Representative subcommittee hearing on “ways to improve and strengthen the anti-doping system.”

The U.S. Congress and the IOC would do well to listen to Mr. McLaren’s wise counsel.

But no.

Turning to Congress first:

One, you might think the U.S. House of Representatives might have better things to do than hold hearings about Russian doping.

Because, like, that is the House of Representatives for the United States and the allegations about doping involve another country. That country is called Russia. Russia is not the United States.

Maybe the ladies and gentlemen of the 115th Congress might have more pressing priorities in regard to American life. Maybe, you know, jobs. Then again, it’s February. This is why Sports Illustrated features swimsuit models this time of year. It’s silly season.

Two, everything you need to know about how dumb, what an absolute waste of time and resource this hearing is going to be, can be explained in the headline to the committee news release: “Gold medal lineup: Tuesday hearing on anti-doping brings together all-star panel.” For emphasis, “gold medal lineup” is in capital letters.

Wow! Sports stars come to Washington! Congresspeople! Staffers! Get out your cellphones so you can get your selfies with witness No. 4 on the testimony list — “Mr. Michael Phelps, American swimmer and Olympic gold medalist”! Let's count! 28 Olympic medals in all! 23 gold!

Get back to me, anyone, when you tell me how many of those 28 medals Phelps — and I have been there for every single one of his Olympic races, maybe even written a best-selling book with him — has lost to a Russian swimmer.

Hint: zero.

If Congress wants to investigate some current issues involving doping in American sports, since it can turn to subpoena power and everything, here are some suggestions:

— Lance Armstrong is facing the prospect of civil trial. In February 2012, the U.S. attorney’s office in Los Angeles, headed by Andre Birotte Jr., abruptly dropped, without explanation, a two-year criminal investigation into Armstrong’s activities. That October, the U.S. Anti-Doping Agency made its case against Armstrong, revealing that he had, in fact, been doping for years. In April 2014, Birotte was nominated to become a federal judge in LA, where he now sits. How does that happen?

— What’s really on that Tom Brady cellphone? Even a sitting U.S. judge on a circuit court of appeals in New York, in oral argument nearly a year ago, said it made no sense whatsoever for Brady to have destroyed the phone. And is there any connection to that phone’s destruction and these kinds of stories?

— What about the extent and scope of the use of illicit performance-enhancing substances in the NBA and NFL, among other U.S. major pro leagues? Or do you, congresspeople, really think, oh, linebackers are built and run like that naturally?

Moving along:

Three: it is the height of hypocrisy for the legislative arm of the United States government to be holding a hearing into ways to “improve and strengthen the anti-doping system” when, as this space pointed out recently, the American government contributed not one penny to either of the two Pound or two McLaren reports, which together cost $3.7 million.

Suggestion: you want to improve the anti-doping system?

Easy. Like most problems, it can be made way better by throwing money at it.

WADA’s 2017 budget is $29.7 million. The U.S. government’s dues are expected to total $2.155 million. That’s by far the most of any country anywhere. Britain, Russia, Germany: $815,630 apiece.

The U.S. money has for the past several years been funneled through a White House agency called the Office of National Drug Control Policy.

But lookee here, according to a Feb. 17 New York Times account: the Trump Administration may be poised to move ahead with elimination of nine programs, most “perennial targets for conservatives.” One of the nine: ONDCP.

Now that would be something to investigate.

Particularly since — lookee over here, too — the very same Republican chair of this very same subcommittee, Rep. Tim Murphy of Pennsylvania, according to the Wall Street Journal, co-signed a letter sent Thursday to, whaddya know, ONDCP that said:

“On top of opioid overprescribing and heroin overdoses, we believe the United States is now facing another deadly wave: fentanyl.”

The way these sorts of Capitol Hearings hearings typically work is that the members and staffers stroll in, now with cellphones in hand, with a briefing memorandum.

That’s the background they get.

Meaning that’s usually pretty much the sum and substance of what they know about the topic at hand.

These sorts of memos tend to be a matter of public record. This particular memo runs to eight pages and 47 footnotes.

Of those 47, 33 are news stories, press releases, op-eds, TV shows or the Pound or McLaren reports themselves.

A good chunk of most of the others, including a bunch of the first dozen, are who-we-are and what-we-do-documents (No. 2, WADA mission statement, etc.)

So, again, what is this hearing about?

News stories, press releases, op-eds and TV shows.

Not actual reform.

That, to reiterate, would take the one thing the United States government has only marginally been, and may not now at all be, willing to shell out:

Hard cash.

Which brings us to the IOC.

Same issue.

The IOC took in $5.6 billion over the 2013-16 cycle.

In his letter, circulated widely within Olympic circles but not formally addressed to WADA itself, the IOC director general Christophe de Kepper notes that in the first WADA-commissioned independent report, made public last July, Mr. McLaren “describes a ‘state-sponsored system’ whilst in the final full report in December he described an ‘institutional conspiracy.’ "

The IOC panels now studying what’s what, de Kepper said, “will now have to consider what this change means and which individuals, organizations or government authorities may have been involved.”

Oh, please.

If anyone thinks this trail is going to lead to the cellphone of the Russian president, think again. It’s not going to be found, anyway.

Hmm. Weird coincidences, sometimes. Or not. Whatever.

Mr. de Kepper further notes that "it was admitted" by WADA that "in many cases the evidence provided may not be sufficient to bring successful cases." This is a pointed note aimed at the WADA position of an all-out Russian ban and the IOC stance in favor of individual justice. This space, almost alone in the western press, has argued that of course every single person in the world deserves to have his or her case heard on the basis of the evidence against him or her -- not a group grope.

At any rate, along with the possibility if even probability of soaring legal principle and individual justice, at issue with Mr. de Kepper's position, without doubt, is the IOC seeking advantage in a push-and-pull with WADA over who is going to control what over what comes next.

Mr. McLaren made clear what “this change means." See the second paragraph of this column: all involved should be invoking less rhetoric and seeking more cooperation.

In that spirit, here are some words of wisdom that won’t be in any of those footnotes and that won’t be referenced in that IOC letter.

They were spoken at a WADA executive meeting in September by the WADA director general, Olivier Niggli, and for sure the IOC is aware of them, or ought to be on what lawyers would call the theory of constructive notice, because an IOC vice president, Turkey’s Ugur Erdener, was in the room listening.

This sort of thing isn’t ripped from the headlines. No cellphones. No news releases touting gold-medal lineups or all-star panels.

This is the nitty-gritty of the anti-doping scene.

To make an anti-doping system work takes tons of hard grinding, along with patience, science, leadership and collaboration from sports officials and earnest government officials, and it takes a lot more money than is right now at anyone's disposal, especially WADA. The inescapable fact is the IOC has to put up that coin. Governments come and go; congresspeople pose and prance and dither; the IOC is the only big-picture revenue source with an ongoing interest in making sure international sport is as clean as can be.

That’s going to take checks and balances along with trust, will and faith.

As Mr. McLaren said, that means constructive problem-solving.

“The report,” Niggli said in September, referring to Mr. McLaren’s July document, “had generated a lot of comments and discussions over the past few months.

“WADA should not lose the focus, which was that it was an issue with Russia, and WADA still had to deal with that issue.

“It was a very important issue, and the fact that Russia had been cheating everybody for a number of years needed to be addressed. That was the key focus, and it probably should have been the focus of the discussion over the past months, too.

“Unfortunately, the discussion had been on trying to attack WADA and blame the anti-doping system, and that had not been helpful. The members should bear in mind that WADA did not operate in a vacuum.

“WADA was made up of governments and the Olympic movement, and the Olympic movement had been around the table from Day One,” in the late 1990s, “and had supported the work of WADA and the revised World Anti-Doping Code, and it had been paradoxical to see how the entire anti-doping system had been questioned after the McLaren report.

“…  The system was [not] the issue; the issue was how the system was being practiced by some, and the members should not forget the fact that the system had been cheated.

“One could design a great system but if those applying it were cheating, it was difficult to achieve success.”

Exactly.