[Senate Executive Report 110-11]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-11
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INTERNATIONAL CONVENTION AGAINST
DOPING IN SPORT
_______
June 27, 2008.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-14; EC 6772]
The Committee on Foreign Relations, to which was referred
the International Convention Against Doping in Sport, adopted
on October 19, 2005 (the ``Convention'') (Treaty Doc. 110-14;
EC 6772), having considered the same, reports favorably thereon
with one understanding, one declaration, and one condition as
indicated in the resolution of advice and consent, and
recommends that the Senate give its advice and consent to
ratification thereof, as set forth in this report and the
accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Convention............................................3
IV. Entry Into Force................................................11
V. Implementing Legislation........................................11
VI. Committee Action................................................11
VII. Committee Recommendation and Comments...........................11
VIII.Text of Resolution of Advice and Consent to Ratification........13
IX. Annex I.--2008 Prohibited List and Annex I to the Convention (EC
6772)...........................................................15
X. Annex II.--Transcript of May 22, 2008 Hearing...................25
I. Purpose
The purpose of the Convention, as provided for in Article
1, is to ``promote the prevention of and the fight against
doping in sport, with a view to its elimination.'' The
Convention seeks to achieve this purpose by enhancing
international cooperation in the fight against doping in sport
and by building on the international community's efforts to
develop common standards for equitable doping control and
enforcement. The Convention will help to protect the integrity
and spirit of sport by supporting efforts to ensure a fair and
doping-free environment for athletes.
II. Background
In 1998, a number of prohibited medical substances were
found by police in a raid during the Tour de France. The
scandal led to a major reappraisal of the role of public
authorities in the prevention of doping in sport and
highlighted the need for international cooperation on this
issue. In February 1999, the International Olympic Committee
convened a World Conference on Doping in Sport, which was
attended by both sports federations and governments, to
determine what might be done to address the problem through
international cooperation. The result was the establishment of
an independent organization known as the World Anti-Doping
Agency (WADA) in November 1999.\1\ The United States played a
leading role in the establishment of WADA, which is
headquartered in Montreal, and has long been one of its
strongest supporters.\2\
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\1\The Lausanne Declaration on Doping in Sport was adopted by the
World Conference on Doping in Sport on February 4, 1999. The
Declaration states that ``[a]n independent International Anti-Doping
Agency shall be established so as to be fully operational [by] 2000.
This institution will have as its mandate, notably, to coordinate the
various programmes necessary to realize the objectives that shall be
defined jointly by all the parties concerned.''
\2\WADA's total budget in 2008 was approximately $25 million. The
United States contribution in 2008 was $1.7 million.
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WADA is a unique hybrid organization that is governed and
funded equally by both the Olympic Movement and governments.
From the beginning, the United States has served as a
governmental representative on the WADA Foundation Board.
Pursuant to an Executive Order, the Director of the Office of
National Drug Control Policy (ONDCP) serves as the
representative of the United States on the board.\3\ The
organization's basic purpose is to promote harmonized,
coordinated, and effective anti-doping programs at the
international and national level with regard to the detection,
deterrence, and prevention of doping in international sport.
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\3\The Director of ONDCP is authorized to serve as the U.S.
representative on the WADA board pursuant to Executive Order 13165
(2000).
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One of WADA's most significant achievements has been the
development of a uniform set of anti-doping rules in the World
Anti-Doping Code, which was adopted by the WADA Foundation
Board in March 2003. The Code provides the framework for
harmonized anti-doping policies, rules, and regulations for
sports federations and governments. The Code works in
conjunction with four ``International Standards'' aimed at
harmonizing the practice of national anti-doping organizations
in several key areas: Standards for testing, standards for
accredited laboratories that conduct testing on doping-control
samples, a list of prohibited substances and methods, and a
list of therapeutic use exemptions. The harmonization of
standards in these areas is intended to address the problems
that previously arose from uneven and uncoordinated anti-doping
efforts around the world.
National anti-doping organizations and sports federations
are expected to be the main implementers of doping controls
that are consistent with the Code, including the testing and
sanctioning of athletes that commit anti-doping rule
violations. In the United States, the United States Anti-Doping
Agency (USADA), headquartered in Colorado Springs, is the
national anti-doping agency. USADA is an independent anti-
doping agency for Olympic-related sport in the United States
and was originally created as the result of recommendations
made by the United States Olympic Committee's Select Task Force
on Externalization to uphold the Olympic ideal of fair play,
and to represent the interests of Olympic Games, Pan American
Games, and Paralympic athletes. USADA works closely with WADA
to implement the Code effectively with respect to athletes in
the U.S. Olympic Movement.
WADA's role is to monitor anti-doping activities worldwide
to ensure implementation of and compliance with the Code in
cooperation with national anti-doping organizations, such as
USADA. For example, WADA receives a certificate of analysis
every time a WADA-accredited laboratory analyzes a doping-
control sample collected from an athlete that shows the
presence of a prohibited substance or method. As a result, WADA
is able to follow up with the relevant national anti-doping
organization to ensure that it is following the established
rules and procedures set forth in the Code.
In March 2003, 51 nations, including the United States,
signed the Copenhagen Declaration on Anti-Doping in Sport. The
Declaration, among other things, endorsed the Code and
supported the negotiation of a Convention on Doping in Sport.
This was the beginning of the process that led to the
Convention, which was negotiated under the auspices of the
United Nations Educational, Scientific, and Cultural
Organization (UNESCO) with significant United States Government
involvement and support. The Convention builds on the
international community's efforts to develop a common approach
and standards for equitable doping control and enforcement by
providing a common instrument that countries can join to
demonstrate their commitment to the Code as the basis for
national anti-doping control and policy. The Convention goes
beyond the Code and would harmonize and coordinate the
activities of governments in a variety of areas that are
essential to combating doping in sport, such as scientific and
medical research, prevention and education, and doping-control
rules regarding specific doping substances and methods. To
date, 85 countries have ratified the Convention, including
Australia, Canada, China, and almost every country in Europe.
The Convention is not structured to secure changes to
national law or regulation, but rather to secure commitments by
States Parties to promote international collaboration,
research, and education, and to support the principles of the
Code and WADA's role in implementing the Code. What follows is
a discussion of several key provisions of the Convention.
III. Summary of Convention
A. MAJOR PROVISIONS
A detailed article-by-article analysis of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-14. A summary of key provisions is set forth
below.
Commitment to the World Anti-Doping Code and to the World Anti-Doping
Agency
The Convention obligates States Parties to ``adopt
appropriate measures'' that are ``consistent with the
principles of the Code'' and ``foster international cooperation
between States Parties and leading organizations in the fight
against doping in sport, in particular with [WADA].'' See
Article 3. In addition, the Convention provides that States
Parties ``commit themselves to the principles of the Code'' as
the basis for measures undertaken to implement the Convention.
See Articles 4 and 5.
The Convention also reaffirms WADA's role in implementing
the Code and further provides WADA with an important role in
the context of the Convention. For example, Article 14 states
that ``States Parties undertake to support the important
mission of the World Anti-Doping Agency in the international
fight against doping''; Article 16 provides for international
cooperation with WADA in doping control efforts; Article 29
provides that WADA ``shall be invited as an advisory
organization to the Conference of the Parties'' of the
Convention; and Article 32(2) provides that at the request of
the parties, ``the Director-General of UNESCO shall use to the
fullest extent possible the services of the World Anti-Doping
Agency. . . .''
Although it is somewhat unusual for a nongovernmental
organization to have a formal role in assisting in the
implementation of a treaty, it is not without precedent. For
example, the 1972 Convention Concerning the Protection of the
World Cultural and Natural Heritage, to which the United States
is a party, similarly provides a role for nongovernmental
organizations in the implementation of the treaty. Moreover, in
this particular circumstance, using WADA appears to be a cost-
effective and efficient option. In response to the committee's
questions, the Office of National Drug Control Policy explained
that ``given WADA's technical expertise and the unique nature
of doping, it would be advantageous to utilize the existing
resources available from WADA'' rather than provide
``additional funding to UNESCO . . . to hire additional staff
and develop the capacity and expertise to provide anti-doping
services.'' Furthermore, in accordance with Article 32(2),
WADA's role is defined by the Conference of Parties. If States
Parties have any concerns regarding WADA's assistance, they
have the option to substantially limit or terminate WADA's role
in implementing the Convention.
Flexibility in Implementation
A number of countries in Europe, such as France and Italy,
address doping in sport through direct government regulation,
which in some cases means legislation that requires compliance
by the sports federations or individual athletes with anti-
doping rules in those countries. In the United States, and in
other countries such as Canada, Australia, and Japan, doping in
sport is approached from a different perspective: instead of
directly regulating anti-doping in sports, the sports
federations are provided with incentives to self-regulate. The
Convention recognizes these different approaches in Article 5,
which states that the measures used to implement the Convention
``may include legislation, regulation, policies or
administrative practices.''
Prohibited Substances and Methods
Article 8 supports Anti-Doping efforts by requiring states
to take certain measures to restrict the availability of
``Prohibited Substances and Methods'' in order to restrict
their use in sports by athletes unless the use is based on a
``Therapeutic Use Exemption.'' The ``Prohibited Substances and
Methods'' and the ``Therapeutic Use Exemptions'' that are
referred to in this Article are listed in the two Annexes to
the Convention and originate from the Code. The administration
notes in its submittal letter that this Article can be
implemented by the United States without changing existing U.S.
law or policy.\4\ The Prohibited Substances and Methods are
mainly controlled substances whose production, movement,
importation, distribution, and sale are controlled by the
Controlled Substances Act.\5\ A number of the noncontrolled
substances on the Prohibited List are subject to provisions of
the Food, Drug, and Cosmetic Act\6\ that restrict their use to
legitimate medical activities and prohibits trafficking of such
substances. In addition, U.S. states have parallel laws that
address the trafficking, possession, and use of many of the
substances on the Prohibited List. Finally, an increasing
number of U.S. states have implemented student drug testing
programs and education initiatives to prevent the use of doping
substances on the Prohibited List.
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\4\See Treaty Doc. 110-14 at X.
\5\21 U.S.C. Sec. 801 et seq.
\6\21 U.S.C. Sec. 301 et seq.
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Athlete Support Personnel
Article 9 requires States Parties to take measures, or to
encourage sports organizations and anti-doping organizations to
take anti-doping measures, aimed at athlete support personnel.
Athlete support personnel are defined in Article 2 to be a
``coach, trainer, manager, agent, team staff, official, medical
or paramedical personnel working with or treating athletes
participating in or preparing for sports competition.'' The
United States satisfies this requirement through its support of
USADA, which has policies and testing protocols that are
consistent with the Code and which provide for specific
sanctions and penalties for athlete support personnel if and
when they violate the Code.
Nutritional Supplements
Article 10 requires States Parties to encourage producers
and distributors of nutritional supplements to establish best
practices in the marketing and distribution of nutritional
supplements, including by providing information regarding their
analytic composition. The administration notes in its submittal
letter that this Article can be implemented by the United
States without changing existing U.S. law or policy.\7\ The
Dietary Supplement Health Education Act of 1994\8\ requires
that dietary supplement manufacturers ensure that a dietary
supplement is safe before it is marketed, and that its product
label information is truthful and not misleading. The law sets
forth post-marketing requirements that include monitoring
safety, such as adverse event reporting. In June 2007, the Food
and Drug Administration established regulations requiring good
manufacturing practices for dietary supplements that are
designed to ensure that such supplements are produced in a
quality manner, do not contain contaminants or impurities, and
are accurately labeled.
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\7\See Treaty Doc. 110-14 at XI.
\8\Pub. L. 103-417.
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Facilitating Doping Controls for Sports Competitions
Article 12 obligates States Parties to facilitate the anti-
doping-control activities of sports organizations and anti-
doping organizations, such as the testing of athletes with no-
advance notice by duly authorized doping-control teams and
access to accredited doping laboratories for the purpose of
doping-control analysis. The United States would meet these
obligations through its support of cooperation among anti-
doping organizations, such as the Association of National Anti-
Doping Organizations and WADA's Central American Regional Anti-
Doping Organization, and the United States' support of USADA,
which works to facilitate the doping-control activities
contemplated in this Article.
International Cooperation
Article 16 obligates States Parties to take certain steps
to facilitate international cooperation in anti-doping testing
and control. Parties are only obligated to take steps under
this Article to the extent that such steps are ``appropriate
and in accordance with domestic law and procedures.'' No
changes in existing U.S. law or policy would be necessary to
meet the obligations that would arise under this Article. The
United States currently facilitates such international
cooperation through its support of the activities of USADA,
which actively engages in anti-doping testing cooperation with
appropriate anti-doping organizations in other countries that
are compliant with the Code.
Education and Training
Article 19 of the Convention obligates States Parties,
within their means, to support, devise, or implement education
and training programs on anti-doping. The United States
currently funds a number of programs that would satisfy this
requirement. For example, the United States supports two
school-based steroid education programs: the ATLAS (Adolescents
Training and Learning to Avoid Nutrition Alternatives) program
and the ATHENA (Athletes Targeting Healthy Exercise and
Nutrition Alternatives) program. In addition, the United States
supports anti-doping education through its support of USADA,
which traditionally directs more than ten percent of its annual
budget toward education programs targeting schoolchildren,
emerging elite athletes, coaches, and parents. The United
States also provides federal grant funds to operate student
drug testing programs and education initiatives, such as
activities undertaken by the Department of Education's Office
of Safe and Drug-Free Schools.
Voluntary Fund
Article 17 establishes a Voluntary Fund, which can be used
to assist States Parties with the implementation of their
obligations under the Convention and for the functioning costs
of the Convention, which includes the operational costs of the
Secretariat. See Articles 18 and 32.
Research
Many of the substances and methods used in doping can have
a damaging impact on the health of athletes. As the executive
branch explained in response to the committee's questions,
``[t]he dangers of anabolic steroids for nonmedical use, for
example, are becoming increasingly well known. As science
evolves and athletes turn to substances such as human growth
hormone and gene doping, the health consequences are not only
potentially grave, but often not fully known.'' In order to
understand the health risks involved and in order to be aware
of the next generation of doping substances and methods, it is
crucial that scientific research in this field be encouraged,
conducted and shared.
Articles 24-27 focus on research that is relevant to the
fight against doping in sport. Article 24 requires States
Parties ``within their means'' to encourage and promote anti-
doping research in cooperation with sports and other relevant
organizations on (a) prevention, detection methods, behavioral
and social aspects, and the health consequences of doping; (b)
ways and means of devising scientifically based physiological
and psychological training programs; and (c) the use of
emerging substances and methods arising from scientific
developments. Article 25 requires, among other things, that
States Parties ensure that such research complies with
internationally recognized ethical practices and is undertaken
with adequate precautions to prevent the results of the
research from being used for doping purposes. Article 26
requires States Parties to share, where appropriate and subject
to national and international law, the results of their
research with other Parties and with WADA. Article 27 requires
States Parties to encourage members of the scientific and
medical communities to carry out sport science research in
accordance with the principles of the Code and to encourage
sports organizations and athlete support personnel within their
jurisdiction to implement such research.
The United States currently supports and promotes research
on anti-doping consistent with the requirements laid out in
these articles. For example, the United States already funds
significant research related to anti-doping both directly and
through USADA. The United States also supports anti-doping
research activities through the National Institute on Drug
Abuse (NIDA), which is one of the National Institutes of Health
(NIH), and the Drug Enforcement Administration. The United
States has also, through the Office of National Drug Control
Policy, promoted the sharing of research results by
coordinating research collaboration between WADA's Science and
Research Development and officials from NIH, NIDA, and the Food
and Drug Administration. Finally, the United States encourages
and directly supports sports science research by organizations
such as the American College of Sports Medicine, the American
Medical Association, and other medical and public health
groups.
Monitoring
The monitoring mechanism for this Convention is minimal:
States Parties are obligated to report to the Conference of
Parties every two years on the measures taken by them to
implement the Convention. The Conference of the Parties can
expand the monitoring mechanism, but the Convention provides
that ``[a]ny monitoring mechanism or measure that goes beyond
[the biennial report] shall be funded through the Voluntary
Fund. . . .'' As a result, it is unlikely that the monitoring
mechanism will be expanded substantially beyond the reporting
requirement described above.
B. ANNEXES AND APPENDICES
The Convention consists of its main text, two annexes (The
Prohibited List International Standards and the Therapeutic Use
Exemptions), and three appendices (the World Anti-Doping Code,
the International Standards for Laboratories, and International
Standards for Testing).
The two Annexes, the Prohibited List International
Standards and the Therapeutic Use Exemptions, are technical
documents that are an integral part of the Convention. There
are two possible procedures through which the Annexes can be
amended. States Parties may propose amendments through the
standard amendment procedure set forth in Article 33 or WADA
can, under certain circumstances, propose amendments to the
Annexes through a fast-track amendment procedure as set forth
in Article 34.
Fast-Track Procedure for Amending Annexes
In accordance with Article 34, if WADA modifies its own
Prohibited List or the Standards for Granting Therapeutic Use
Exemptions, it may inform the Director-General of UNESCO of the
changes adopted by WADA and the Director-General would then
circulate to States Parties the changes as proposed amendments
to the relevant Annexes to the Convention. States Parties have
45 days within which to object to the adoption of such an
amendment. Unless two-thirds of the States Parties express
their objection, the proposed amendment that was circulated by
the Director-General, will be deemed adopted or ``approved'' by
the Conference of Parties and the States Parties will be so
notified by the Director-General. States Parties then have
another 45 days to opt out of the amendment, by notifying the
Director-General that they don't accept the particular
amendment. The amendment will enter into force at the end of
the second 45-day period for every State Party that has not
opted out. Although States Parties have only 90 days to decide
whether to accept an amendment to the annexes under this
procedure, the United States (along with other States that are
members of WADA) will have significantly more notice of
potential amendments to the annexes before they are formally
proposed as amendments in accordance with Article 34.
The executive branch has explained to the committee that
the process utilized by WADA when amending the Prohibited List
or the Standards for Granting Therapeutic Use Exemptions is a
lengthy one in which the United States plays an active role. In
response to questions from the Committee, the U.S.
Representative on the WADA Foundation Board described the
process as follows:
The Prohibited List is reviewed and updated annually by WADA
through a year-long consultative process involving stakeholder
feedback and input from groups of international scientific and
anti-doping experts. A Prohibited List Working Group is
specifically tasked with recommending changes to WADA's
Executive Committee and facilitating stakeholder input. A
representative from the United States chairs the seven-member
committee. In addition, a second member of the group is from
the U.S. Food and Drug Administration. The United States has
one of 5 government votes on the Executive Committee to approve
any changes to the List.
The International Standards for Granting Therapeutics (ISTUE)
is [structured] to ensure that the process of granting
Therapeutic Use Exemptions (a process to allow athletes to take
medicines on WADA's Prohibited List to treat an athlete's
illness or medical condition) is harmonized across sports and
countries. The ISTUE came into force in January 2004.
Concurrent to the revision of the Code, WADA launched a process
in 2006 for updating the ISTUE to build upon the experience
gained by WADA and its stakeholders and to improve the
protocols and processes.
The [last] review process for updating the ISTUE involved
three formal rounds of consultation. Based on stakeholder
feedback and consultations with the legal and scientific
committees, a draft was circulated in 2007. After a period of
public comment and a series of meetings a second draft was
released. Subsequently, WADA's Executive Committee unanimously
voted to approve the revised ISTUE at its May 2008 meeting. The
United States, as a member of the Executive Committee, voted to
approve the ISTUE. Comments from USADA regarding the technical
revisions were accepted by WADA and incorporated into the
revised ISTUE.
Since the Convention entered into force on February 1,
2007, Annex I has been amended. Most recently, on January 1,
2008, a new Annex I entered into force, which was transmitted
to the Senate through an Executive Communication (EC 6772) and
is to be considered in place of the now outdated Annex I
included in Treaty Document 110-14. See Annex I of this Report.
Annex II has not yet been amended; however, it is expected that
the recently adopted revision by WADA of its International
Standards for Granting Therapeutic Use Exemptions discussed
above, will be accepted by States Parties and ultimately enter
into force as a revised Annex II to the Convention on January
1, 2009.
Appendices
The Appendices are not an integral part of the Convention,
but because of the unique relationship that this Convention has
with the Code and the two standards that are included in the
Appendices, it was deemed important to include them for
informational purposes. By including the Code in the Appendix,
it provides the context for, and clarifies the meaning of,
provisions such as Article 4, which commit States Parties to
the ``principles of the Code'' as the basis for measures
undertaken to implement the Convention. Moreover, the Code can
be changed by WADA, without the consent of the States Parties,
and thus by defining the Code in Article 2 for purposes of the
Convention as the Code that was adopted on March 5, 2003, it is
clear that any subsequent changes to the Code by WADA have no
affect on States Parties' rights or obligations under the
Convention.
C. SCOPE
The scope of the Convention's application is effectively
established through two key definitions of terms used
throughout the Convention: the definition of ``athlete'' and
the definition of ``sports organization.'' Both terms are
defined in Article 2 and are, according to the chapeau of
Article 2, ``to be understood within the context of the World
Anti-Doping Code.''
Athletes
Article 2(4) contains two definitions of ``athlete.'' The
first is for doping-control purposes and states as follows:
``Athlete means . . . any person who participates in sport at
the international or national level as defined by each national
anti-doping organization and accepted by States Parties and any
additional person who participates in a sport or event at a
lower level accepted by States Parties.'' For the United
States, USADA is the national anti-doping organization and
thus, the term ``athlete'' for purposes of doping control in
the United States means any athlete who is determined by USADA
to be subject to or to have accepted the World Anti-Doping
Code. This definition would not, for example, generally include
athletes participating in U.S. professional leagues, unless the
athlete in question has accepted the Code.
The second, broader definition of athlete contained in
Article 2(4) of the Convention is for purposes of education and
training programs and includes ``any person who participates in
sport under the authority of a sports organization.'' According
to the Office of National Drug Control Policy, this second
definition of athlete can include athletes of all ages and was
drafted with the intent of ``educat[ing] a larger number of
participants [in sports] on the dangers of doping before they .
. . reach the point where they may be competing nationally or
internationally.''
Sports Organizations
The term ``Sports Organization'' is defined in Article
2(20) as ``any organization that serves as the ruling body for
an event for one or several sports.'' An organization is a
ruling body for an event if so determined by the relevant
national Olympic Committee or the International Olympic
Committee for each sport on the national and international
level, respectively. The Committee has been assured by the
Executive that this understanding is universally recognized and
accepted by States and the international sport community.
Moreover, Sports Organizations referred to in the Convention
are ones that have accepted the Code. A Sports Organization
indicates its acceptance of the Code through a formal written
procedure to WADA and every sports organization that has done
so, is listed on WADA's Web site at www.wada-ama.org.
D. RELATIONSHIP TO OTHER INTERNATIONAL INSTRUMENTS
Article 6 of the Convention clarifies the relationship
between this Convention and other international instruments to
which States might be a party. The first sentence of Article 6
is akin to a savings clause and provides that ``[t]his
Convention shall not alter the rights and obligations of States
Parties which arise from other agreements previously concluded
and consistent with the object and purpose of this
Convention.'' As a result, States Parties to this Convention
that are also a party to, for example, the Council of Europe's
Anti-Doping Convention, may apply the earlier concluded Council
of Europe Convention as amongst themselves, even if doing so
would be a violation of this Convention. The second sentence of
Article 6, however, limits the effect of the first sentence, by
providing that States Parties can apply another instrument
amongst themselves only insofar as doing so does not affect the
enjoyment by third parties of their rights or the performance
of their obligations under this Convention. Thus, as explained
to the Committee by the Executive Branch, ``Article 6 would
permit States that are a party to both this Convention and the
Council of Europe's Anti-Doping Convention to apply the Council
of Europe's Convention among themselves, but only insofar as
that application does not affect the other States Parties'
enjoyment of their rights and obligations under the UNESCO
Convention.''
IV. Entry Into Force
In accordance with Article 38, the Convention will enter
into force for the United States on the first day of the month
following the expiration of one month after the date on which
the United States deposits its instrument of ratification with
the Director-General of UNESCO.
V. Implementing Legislation
As noted in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-14, U.S. ratification of the Convention would not
require any changes to U.S. law, because the Convention's
provisions are consistent with current U.S. law and practice,
including the Controlled Substances Act, the Dietary Health
Education Act of 1994, and the Federal Food, Drug, and Cosmetic
Act. As a result, no additional implementing legislation will
be necessary, should the United States become a party to the
Convention.
VI. Committee Action
The committee held a public hearing on the Convention on
May 22, 2008. Testimony was received by Mr. Scott M. Burns,
Deputy Director of the Office of National Drug Control Policy;
Ms. Joan Donoghue, Principal Deputy Legal Adviser at the
Department of State; Mr. Jair K. Lynch, former U.S. Olympic
athlete and Board Member on the U.S. Olympic Committee; and Mr.
Travis Tygart, Executive Director of the U.S. Anti-Doping
Agency. See Annex II of this Report.
On June 24, 2008, the committee considered the Convention,
and ordered it favorably reported by voice vote, with a quorum
present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations views the purpose of the
Convention as crucial in protecting the integrity and spirit of
sport by supporting efforts to ensure a fair and doping-free
environment for athletes. U.S. ratification is also important
for a practical reason: The International Olympic Committee has
stated that it will only award the Olympic Games to countries
that are party to the Convention. The city of Chicago is among
the finalists to host the 2016 Summer Olympics, but it would
likely not be awarded the Games if the Convention is not
ratified by the United States. Accordingly, the Committee urges
the Senate to act promptly to give advice and consent to
ratification of the Convention, as set forth in this report and
the accompanying resolution of advice and consent. The
committee has taken note, however, of certain issues raised by
the Convention, which are addressed below.
A. TACIT AMENDMENT PROCEDURE
As discussed previously, Article 34 of the Convention
provides a fast-track procedure by which the Annexes to the
Convention can be amended and, unless two-thirds of the States
Parties to the Convention express their objection to a
particular amendment proposed pursuant to this procedure, that
amendment will enter into force for a State Party even absent
its explicit consent if that State Party has not notified the
Director-General that it does not accept the amendment at
issue.
The committee recognizes that such a tacit amendment
procedure for the Annexes is sensible given that it is reserved
for amendments that have already been subject to the
modification process in place at WADA, even prior to their
arrival as formal proposals to amend the Annexes to the
Convention. Moreover, the committee recognizes that this fast-
track amendment procedure makes it possible for the Convention
to evolve in step with scientific developments that have
occurred and are being implemented by WADA through the Code.
Thus, in the committee's view, an amendment to the Annexes done
in accordance with Article 34 does not require the advice and
consent of the Senate. Nevertheless, the committee has included
a condition in the resolution of advice and consent to
ratification, which requires the Secretary of State to transmit
to this committee, and to the Committee on the Judiciary, the
text of an amendment to either Annex done in accordance with
Article 34 no later than 60 days after its entry into force. An
amendment done in accordance with Article 33 would, of course,
require the advice and consent of the Senate.
B. RESOLUTION
The committee has included in the resolution of advice and
consent an understanding, a declaration, and a condition.
Understanding
The proposed understanding makes clear that although the
Convention obligates States Parties to support WADA's mission
and the principal of equal funding for WADA as between the
Olympic Movement and governments, the Convention does not
commit the United States to make a financial contribution to
WADA.
Declaration
The proposed declaration clarifies that the United States
definition of ``athlete'' for purposes of doping control in the
Convention, is any athlete determined by USADA to be subject to
or to have accepted the Code. This declaration is consistent
with the chapeau of Article 2, which states that every
definition is ``to be understood within the context of the
World Anti-Doping Code'' and will be included in the U.S.
instrument of ratification in order to alert other States
Parties to the definition used by the United States.
Condition
As noted in relation to the tacit amendment procedure in
Article 34, the Committee has included a reporting requirement
regarding amendments to the Annexes of the Convention that are
concluded through the Article 34 procedure.
VIII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING, A
DECLARATION, AND A CONDITION
The Senate advises and consents to the ratification of the
International Convention Against Doping in Sport (the
``Convention''), adopted by the United Nations Educational,
Scientific, and Cultural Organization on October 19, 2005
(Treaty Doc. 110-14; EC 6772), subject to the understanding of
section 2, the declaration of section 3, and the condition of
section 4.
SECTION. 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the United States instrument of ratification:
It is the understanding of the United States of
America that nothing in this Convention obligates the
United States to provide funding to the World Anti-
Doping Agency.
SECTION. 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration, which shall be included
in the United States instrument of ratification:
Pursuant to Article 2(4), which defines ``Athlete''
for purposes of doping control as ``any person who
participates in sport at the international or national
level as defined by each national anti-doping
organization and accepted by States Parties and any
additional person who participates in a sport or event
at a lower level accepted by States Parties'', the
United States of America declares that ``Athlete'' for
purposes of doping control means any athlete determined
by the U.S. Anti-Doping Agency to be subject to or to
have accepted the World Anti-Doping Code.
SECTION. 4. CONDITION
The advice and consent of the Senate under section 1 is
subject to the following condition:
Not later than 60 days after an amendment to either
of the Annexes that was concluded in accordance with
the specific amendment procedure in Article 34 enters
into force for the United States, the Secretary of
State shall transmit the text of the amended Annex to
the Committee on Foreign Relations and the Committee on
the Judiciary of the Senate.
IX. Annex I.--2008 Prohibited List and Annex I to the Convention (EC
6772)
X. Annex II.--Transcript of May 22, 2008 Hearing
INTERNATIONAL CONVENTION AGAINST DOPING IN SPORT (TREATY DOC. 110-14)
----------
THURSDAY, MAY 22, 2008
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:22 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Joseph R.
Biden, Jr. (chairman of the committee) presiding.
Present: Senators Biden and Lugar.
OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR.,
U.S. SENATOR FROM DELAWARE
The Chairman. The committee will come to order. Let me
begin by welcoming our witnesses. Today the committee examines
whether the United States should join the International
Convention Against Doping in Sport. Throughout history, as our
witnesses clearly know, athletes have always tried to improve
their competitive advantage in their performance on the playing
field, and there's always been a history of some use of
improper substances to be able to do that.
In the 20th century, governments even got into the act,
such as when East Germany tried to build an Olympic powerhouse
by the use of doping. As many as 2,000 former East German
athletes are now suffering, we are told, from significant
health problems associated with steroid use, including heart
disease and other diseases.
Today we continue to struggle with the problem of doping in
sports. American athletes in both Olympic and professional
sports, as well as college and high school at all levels, are
not immune from the temptation to abuse steroids and other
substances and the pressure, particularly at the very highest
level, to be able to maintain your slot on the team and your
job has increased exponentially when you look across the locker
room and see somebody who has put on 20 extra pounds of muscle
over the summer and you say: Well, wait a minute; it's my job
or he or she gets the job.
It's a giant problem. Profound medical advances have
resulted in the development of a wide variety of drugs, some of
which can be abused, that artificially advance muscle growth
and rejuvenation on a level previously unimagined. A quick
review of the World Anti-Doping Agency's list of prohibited
substances indicates the breadth of performance-enhancing
drugs: hormones, steroids, oxygen enhancements, beta blockers,
even gene doping.
While many of these drugs can be used for legitimate
purposes, they can also be abused by athletes seeking to
achieve a competitive advantage. I just call it flat cheating.
It's a simple, basic proposition: It's cheating. For the last
two decades, the United States and the world community have
responded to these developments with an increasing commitment
to curb doping in sport. Along with others, with many others,
I've been closely involved in this effort. In 1990, I was the
author, as chairman of the Judiciary Committee, of the first
Anabolic Steroid Control Act, which added anabolic steroids to
Schedule 3 of the Controlled Substances Act, and began to list
a host of substances falling within that definition.
In 2004 I updated the law--I proposed legislation to update
the law--and added THG as well as Andro and other chemical
cousins to the list of anabolic steroids. The reason for these
changes
was simple. These substances not only pose great health risks,
but they threaten the fundamental integrity of sport and send
the wrong message to a kid that cheating--cheating to get
ahead--is acceptable, no matter what the cost, as long as the
ends had great promise.
So I've worked hard, along with Senator Lugar and many
others in the Senate, to ban these substances, educate our
youth and professional athletes, and reduce this wrongful
behavior in American sport.
In the late 1990s, the international community came
together and established the World Anti-Doping Agency to
promote and coordinate the fight against doping in
international sports competition. The United States at that
time played a leading role in the establishment of the Agency
and has long been one of its strongest supporters. One of the
Agency's most significant achievements was the development of a
uniform set of antidoping rules in what is known as the World
Anti-Doping Code.
The International Convention Against Doping in Sport, which
commits parties to the principles of the Code and reaffirms the
World Anti-Doping Agency's role in implementing the Code, is
the next logical step in promoting harmonized, coordinated, and
effective antidoping programs in international sport
competition. On the eve of the Beijing Olympics, it's timely
for the Senate to consider this issue of doping in sports.
When I was leaving I told my wife that I was doing--we were
having this hearing, and she said: You know, you do that in
Judiciary; why are you doing this in the Foreign Relations
Committee? How is that? Because most people would wonder why
we, in the Foreign Relations Committee, are dealing with this.
But the fact of the matter is that we're expediting the
convention here for a very practical reason. The International
Olympic Committee has made clear that nations seeking to host
Olympic games must be parties to this convention and we are
not. The city of Chicago is bidding to host the 2016 Summer
Olympics. So we are acting promptly on this convention, just a
few months after it was submitted to the Senate, at the request
of our colleagues not only from the administration, but from
Illinois and the mayor of the city of Chicago, Mayor Daley, and
the Olympic Committee.
We have two panels today. By the way, I might add, I have
an ulterior motive for wanting to bring this--give this issue
as much attention as we can. I believe that we should have the
same code for all sports in America. It should be as tough as
the Olympic standards, and it is not, whether it's professional
sports or amateur sports. I think it should be a national
standard as well.
I've been a broken record on that. That's not why we're
here, but I want full disclosure. I'm going to do all I can in
my capacity in that other committee to try to get us to the
point where this becomes the national standard as well as our
standard when we compete in international competition.
We have two very distinguished panels today. First we're
going to hear from the Honorable Scott M. Burns and Ms. Joan
Donoghue. Mr. Burns has served as Deputy Director of the Office
of National Drug Control Policy since December 2007 and is
doing a good job, I might add, in my view. He has also worked
extensively for the World Anti-Doping Agency, including as U.S.
representative to the Agency in 2003 and as the regional
representative for the Americas on the Agency's Executive
Committee.
Ms. Donoghue is the Principal Deputy Legal Adviser to the
Department of State. She previously served as the Deputy
General Counsel for the Department of the Treasury.
On the second panel we'll have Mr. Lynch and Mr. Tygart. Am
I pronouncing ``Tygart'' correctly?
Mr. Tygart. Yes, sir.
The Chairman. If not, you can call me ``Bidden.''
Mr. Lynch is a board member of the United States Olympic
Committee and a two-time United States Olympic gymnast, and he
has won the silver medal on the parallel bars, which I still
cannot fathom anyone being able to do. I thought myself an
athlete in high school and college, but I don't know how--you
have to explain to me a little bit about how the hell you ever
got into that, because it looks to me to be absolutely beyond
physical--anyway, Mr. Lynch won a silver medal for the parallel
bars in the Summer Olympics held in Atlanta in 1996.
Mr. Tygart is the chief executive officer of the United
States Anti-Doping Agency and has been with the Agency since
2002 and served as the director of legal affairs before
becoming the counsel general in 2004.
Before we move to our witnesses, I yield to Chairman Lugar.
STATEMENT OF HON. RICHARD G. LUGAR, U.S. SENATOR FROM INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman.
Really, emboldened by your mention of Mayor Daley and Chicago,
I would just mention that I'm celebrating with Mayor Ballard of
Indianapolis the award of the Superbowl to Indianapolis in
2012, and your thought that this ought to cover all sports is
one that I cherish likewise.
I appreciated particularly your leadership as chairman of
the Judiciary Committee, because the legislation and the
hearings you had really were significant. But there is a good
reason for our having this hearing here today, because of the
action that you and the committee are trying to expedite.
Therefore, I join you in welcoming our witnesses to this
hearing on the International Convention Against Doping in
Sport. The convention was negotiated with significant United
States participation and thus far 85 nations have ratified it.
The Foreign Relations Committee has been called on to evaluate
this treaty and the impact of United States ratification on
international and American antidoping efforts.
The United States is passionate about athletics at every
level, from the most elite professionals to our sons and
daughters playing on school teams. We're hopeful that athletic
competition is fair and, even more importantly, safe.
Performance-enhancing drugs undercut fair competition and
introduce a destructive element into endeavors that should be
promoting good health and physical fitness. Athletes who use
steroids or other drugs are placing their own health at serious
risk and setting a damaging example for the millions of younger
athletes who look up to them.
For many young people participation in sports is a
fundamental element of personal expression, social status, and
self-worth. In some cases sports are a pathway to college,
another means of personal advancement. In this context, the
temptation of drugs that offer the prospect of improved
performance can be very powerful, particularly when the safety
and efficacy of that temptation seems to be validated by elite
athletes.
The Office of National Drug Control Policy found in 2006
that 1.6 percent--1.6 percent of eighth grade students, and 2.7
percent of 12th grade students reported using steroids at least
once.
The convention before us is not a panacea for that problem.
Rather, it seeks to improve international coordination in
preventing and responding to doping in sports generally. It
requires commitments by parties to collaborate on research,
education, and rules related to antidoping efforts.
The executive branch has determined that U.S. laws and
practice are already consistent with the convention. Thus, no
further implementing legislation would be necessary for the
United States to become a party.
I look forward to this opportunity to study the convention
in greater depth today, to hear the testimony of our witnesses
about why it is needed and how it might be beneficial to United
States interests.
I thank you again for calling this hearing in such a timely
way.
The Chairman. Thank you very much.
Mr. Burns, the floor is yours.
STATEMENT OF HON. SCOTT M. BURNS, DEPUTY DIRECTOR, OFFICE OF
NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE
PRESIDENT, WASHINGTON, DC
Mr. Burns. Chairman Biden, Ranking Member Lugar, it's my
pleasure to appear before you this morning, before the Senate
Committee on Foreign Relations, and testify in strong support
of the International Convention Against Doping in Sport. As you
know, the convention was transmitted by the President on
February 6 of this year and advances the interests of the
United States in the fight against drug use and doping in
sport.
The convention develops a common approach and harmonizes,
as you have outlined, standard for equitable antidoping
measures in international competition. The convention is not
structured to change national law or regulation, but will
continue commitments by parties to promote international
collaboration on antidoping research, education, and drug
testing protocols.
I join the President in urging timely ratification of the
instrument. Doping poses significant risks to the health and
well-being of athletes, as you well know, Mr. Chairman, as
evidenced by your leadership on the steroid issue for many,
many yours. The use of performance-enhancing drugs undermines
the ideal of sport and devalues and debases the rewards of
competition. The health and ethical consequences of doping
particularly impact young people, who often emulate the
behaviors of elite athletes.
Governments from around the globe and the international
Olympic movement recognize the importance of the international
cooperation needed, as you have pointed out, by creating the
World Anti-Doping Agency, or WADA, in 1999. It is the
international independent organization designed to promote,
coordinate, and monitor the fight against doping in sport in
all of its forms. The agency is composed and funded equally by
the Olympic movement and the governments of the world.
The United States was a driving force in the inception of
development of WADA and has increasingly played, I believe, a
leadership role in the agency's governance. The most important
achievement of WADA has been the drafting, acceptance, and
implementation of a consistent set of antidoping rules for
Olympic sport organization and international competitions, the
World Anti-Doping Code.
Prior to the creation of the code, there was myriad
inconsistent, and at times contradictory, doping rules across
nations and across sport. The code's development was the result
of an unprecedented collaboration between governments and the
Olympic movement and culminated when the document entered into
force on January 1, 2004. To date more than 570 sport
organizations have become signatories and adopted the code.
Governments, including the United States, however, possess
no legal ability to become signatories to a nongovernmental
private legal instrument such as the code. Therefore, and
consistent with the ideals upon which WADA was established,
governments agreed to include a provision in the code whereby
their antidoping commitment would be demonstrated by the
signing of a nonbinding political declaration, to be followed
by the development of an international convention. Thus the
reason for us being here.
Ratification of the convention, Mr. Chairman, as you've
stated, is a priority. While the convention does not alter the
manner in which sports operate and are regulated in the United
States, ratification does send a clear message domestically and
abroad about our commitment to eliminate doping in sport. The
instrument was drafted with the clear recognition and included
specific language to ensure that regulation of sport remains
within the purview of national law and national policy. The
convention respects and retains the various ways in which
nations regulate sport.
No provision in the convention requires any change to
existing United States law, regulation, or policy. Moreover, no
implementing legislation would be required and upon
ratification of the convention the United States would be
compliant as a party.
Ratification of the convention will not impact the manner
in which the United States professional sports are regulated.
Consistent with its purpose, the definitions contained in the
convention create obligations solely with respect to those
individuals and entities engaged in internationally regulated
competition.
Ratification of the convention will not impact existing
antidoping policies in the United States. The United States
Anti-Doping Agency, or USADA, will remain the independent
nongovernmental organization responsible for administering the
antidoping program for Olympic and Pan American sport in the
United States. Ratifying the convention will not change the
relationship between the United States Government and USADA.
As you have pointed out, in addition to this policy
rationale, practical reasons exist to support the convention.
The International Olympic Committee has mandated that in order
to host the Olympic Games a nation must have ratified the
UNESCO Anti-Doping Convention. As you are aware, the city of
Chicago is one of the seven cities to have submitted an
official bid to host the 2016 Summer Olympics. Each of the
other bidding nations has already ratified the convention and
ratification of the convention is a critical step toward
bringing the Olympic Games back to the United States.
Mr. Chairman, it's been an honor to have represented the
United States Government on WADA's governing executive
committee and foundation board since 2004. I'm pleased to
report that the efforts of the United States have resulted in a
dramatic and positive change in international perception of our
commitment to combatting drugs in sport. Congress deserves a
significant amount of credit for its leadership, commitment,
and vision. Congress has been invaluable as a partner in
raising the awareness of this public health issue, providing
the resources to the Office of National Drug Control Policy and
the United States Anti-Doping Agency to pursue the issue
vigorously and amending the Controlled Substances Act to ensure
that the law evolves with science and technology.
The efforts to combat doping in the United States truly
have been a team effort. While much progress has been made,
additional actions are necessary. The next step in our shared
fight to protect the public health and integrity of sport is
the ratification of the Convention Against Doping in Sport.
Becoming a party to this instrument is in our national
interest. It will further demonstrate our commitment to working
in the international arena to reduce the incidence of drug use
in sport.
I strongly urge the committee to give prompt and favorable
consideration to the convention, and I thank you.
[The prepared statement of Mr. Burns follows:]
Prepared Statement of Hon. Scott M. Burns, Deputy Director, Office of
National Drug Control Policy, Executive Office of the President,
Washington, DC
i. introduction
Chairman Biden, Ranking Member Lugar, members of the committee, it
is my pleasure to appear this morning before the Senate Committee on
Foreign Relations and testify in strong support of the International
Convention Against Doping in Sport (Treaty Doc. 110-4). The Convention
transmitted by President Bush to the Senate on February 6, 2008,
advances the interests of the United States in the fight against drug
use and doping in sport. The Convention develops a common approach and
harmonizes standards for equitable antidoping controls in international
competition. The Convention is not structured to change national law or
regulation, but will continue commitments by parties to promote
international collaboration on antidoping research, education, and drug
testing protocols. On behalf of John Walters, Director, National Drug
Control Policy, I join the President in urging the timely ratification
of this instrument.
ii. discussion
a. Doping in Sport
Doping is the use of a substance or method that artificially
enhances athletic performance. Doping often poses a significant risk to
the health and well-being of athletes. The use of performance enhancing
drugs undermines the ideals of sport and devalues and debases the
rewards of competition. The health and ethical consequences of doping
particularly impact young people who often emulate the behaviors of
elite athletes. As a result, the President highlighted the importance
athletics play in our society and the pernicious nature of doping in
his 2004 State of the Union Address. He observed that doping is
dangerous and sends the wrong message to children that performance is
more important than character.
Neither the United States, nor any other single nation, can
adequately confront and tackle the multifaceted challenges posed by
doping alone. Sport continues to grow increasingly international in
nature. Athletes and coaches compete and train internationally and are
impacted by global trends. Recent high-profile steroid trafficking
prosecutions in the United States confirm that the trafficking of
performance-enhancing drugs is international in scope as well. The
source of the steroids and the drug trafficking organizations involved
in these prosecutions demonstrates the international nature of this
problem. As a result, the 2008 National Drug Control Strategy
identified international cooperation and partnership as a core element
of the United States efforts in combating doping in sport.
b. The creation of an International Body to Combat Doping
Governments from around the globe and the International Olympic
Movement recognized the importance of international cooperation by
creating the World Anti-Doping Agency (WADA) in 1999. WADA is the
international, independent organization created to promote, coordinate,
and monitor the fight against doping in sport in all its forms. The
agency is composed and funded equally by the Olympic Movement and
governments of the world. Its key activities include scientific
research, education, out-of-competition drug testing, and development
of antidoping capacities.
The United States was a driving force in the conception and
development of WADA. Per Executive Orders 13165 (August 9, 2000) and
13286 (February 28, 2003), the Office of National Drug Control Policy
(ONDCP) serves as the United States representative to WADA. The United
States has increasingly played a leadership role in the agency's
governance. The United States has served as one of 18 nations on the
agency's governing Foundation Board since WADA's inception. In 2004,
the United States was elected to serve as one of five nations worldwide
on WADA's executive committee. Moreover, a number of United States
officials serve on various expert committees and technical working
groups.
c. The World Anti-Doping Code
The immediate challenge WADA faced following its creation was the
myriad inconsistent and contradictory doping rules across nations and
sport. Indeed, prior to 2000, antidoping rules and regulations, to the
extent they even existed, commonly varied or contradicted each other.
Often these rules were inconsistently applied and enforced. Thus,
depending on the sport or nationality of an athlete, the antidoping
framework varied.
The most important achievement of WADA has been the drafting,
acceptance, and implementation of a consistent set of antidoping
rules--the World Anti-Doping Code (Code). The Code is the core document
that provides the basis for harmonized antidoping rules and regulations
within Olympic sport organizations and among governments. The Code also
addresses the problems that previously arose from the disjointed and
uncoordinated efforts in areas such as testing, adjudications,
sanctions, antidoping prevention and education.
The Code's development was the result of an unprecedented
collaboration between governments and the Olympic Movement. The
drafting and consultations lasted nearly 2 years. In fact, the United
States and more than 80 governments actively participated in the World
Conference on Doping in Copenhagen, Denmark in 2003 during which the
Code was approved. The process culminated when the document entered
into force on January 1, 2004.
To date, more than 570 sport organizations have become signatories
and adopted the Code. All the sport entities in the United States
Olympic Movement, including United States Olympic Committee (USOC) and
the United States Anti-Doping Agency (USADA), have signed the Code.
Governments, including the United States, however, possess no legal
ability to become signatories to a nongovernmental, private legal
instrument such as the Code.
Therefore, consistent with the ideals upon which WADA was
established, governments agreed to include a provision in the Code
whereby their commitment to the Code would be demonstrated by the
signing of a nonbinding political declaration. Thereafter, governments
would pursue the development of an international antidoping convention
to be implemented as appropriate to the constitutional and regulatory
contexts of each government. The purpose of the Convention was to
enable governments to align their domestic legislation and policies, to
the extent possible, with the Code in order to harmonize sport rules
and public law in the fight against doping in sport.
Remarkably, 192 nations have signed the political statement (the
so-called ``Copenhagen Declaration on Anti-Doping in Sport'')
expressing support for the principles contained in the Code.
Governments subsequently concluded that the United Nations Education,
Scientific, and Cultural Organization (UNESCO)--the U.N. agency with
technical competence and responsibility in the areas of social and
human science in addition to physical education and sport--was the most
appropriate international organization to host such a convention. In
January 2004, drafting of the international convention under the
auspices of UNESCO was commenced.
d. The Drafting and Development of the International Convention
The United States Government played an active leadership role
throughout the development of the Convention. The drafting process
afforded the United States with an extremely fair opportunity to shape
the contents and format of the instrument. Our government was
represented by senior officials from the Department of State and ONDCP
at each of the drafting sessions and intergovernmental meetings. In
addition, the United States was selected to serve on UNESCO's expert
drafting group and chaired UNESCO's International Conference of
Ministers and Senior Officials Responsible for Physical Education and
Sport during which senior governmental officials from nearly 100
nations discussed the guiding principles of the Convention.
During the drafting process, the State Department and ONDCP
regularly conferred with senior officials from a wide range of Federal
agencies with technical experience on issues contained in the
Convention, such as the Departments of Justice, Education, and Health
and Human Services. ONDCP was also in close contact with USADA and the
USOC regarding the Convention's development. Moreover, in April 2004, a
consultation letter, along with a copy of the draft Convention, was
sent by ONDCP to nearly 100 potentially impacted nonfederal
stakeholders. Not a single objection to a substantive provision of the
Convention was received. The United States was pleased to support the
Convention's unanimous adoption by the UNESCO General Assembly in
October 2005.
Consistent with UNESCO protocol, 30 countries were required to
ratify the document prior to it entering into legal force. The
requisite number was reached in February 2007. At present, 83 nations
have become parties to the Convention.
Ratification of the Convention remains an administration priority.
As highlighted in the 2008 National Drug Control Strategy, while the
Convention does not alter the manner in which sports operate and are
regulated in the United States, ratification sends a clear message
domestically and abroad about our commitment to eliminate doping in
sport. To that end, we vigorously pursued the Department of State-led
process to widely circulate the Convention for analysis on the
document's potential impact, any changes in law or policy that may be
required by ratification, as well as any unintended consequences that
may result following ratification by the United States.
The vetting process was complete in January 2008, at which time
Secretary of State Rice forwarded the Convention to the President. On
February 6, 2008, the President transmitted the Convention to the
Senate for its advice and consent to ratification. That same day, the
White House issued a public statement noting the administration's
ongoing commitment to fighting the use of steroids and other
performance-enhancing drugs in sport and urging speedy ratification of
the Convention.
While I would be pleased to discuss any particular provision of the
Convention in greater detail, I would like to highlight a number of its
most fundamental concepts.
e. Noteworthy Aspects of the Convention
i. No change to U.S. law, regulation, or policy required
The purpose of the Convention was to harmonize the international
antidoping framework in order to promote public health and protect the
integrity of sport. The instrument was drafted with a clear
recognition, and included specific language, to ensure that regulation
of sport remains within the purview of national law and policy. The
Convention is careful to place obligations on particular governments
only ``where appropriate'' in order to respect and retain the various
ways in which nations regulate sport. The Convention's goal is to
secure international commitments and collaboration on antidoping
subjects such as drug-related research, education, and testing. The
Code is included as an appendix to the Convention for information
purposes, but does not create any binding legal obligations on
governments.
No provisions in the Convention require any change to existing
United States law, regulation, or policy. Moreover, no implementing
legislation would be required. Upon ratification of the Convention, the
United States would be compliant with our obligations as a party.
The Convention provides for minimum standards in order for nations
to combat drug use in sport. While the Convention will not require
changes in the United States, many other nations with less advanced and
sophisticated antidoping regimes will be required to enact and amend
laws and regulations to become compliant with the Convention. An
important result of the Convention, therefore, will be a global
framework that provides more equitable treatment of U.S. athletes
competing internationally. United States athletes will compete on a
more level playing field as athletes from around the world become
subject to more consistent and stringent doping rules.
ii. Professional sport leagues not within the Convention's
scope
Ratification of the Convention will not impact the manner in which
U.S. professional sports are regulated or athletes participating in
professional leagues are tested or sanctioned. Consistent with its
purpose, the definitions contained in the Convention create obligations
solely with respect to those individuals and entities engaged in
internationally regulated competition. We intend to apply the
Convention accordingly.
By its explicit terms, the Convention defines which ``athletes''
fall under the instrument's jurisdiction. For the purposes of doping
control, ``athlete'' is defined as a person who participates in sport
at the international or national level as defined by the relevant
national antidoping organization. Therefore, only athletes under
USADA's testing program would be impacted by the Convention's doping
control provisions. USADA has no authority to include athletes
competing in non-Olympic professional sports without the consent and
authorization of the professional player.
Further, the Convention only governs the antidoping frameworks of
``sport organizations'' which are specifically defined as the ``ruling
body'' for a particular event or sport. According to that term of art,
leagues such as the National Football League, National Basketball
League, National Hockey League and Major League Baseball would not be
within the Convention's scope. This limitation was intentionally
included in the Convention.
iii. No change in the relationship between the Government
and USADA or USOC
Ratification of the Convention will not impact existing antidoping
policies in the United States. At present, pursuant to 21 U.S.C. 2001,
USADA is the independent, nongovernmental organization responsible for
administering the antidoping program for Olympic and Pan American sport
in the United States. USADA is a signatory to the Code and fully
compliant with its provisions. Ratifying this Convention will not
change the relationship between the United States Government and USADA.
To the contrary, the Convention explicitly allows governments to
utilize the efforts of antidoping organization (such as USADA) or other
sports authorities and organizations (such as the USOC) to meet any
obligations under the Convention. This will avoid any duplication of
effort by the Government and private stakeholders. In fact, the
Convention will likely have the positive impact of serving to further
synergize and coordinate the drug prevention, education, and antidoping
research efforts.
iv. Financing and compliance monitoring mechanisms
Two administrative aspects of the Convention are worthy of note.
First, the Convention does not impose any new financial obligations on
the United States. Any costs incurred by UNESCO in the administration
of the Convention will be derived from that organization's existing
operational budget. Further, we do not anticipate any additional costs
to the United States Government as a result of ratification.
Second, compliance by parties to the Convention is monitored via a
self-reporting mechanism. Nations provide a report to the Convention's
Conference of Parties every 2 years. The United States has already
concluded that we are in compliance with all obligations in the
Convention. In any event, the Convention does not set forth any formal
action or sanctions that may be taken by UNESCO or the Convention's
Conference of Parties as a result of the compliance reports.
v. Practical considerations favoring ratification
In addition to the aforementioned policy rationale, practical
reasons exist to support the Convention. Pursuant to the terms of the
Code, only representatives from sport organizations that are Code
compliant and from national governments that have ratified the
Convention by 2009 may continue to serve in WADA leadership positions.
Consequently, failure to ratify the Convention jeopardizes our
leadership standing internationally.
The United States currently serves on WADA's governing executive
committee and foundation board. By virtue of these posts, the United
States has been at the forefront in shaping global antidoping policy
and ensuring that our national interests are represented by this
international agency. We have achieved a number of results that have
positively impacted our efforts to reduce drug use in sport and ensure
that our athletes compete on a level playing field in international
competitions.
For example, we have fought vigorously to ensure global balance
exists in WADA's governance. We were pleased that the Honorable John
Fahey of Australia was elected the new President of WADA beginning in
January 2008. Mr. Fahey, the former Australian Finance Minister, has
consistently and publicly recognized that the contributions the United
States Government and our nongovernmental stakeholders have made in the
global fight against doping. Mr. Fahey brings a sound understanding and
appreciation of the manner in which sport is regulated in our country.
In addition, our leadership positions have enabled us to
successfully resist calls from some entities to weaken international
drug control efforts by removing controlled illicit substances such as
marijuana and MDMA from WADA's list of prohibited substances. Finally,
the United States, consistent with the direction received from the
appropriations committees, has also worked tirelessly to ensure that
WADA utilized its funds in a prudent manner and increases to its
operating budget are minimal.
In addition, the International Olympic Committee (IOC) has mandated
that in order to host the Olympic Games, a nation must have ratified
the UNESCO Anti-Doping Convention and the country's National Olympic
Committee and national anti-doping organization must be Code compliant.
As you are aware, the city of Chicago is one of seven cities to have
submitted an official bid to the IOC to host the 2016 Summer Olympics.
Each of the other bidding nations (Azerbaijan, Brazil, Czech Republic,
Japan, Qatar, and Spain) has already ratified the Convention. As
President Bush stated in January 2008 during his visit with the Chicago
2016 Bid Committee and USOC leaders, the country strongly supports
Chicago's bid to bring the Olympic Games to the United States.
Ratification of the Convention will be a positive step toward achieving
that goal.
iii. conclusion
Mr. Chairman, it has been an honor to have represented the United
State Government on the WADA executive committee and foundation board
since 2004. I am pleased to report that the efforts of our Government
have resulted in a dramatic and positive change in international
perception of our commitment to combating drugs in sport. Previously,
some in the international community were skeptical of the intensity of
our resolve to confront this issue. In recent years, however, we have
gained the respect of governments worldwide and the International
Olympic Movement based on an unwavering commitment to address doping in
sport.
Our government has assumed an unprecedented leadership role in WADA
and in the international community. The President has highlighted the
dangers of doping on several high profile occasions. USADA, with the
enthusiastic support and partnership of the USOC, has developed into
one of the world's most respected national antidoping doping agencies.
Federal law enforcement agencies have successfully conducted criminal
investigations into the illegal trafficking of steroids and other
performance enhancing controlled substances. Operation Gear Grinder,
Raw Deal, and BALCO are now part of the U.S. vernacular and symbolize
our collective determination to combat steroid abuse and protect young
people from the deleterious effects of these drugs.
Congress also deserves a significant amount of credit for its
leadership, commitment, and vision. Congress has been an invaluable
partner in raising the awareness of this public health issue, providing
the resources to ONDCP and USADA to pursue the issue vigorously, and
amending the Controlled Substance Act to ensure the law evolves with
science and technology.
The efforts to combat doping in the United States truly have been a
team effort. While much progress has been made, additional actions are
necessary. The next step in our shared fight to protect the public
health and integrity of sport is the ratification of the Convention
Against Doping in Sport. Becoming a party to this instrument is in the
U.S. national interest. It will further demonstrate our commitment to
working in the international arena to reduce the incidence of drug use
in sport. It will also enable the United States to continue to play a
defining role within WADA and permit Chicago and the USOC the ability
pursue its outstanding bid to bring the Summer Olympics back to our
Nation for the first time since Atlanta hosted the Games in 1996.
I urge the committee to take favorable action with respect to the
Convention as soon as practical. ONDCP greatly appreciates the
committee's interest in this topic. I would be pleased to answer any
questions you may have.
The Chairman. Thank you very much.
Ms. Donoghue.
STATEMENT OF JOAN DONOGHUE, PRINCIPAL DEPUTY LEGAL ADVISER,
DEPARTMENT OF STATE, WASHINGTON, DC
Ms. Donoghue. Thank you, Mr. Chairman. Deputy Director
Burns has given you a good summary of the reasons for the
widespread support for this convention in the United States. I
won't repeat those, but on behalf of the State Department and
as the mother of a high school athlete and someone with family
ties to Chicago, I am pleased to join with Mr. Burns in
encouraging the Senate's prompt provision of advice and consent
to ratification of this convention, and we thank you for
expediting your consideration of the convention.
I'll just briefly touch on a couple of legal and
institutional dimensions of the convention that raise issues
that I know have been of interest to the committee in its
consideration of treaties over the years.
First, as Mr. Burns indicated, this convention is entirely
consistent with U.S. laws and regulations and, as you
indicated, Senator Lugar, it doesn't require any new
legislation, and it specifically recognizes our federalism
concerns, and addresses those appropriately. Also and
unusually, it expressly recognizes that the parties may
implement their responsibilities under the convention through
nongovernmental entities. That's the way we do it now, that's
the way we want to continue doing it, and the convention won't
require us to change that, which is important.
Next, the convention maintains the present structure and
the administration of the World Anti-Doping Association. It
doesn't interfere with that in any way. It ensures that WADA
will maintain its ability to equitably address and oversee
international antidoping issues. UNESCO will not have a role in
WADA's structure or functions and the convention will not
change the relationship between WADA and the individual
national antidoping agencies.
Finally, funding: The convention places no additional
funding requirements on the United States. It doesn't change
WADA's budgetary processes and there will be no need for
additional appropriations as a consequence of ratification.
Similarly, the ratification will not result in any mandatory
increase in UNESCO's funding. Any required UNESCO resources
will come out of a voluntary fund.
As a result of these considerations and those you heard
about from Mr. Burns, ratification will demonstrate the
continuing partnership between the executive branch and the
Congress in the fight against drug use in international sport,
and therefore the State Department and the administration
strongly support the timely ratification of the convention.
Thank you.
[The prepared statement of Ms. Donoghue follows:]
Prepared Statement OF Hon. Joan Donoghue, Principal Deputy Legal
Adviser, U.S. Department of State, Washington, DC
introduction
Mr. Chairman and members of the committee, thank you for the
opportunity to appear along with my colleague from the White House
Office of National Drug Control Policy to testify in support of the
International Convention against Doping in Sport. The Department of
State and the administration strongly support the Senate's prompt
provision of advice and consent to ratification of this Convention.
As a tool in protecting the integrity of international sport, this
Convention will advance international cooperation on doping-control
efforts and will foster a fair and doping-free environment for
athletes. The United States has been an active participant in and
supporter of the development of this Convention from its inception.
background
This Convention builds on the longstanding efforts of the
international community to jointly develop an equitable approach to
antidoping control and enforcement measures in international
competition. These efforts resulted in the creation of the World Anti-
Doping Agency (``WADA'') in 1999, and, with the strong support of the
United States, WADA's development of the World Anti-Doping Code in
2003.
The Anti-Doping Code was adopted by WADA's Foundation Board, and
accepted worldwide, at the World Conference on Doping in Sport, held in
Copenhagen in March 2003. The United States played an active role in
the conference with the goal of further supporting WADA and
international sport by encouraging parties to adopt and implement the
Code's provisions within their own governments.
At the conclusion of the conference, the participating governments
adopted the Copenhagen Declaration, a political document whereby the
participants demonstrate their commitment to WADA and the
implementation of the Code in their countries. The Copenhagen
Declaration further solidified the commitment of all participants to
develop an international Convention that would legally obligate its
parties to implement the Code and to support the efforts of WADA
internationally.
The United States was one of over 80 countries to sign the
Copenhagen Declaration at the World Conference; and as of December
2007, the Declaration has been signed by 192 governments. After signing
the Copenhagen Declaration, the United States and other governments
decided to utilize the forum and resources of the United Nations
Educational, Scientific, and Cultural Organization (``UNESCO'') to
begin negotiating the proposed Anti-Doping Convention.
important factors
This Convention represents the successful outcome of the United
States intensive participation in both the development of the
Convention and in the world antidoping community generally. The final
text of this Convention accomplishes every negotiating goal that the
United States hoped to achieve, and it avoids the possible pitfalls
that the U.S. negotiators had identified. Additionally, by embodying
U.S. undertakings in an advice and consent treaty, ratification of this
Convention will demonstrate broad-based support by both the legislative
and executive branches of the Federal Government for the national and
international application of the principles of the World Anti-Doping
Code.
In supporting the World Anti-Doping Code, the Convention obligates
each party to adopt appropriate measures at the national and
international levels to implement the principles embodied in the code.
Some of the United States primary objectives in participating in the
negotiation of this Convention, beyond the substantive goal of
promoting the purpose and principles of the World Anti-Doping Code,
included:
(1) Ensuring that the Convention did not alter the existing
substance or structure of sport or antidoping laws in the
United States, especially in light of any federalism
implications of national antidoping regulation;
(2) Maintaining the status of the World Anti-Doping Agency
(WADA) as an independent and free-standing entity with primary
responsibility to oversee and monitor international antidoping
issues; and
(3) Ensuring that there was no expansion of funding
requirements for the United States as a direct result of this
Convention.
The negotiations met all of these objectives.
The Convention is entirely consistent with U.S. antidoping laws and
regulations. The Convention is not structured to secure changes to
national law or regulation, but rather to secure commitments by parties
to promote international collaboration, research, education, and their
own national efforts and awareness of antidoping-control efforts. In
other words, no new legislation will be required to implement this
Convention. Importantly, Article 35 of the Convention specifically
recognizes federalism limitations within certain parties' national
legal structures, and allows those parties, such as the United States,
to address implementation of the Convention in a manner consistent with
those concerns.
The Convention also maintains the present structure and
administration of WADA. There was some concern at the negotiations that
the Convention would enable UNESCO or other outside influences to have
a role in WADA's funding and decisionmaking processes. However, the
final text ensures that WADA maintains its present ability to equitably
address and oversee international antidoping issues. UNESCO will have
no role or oversight capacity in WADA's structure or functions. The
Convention also does not change the relationship between WADA and
individual national antidoping agencies.
Finally, the Convention places no additional funding requirements
on the United States. The WADA budgetary process will remain the same
for all participating governments. There will be no need for additional
appropriations for our participation in WADA as a result of
ratification of this Convention. Similarly, U.S. ratification of the
Convention will not result in any mandatory increase in UNESCO's
funding. Any required UNESCO resources will come out of a voluntary
fund.
In sum, the United States achieved all of its objectives in the
final text of the Anti-Doping Convention. The Convention provides
strong, worldwide support for the antidoping code and for a fair and
drug-free environment for athletes.
The Convention was adopted by UNESCO on October 19, 2005, and it
entered into force on February 1, 2007. As of May 2008, 85 countries
have ratified, accepted, approved, or acceded to the Convention.
Ratification by the United States of the Anti-Doping Convention
will affirm the United States longstanding dedication to the
development of international antidoping controls and its commitment to
apply and facilitate the application of these controls both
internationally and within the United States. Timely ratification will
also ensure that the United States will continue to remain eligible to
host important upcoming international competitions.
Accordingly, Mr. Chairman, the State Department and the
administration strongly support early ratification of this treaty. The
Department of State urges that the committee give prompt and favorable
consideration to this Convention.
Senator Lugar [presiding]. Thank you. Thank you very much,
both of you, for your testimony.
Let me just begin the questioning by asking, what is the
role that the World Anti-Doping Agency has in implementing this
convention? What kind of responsibilities do they have?
Mr. Burns. The World Anti-Doping Agency, Senator Lugar, is
the vehicle that brings together all of the parties.
Senator Lugar. This is 85 parties that have ratified, plus
others, like ourselves, that are about to do that?
Mr. Burns. Yes.
Senator Lugar. Do they have regular meetings, or can you
describe the mechanism of how all this works?
Mr. Burns. Certainly. There is a foundation board, where--
it's broken up into five regions of the world, and we are the
North, South, Central, and Caribbean region. I'm privileged to
represent 42 nations from that region on the executive
committee, and there are five government people on the
executive committee, and then there are five people from the
International Olympic Committee on the executive committee. So
everything is 50-50.
Below that is a foundation board, kind of like, I would
suppose, the House of Representatives, with about 32 members,
representing again equally government and sport. The WADA's
sole goal is to bring together some 182 nations together to
oversee doping in sport.
Senator Lugar. What level of confidence--you've been
serving, as you pointed out, in this group. What level of
confidence do we have as to how well other nations are
administering the general doctrine? In other words, as our
athletes approach the Olympics and the general public watches,
do we have confidence that country X is adopting the same
standards, the same degree of rigor, that we have in mind?
Mr. Burns. I think that's one of the reasons it's so
important that we adopt this convention and tell the world that
we're on board. Frankly----
Senator Lugar. They're asking that of us currently.
Mr. Burns. They're currently asking that of us. One of the
benefits to us is that it requires those countries that do not
have the rigorous standards that we have. I would tell you that
USADA, the United States Anti-Doping Agency, is the gold
standard. We are, and have become, the best in the world, not
only from a testing standpoint, but from coordinating with law
enforcement in the United States and worldwide to catch
cheaters.
Senator Lugar. So already we've begun to establish a very
sound record in this respect, even prior to this convention
being adopted. But nevertheless, this is--the timeliness of
this obviously is prior to the Olympic competition, to be on
record having at least the United States as a member of this.
Mr. Burns. That's absolutely correct, and we want to make a
statement to the world that we don't condone cheating, that we
are serious about this, and through USADA and also through the
White House Office of National Drug Control Policy, in
coordination with the State Department, who have been a great
partner, that word has gone out, Senator.
Senator Lugar. This is speculative, but what do you
anticipate will be the impact of this action on professional
sports in the United States? Congress has been involved
recently about baseball, for example. The question arises in
other situations. Granted, that is not a part of the Olympic
movement, but it is a part of our own ethos, I would gather a
reason why you have served and why our governmental officials
feel this is important.
Can you describe speculatively what impact this may have on
sports in general, including professional sports in our
country?
Mr. Burns. As you know, we are unique. When I meet with
sports ministers from around the world, I tell them that I am
not a sports minister. I act in that capacity because our
government doesn't oversee sport. They have Cabinet-level
people that show up at these meetings and speak for and
represent the government.
I can tell you, however, that with FIFA, world soccer,
having recently signed onto the code, it sent a loud message to
every corner of the globe with respect to how serious they were
about coming into compliance and not tolerating doping in
sports. I believe that the professional leagues are listening.
I believe that they understand that you and Senator Biden have
been vocal and passionate about this issue, and I can't help
but think that this will help.
Senator Lugar. I thank you very much.
I yield to the chairman.
The Chairman [presiding]. Thank you very much.
Let me begin with you, Mr. Burns. I have several questions
and I may, with your permission, submit to each of you a few in
writing.
Mr. Burns. Certainly.
The Chairman. The convention has an Article 19 and it
requires State Parties to, ``support, devise, or implement
education and training,'' on antidoping for athletes. How is
the United States going to meet that requirement, that
obligation? Will our efforts be expanded if the United States
becomes a party to this convention?
In other words, talk about the mechanics of how this works.
So you sign onto the convention, it requires the United States
then to support, devise, and implement education and training.
Is it going to be limited to those who are on the Olympic team
or is there training--is this an obligation to have a broader
program to get to athletes who are aspirants, Olympic
aspirants? What does it mean?
Mr. Burns. I would tell you, my interpretation of that,
frankly, is a message to other countries around the world that
do absolutely no education and no training of athletes. The
United States is not only in full compliance, but we are
leaders in the world. USADA pays for and implements a broad
education program, not only with Olympic athletes, but with
young people.
You were present and spoke with the Atlas and Athena
Program. I remember you were highlighted by Sports Illustrated
and others. I was privileged to be there with you. That is
something that is highlighted and supportive of what we do.
Frankly, all of the training and the testing and the
education programs that Congress funds also meets the
requirement.
The Chairman. So there's not likely to be any--there's no
additional obligation that would be thrust on us that we're not
already doing? I wouldn't mind additional, but we're in
compliance now, even before ratifying the convention, correct?
Is that what you're saying?
Mr. Burns. Yes.
The Chairman. The second question is, I'd like you to talk
about--help me understand the decisionmaking process at the
World Anti-Doping Agency, and describe for me the extent to
which the United States has control over decisions to amend the
World Anti-Doping Code? What role will we play in that? So as
we move down the road, there are a lot of synthetic substances.
How do we play in that game?
Mr. Burns. We're at the table. There are five regions of
the world represented by one person on the executive committee.
The United States, and I'm privileged to hold that position,
represents one of the five regions of the world, 42 countries.
That executive committee has partners, five people from the
IOC, and the decisions that are made by WADA come from that
board and from recommendations by the foundation board, which
represents a lot more countries.
The code provides, Senator--and people in this room were
adamant and vocal about that in the drafting process, and I
will tell you we were there at every meeting, whether it was in
Greece or it was in Paris or Copenhagen. Wherever they met, the
United States was there--there early and there loud--to provide
for a safety valve, which is what you spoke about, similar to--
--
The Chairman. The second question I should know the answer
to: Right now the United States has a seat at the table
representing 42 nations in the region. Is that a permanent seat
or does that get voted by the 42 nations in the region?
Mr. Burns. Have to have the support of the 42 countries.
People run for that position and if you have their trust and
confidence you're selected.
The Chairman. Thank you.
Ms. Donoghue, I have a lot of questions for you, but I'll
just limit it to one, or several parts of one question. Under
the convention the World Anti-Doping Agency has obviously a
leading role, and the countries that join the convention commit
to the principles of the World Anti-Doping Code. This is a
little unusual. We have a treaty that gives a significant role
to a nongovernmental organization, which writes the code and
which proposes amendments and annexes to the treaty, including
the prohibited list of substances.
Is there any reason--because I'm sure some will raise
this--is there any reason we should be concerned about this
structure and in having such an authority vested in a
nongovernmental agency or a nongovernment organization, I
should say? Could you speak to that from a legal perspective?
Ms. Donoghue. Yes, Mr. Chairman. It's a very interesting
question and it's one that we have looked at within the Office
of the Legal Adviser. What makes the convention unusual is the
fact that it specifies that the parties can implement it
through these nongovernmental organizations. Normally, a
convention in the technical area is implemented through
legislation, regulations, etc. Here, however, we have a
situation where we are doing what we're doing now with a little
bit of government help, but largely through nongovernment
bodies, and we want to continue to do that in the future.
As a technical legal matter, this works because the
amendments to the annex, for example, which would be changes to
``The Prohibited List'' as referenced in the WADA code, are
amendments that as a technical treaty matter the United States
can opt out of. If we don't want to be bound with respect to a
substance that's added in the future, we don't need to be as a
legal matter.
But at the same time, as we've heard, in many respects the
action in this area is really not in the governmental bodies,
but rather domestically and internationally on the
nongovernmental side, and we'll be able to continue to exercise
our influence there, while at the same time preserving our
legal flexibility on the more technical legal convention side.
The Chairman. Can you think of any other treaty where we
have done something like this? Is there any analogous treaty?
``Like this'' meaning a nongovernmental organization that can
write the regs, in effect, propose legislative implementation
language.
Ms. Donoghue. There are a variety of ways in technical
areas in which scientific and other experts interact formally
with the parties. For example, with respect to the Antarctic
treaty there's the Scientific Committee for Antarctic Research,
which is very actively engaged in shaping the activities of
that body because scientific research is so important there.
The RAMSAR convention on wetlands specifically refers to
the role for the International Union on the Conservation of
Nature, an NGO based in Switzerland. Its role is specified
there.
So there are examples that are similar to this, and again
the amendment process does still preserve the role for
governments to opt out.
The Chairman. I don't think we're going to need much help
on this in the Senate, but it may be that we come back to you
to expand on those examples for us so we have them available to
our colleagues who may raise a legal issue relating to the
nature of the treaty and the nongovernmental organization.
Ms. Donoghue. And we'll be happy to help in any way we can.
Thank you.
The Chairman. Well, I don't have any further questions. Do
you, Senator?
Senator Lugar. Mr. Chairman, just on that point while it's
in front of us. Isn't one of the purposes of having the
nongovernmental organization involved as really an audit on the
government in some cases? Without getting into any accusations,
sometimes governments, states, promote certain aspects of their
national sovereignty or however they look at it. So apparently
what you have devised, or those who are involved, is a
situation in which there is somebody outside the government
that could blow the whistle on people who become very excited
in a nationalistic way and are prepared really to take steps,
even at the expense of their athletes' health, so that they
win.
That would be the case, is it not, in the United States?
Not that our Government is going to propose that people start
using steroids in order to bulk up for the Olympics. But even
if they were to think of such a thing, this is an outside group
of people interested in health, integrity, and so forth who
blow the whistle. And that's one reason why it's important to
have this thing outside of government perhaps.
Is that too much of an extrapolation of your own views?
Mr. Burns. I think you've summarized it very well, Senator.
That's not only the intent, but I can tell you that in the 4
years that I've been there that's how it works.
Senator Lugar. Thank you.
The Chairman. Thank you, Senator.
We thank the panel and we appreciate your hard work. With a
little bit of luck, we'll be able to move this. Thank you.
Our next panel, Mr. Lynch and Mr. Tygart, please come
forward. Gentlemen, welcome. We truly appreciate your taking
the time and having the concern to be here. Mr. Lynch, I invite
you to make an opening statement.
STATEMENT OF JAIR K. LYNCH, BOARD MEMBER, U.S. OLYMPIC
COMMITTEE, AND FORMER OLYMPIC MEDALIST, WASHINGTON, DC
Mr. Lynch. Good morning, Mr. Chairman and members of the
committee. Thank you for the opportunity to appear today before
this committee. My name is Jair Lynch and I'm a member of the
United States Olympic Committee's Board of Directors. I'm also
a two-time Olympian and have won a silver medal in gymnastics
in 1996 in the Olympic Games in Atlanta. As such, I bring to
this hearing a dual perspective, that of an Olympic policymaker
as well as that of an athlete who has the tremendous honor of
representing our country in the Olympic Games.
I also bring to this hearing a profound appreciation for
the privilege and responsibility of being associated with the
Olympic movement. The Olympic Games are more than just a
quadrennial gathering of athletes. The Olympic Games are the
very manifestation of a movement that is rooted in the values
of fair play, fundamental ethical principles, and the
educational value of good example.
By adhering to these values, the Olympic movement serves as
an inspiration to millions throughout the world, particularly
youth, who are influenced by the accomplishments of the
athletes and by the manner in which their accomplishments are
achieved.
In Olympic competition it is not just the winning of the
competition that is important. The manner in which the medal is
won is equally important. Quite simply, the world expects a
victory in the Olympic Games to be entirely the result of an
individual's natural effort, rather than through manipulation
or violation of the rules, whether they are rules of play or
rules prohibiting performance enhancement through the use of
illegal or banned substances or methods.
I'm here this morning to speak briefly about the
International Convention Against Doping in Sport, the
expeditious ratification of which is important for a number of
reasons. Among them is that such action will signal to the
world the U.S. Government's continuing commitment to leadership
and support in addressing the issue of doping in international
sport.
In addition, having governments affirmatively support the
principles underlying the World Anti-Doping Code demonstrates
the international cooperation necessary to make greater
progress in the fight against doping in international sport.
International cooperation is something that the USOC recognizes
and embraces through many of its activities. as sport can serve
as an ideal vehicle to enhance international diplomacy.
When the United States decides to enter into an
international treaty, concern is often raised that the United
States will have to submit to international rules or
obligations that are inconsistent with our own practices and
values. That is not the case in this situation.
Nearly a decade ago, the USOC created the United States
Anti-Doping Agency, USADA, an independent antidoping testing
and adjudication entity that helps protect the health and well-
being of athletes and the integrity of sport by administering
one of the most rigorous testing programs in the world. The
success of an externalized antidoping program and the progress
made by USADA over the years has been significant. USADA has
been recognized by the World Anti-Doping Agency as a leader in
the fight against doping in international sport.
One of the main reasons for the success of our antidoping
program is the close partnership that was developed and the
USOC, U.S. Congress, and the Office of National Drug Control
Policy, and the full cooperation every step of the way. This
relationship stands as a positive example of how the public and
private sectors can and should work together in combatting a
problem of national, indeed international, significance.
With the opening of the 2008 Olympic Games fast
approaching, Senate confirmation of this convention will
represent an affirmation of the progress that is being made by
USADA and the commitment the USOC and our Nation's Government
has made to uphold the values of clean competition.
Another important reason for the expeditious ratification
of this convention has to do with the ability for cities from
our Nation to host future Olympic and Paralympic Games. The IOC
has mandated that in order to host the Olympic Games a nation
must have ratified, accepted, and approved or acceded to the
International Convention Against Doping in Sport. Specifically
and more immediate is our Nation's bid from the city of Chicago
to host the 2016 games. In addition to Chicago, there are six
international cities vying for this honor. Each of the nations
of each of these cities have already ratified and accepted the
convention.
Chicago has put forth what the USOC believes is a very
strong bid to host the 2016 games. But without congressional
ratification of the convention, the IOC will not accept a bid
from the United States. Needless to say, prompt action enhances
the prospects of America's bid.
On behalf of the USOC and America's Olympic and Paralympic
athletes who will be participating in the 2008 games this
summer, I thank you for your attention and consideration to
this important convention. I respectfully ask that you take
whatever steps are necessary to ensure the convention is
ratified at the earliest possible date. In doing so, you will
be confirming our country's commitment to clean and drug-free
competition and you will be protecting Chicago's bid for the
privilege of hosting the 2016 Olympic and Paralympic Games.
Thank you.
[The prepared statement of Mr. Lynch follows:]
Prepared Statement of Jair Lynch, Board Member, U.S. Olympic Committee,
Former Olympic Medalist, Washington, DC
Good morning, Mr. Chairman and members of the Senate Foreign
Relations Committee. Thank you for the opportunity to appear today
before this committee.
My name is Jair Lynch and I am a member of the United States
Olympic Committee's Board of Directors. I am also a two-time Olympian,
having won a silver medal in gymnastics at the 1996 Olympic Games in
Atlanta. As such, I bring to this hearing a dual perspective: That of
an Olympic policymaker as well as that of an athlete who had the
tremendous honor of representing our country in the Olympic Games. I
also bring to this hearing a profound appreciation for the privilege
and responsibility of being associated with the Olympic Movement.
The Olympic Games are more than just a quadrennial gathering of
elite athletes. The Olympic Games are the very manifestation of a
movement that is rooted in the values of fair play, fundamental ethical
principles, and the educational value of good example. By adhering to
these values, the Olympic Movement serves as an inspiration to millions
throughout the world, particularly youth, who are influenced both by
the accomplishments of the athletes, and by the manner in which their
accomplishments are achieved. In Olympic competition, it is not just
winning the competition that is important; the manner in which the
medal is won is equally important.
Quite simply, the world expects a victory in the Olympic Games to
be entirely the result of an individual's natural effort rather than
through manipulation or violation of the rules, whether they are rules
of play or rules prohibiting performance enhancement through the use of
illegal or banned substances or methods.
I am here this morning to speak briefly about the International
Convention Against Doping in Sport, the expeditious ratification of
which is important for a number of reasons. Among them is that such
action will signal to the world the U.S. Government's continuing
commitment, leadership, and support in addressing the issue of doping
in international sport. In addition, having governments affirmatively
support the principles underlying the World Anti-Doping Code
demonstrates the international cooperation necessary to make greater
progress in the fight against doping in international sport.
International cooperation is something that the USOC recognizes and
embraces through many of its activities--as sport can serve as an ideal
vehicle to enhance international diplomacy.
When the United States decides to enter into an international
treaty, concern is often raised that the United States will have to
submit to international rules or obligations that are inconsistent with
our own practices or values. That is not the case in this situation.
Nearly a decade ago, the USOC created the United States Anti-Doping
Agency (``USADA''), an independent antidoping testing and adjudication
entity that helps protect the health and well-being of athletes and the
integrity of sport by administering one of the most rigorous testing
programs in the world. The success of an externalized antidoping
program and the progress made by USADA over the years has been
significant, and USADA has been recognized by the World Anti-Doping
Agency as a leader in the fight against doping in international sport.
One of the main reasons for the success of our antidoping program is
the close partnership that was developed between the USOC, the U.S.
Congress, and the Office of National Drug Control Policy, and their
full cooperation every step of the way. This relationship stands as a
positive example of how the public and private sectors can and should
work together in combating a problem of national, indeed, international
significance.
With the opening of the 2008 Olympic Games fast approaching, Senate
confirmation of this Convention will represent an affirmation of the
progress that is being made by USADA and the commitment the USOC and
our Nation's Government has made to uphold the values of clean
competition.
Another important reason for the expeditious ratification of this
Convention has to do with the ability for cities from our Nation to
host future Olympic and Paralympic Games. The International Olympic
Committee has mandated that in order to host the Olympic and Paralympic
Games, a nation must have ratified, accepted, approved, or acceded to
the International Convention Against Doping in Sport.
Specifically and more immediate is our Nation's bid from the city
of Chicago to host the 2016 Olympic and Paralympic Games. In addition
to Chicago, there are six international cities vying for the honor of
hosting the 2016 Olympic and Paralympic Games which are: Baku
(Azerbaijan), Doha (Qatar), Madrid (Spain), Prague (Czech Republic),
Rio de Janeiro (Brazil) and Tokyo (Japan). Each of the nations for each
of these cities have already ratified, accepted, or acceded the
Convention.
Chicago has put forth what the USOC believes is a very strong bid
to host the 2016 Olympic and Paralympic Games. But without
congressional ratification of the Convention, the IOC will not accept a
bid from the United States. Needless to say, prompt action enhances the
prospects of America's bid.
On behalf of the United States Olympic Committee and America's
Olympic and Paralympic athletes who will be participating in the 2008
Games this summer, I thank you for your attention and consideration of
this important Convention. I respectfully ask that you take whatever
steps are necessary to ensure this Convention is ratified at the
earliest possible date. In so doing you will be confirming our
country's commitment to clean and drug-free competition, and you will
be protecting Chicago's bid for the privilege of hosting the 2016
Olympic and Paralympic Games.
The Chairman. Thank you very much.
Mr. Tygart.
STATEMENT OF TRAVIS TYGART, CHIEF EXECUTIVE OFFICER, U.S. ANTI-
DOPING AGENCY, COLORADO SPRINGS, CO
Mr. Tygart. Thank you. Mr. Chairman, members of the
committee, good morning. My name is Travis Tygart and I'm the
CEO of the United States Anti-Doping Agency. I want to thank
this committee for its interest in clean sport and for the
opportunity to appear before you today to discuss the U.N.
Scientific and Cultural Organization's International Convention
Against Doping in Sport, or the convention.
In its purest form, as we know, sport builds character and
promotes the virtues of selfless teamwork, honest dedication,
and commitment to a greater cause. The use of performance-
enhancing drugs eats away at these important attributes and
compromises everything valuable about sport.
USADA's interest in this discussion is driven by a motive
to not only protect the rights of today's Olympic athletes to
play drug-free, but, just as important, to protect America's
next generation of athletes. Doping is an ethical and a public
health problem that reaches right to the core of our collective
values and our future. Put simply, doping is dangerous cheating
that can only be truly eradicated through the collective
efforts of both government and sport organizations.
Accordingly, we welcome and appreciate the committee's
leadership on this topic and strongly support the convention
and its passage. With the commencement of the 2008 Olympic
Games in Beijing, China, only a few months away, quick action
will further demonstrate the United States Government's
commitment to a strong antidoping policy in this area.
Governments of the world play a critical role alongside and
in cooperation with sports organizations to ensure a level
playing field for all athletes. The U.S. Congress along with
the Office of National Drug Control Policy, other Federal
agencies, deserve a significant amount of credit and praise for
being at the forefront of the antidoping efforts since the late
1990s. There are many important instances of the U.S.
Government's support for antidoping efforts and the following
highlight a few of those.
In 1998 the Senate Commerce Committee spearheaded the
antidoping movement in Congress by holding hearings questioning
the prevalence of anabolic steroid use and their precursors in
Olympic sport. In February 1999, as you've heard already this
morning, the United States participated in the first World
Conference on Doping in Sport. The U.S. has continued to play a
leadership role in the formation of the World Anti-Doping
Agency and, most importantly, with formulating and passing its
uniform global code that applies to all athletes in the Olympic
movement.
In 2000, the United States Anti-Doping Agency was formed to
remove the conflict of interest that was faced by the
international governing bodies within the United States.
Congress determined and recognized USADA as the independent
national antidoping agency for Olympic, Paralympic, and Pan
American sports. The creation of USADA, frankly, triggered a
radical transformation in the world's perception of the United
States effort in the antidoping arena. Because of this, the
U.S. is now viewed as the world leader in Olympic antidoping
policy.
With the leadership of Senator Biden, Senator McCain, and
Senator Stevens, Congress again demonstrated its commitment in
this area by passing the 2004 Anabolic Steroid Control Act that
amended the Controlled Substances Act to place certain
prohibited substances, like tetrahydrogestrinone, norbolethone,
and androstenedione, on the Schedule III along with penalties
appropriate for use of those drugs.
In May 2004 the Senate exhibited one of its strongest acts
of support for clean sport when by unanimous consent the Senate
agreed to provide to USADA approximately 9,300 pages of
documentary evidence seized by U.S. law enforcement at the
BALCO raid and provided it to USADA in order to aid our
investigation of the BALCO doping conspiracy. Our investigation
resulted in the uncovering of one of the most sophisticated
international performance- enhancing drug conspiracies and to
date has led to the successful discipline of 16 people,
including Marion Jones and Tim Montgomery, for cheating their
sport through doping. Today all of the U.S. efforts in BALCO
are viewed by the world as a model for success in best
antidoping operation.
The U.S. has made great strides in the arena of Olympic
competition. Our athletic successes have been reinforced by our
success in leading the world in doping intolerance. Congress
deserves its recognition as an integral piece of this puzzle.
However, we cannot let complacency dull the sharp edges of the
doping problem. If the convention is not ratified, it is
plausible that the U.S. may look as though it no longer takes
the antidoping issue seriously. In order for the U.S. to
maintain its reputation as a world leader, it must also ratify
the convention. This treaty in our opinion does not place a
burden on the Nation that does not already exist. It simply
solidifies the principle, still followed by millions of our
kids on playgrounds around the country, that cheaters never
win.
The convention encourages the implementation of the basic
elements of the most effective antidoping programs. The tenets
of an effective program have been in place in the U.S. Olympic
movement since late 2000 when USADA took over and is now
codified in the WADA code and in the USADA Protocol for Olympic
Movement Testing. Interestingly, you saw them well vetted in
the Mitchell report that recently came out.
In addition to true independence and transparency, these
elements include:
Effective out of season and out of competition, no advanced
notice testing;
A full list of prohibited substances and methods that would
capture new designer drugs such as THG as they become
available;
Implementation of best legal and scientific policies and
practices as they evolve;
Investments into education to truly change the hearts and
minds of would-be cheaters and to teach the lessons of life
that we all can learn from ethical competition;
Investments into scientific research for the detection of
new doping substances and techniques for the pursuit of
scientific excellence into antidoping;
And most importantly, partnerships with government,
particularly law enforcement, to ensure that, in addition to
holding athletes accountable, those who illegally manufacture,
traffic, and distribute these dangerous drugs and who are
typically outside of sports jurisdiction are also held
accountable for their illegal behavior.
It is the success of this very cooperation, seen here in
the U.S. through the BALCO investigation and others like it
such as Gear Grinder and Operation Raw Deal, that has
demonstrated to the world the importance of sport and
government partnership in fighting doping.
The U.S. Olympic movement is fortunate to have a strong
group of athletes who recognize the importance of this issue
and are looking for ways to become even more involved. Our
Olympic athletes support our efforts, including passage of this
convention, because they want us to protect their right to
compete clean and they want American sports fans to be able to
once again believe in our Olympic heroes. Ultimately this is a
fight for the soul of sport and this fight most directly
impacts our clean athletes.
I want to thank this committee for its time and its
interest in this important ethical and public health issue and
for inviting me to share USADA's experiences and perspectives.
We strongly support your passage of the international
convention and remain willing to assist you in any way possible
in moving forward.
Thank you.
[The prepared statement of Mr. Tygart follows:]
Prepared Statement of Travis T. Tygart, Chief Executive Officer, United
States Anti-Doping Agency, Colorado Springs, CO
Mr. Chairman, members of the committee, good morning. My name is
Travis Tygart and I am the CEO of the United States Anti-Doping Agency
(USADA). I want to thank this committee for its interest in clean sport
and for the opportunity to appear before you today to discuss the
United Nations Education, Scientific and Cultural Organization
International Convention Against Doping in Sport (Convention).
In its purest form, sport builds character and promotes the virtues
of selfless teamwork, honest dedication and commitment to a greater
cause. The use of performance enhancing drugs eats away at these
important attributes and compromises everything valuable about sport.
USADA's interest in this discussion is driven by a motive to not only
protect the rights of today's Olympic athletes to play drug free but
just as important to protect America's next generation of athletes.
Doping is an ethical and public health problem that reaches right to
the core of our collective values and our future.
Put simply, doping is dangerous cheating that can only be truly
eradicated through the collective efforts of both government and sport
organizations.
Accordingly, we welcome and appreciate this committee's leadership
on this topic and strongly support the Convention. USADA strongly urges
the committee to vote this treaty out as expeditiously as possible.
With the commencement of the 2008 Olympic Games in Beijing, China, only
a few months away, quick action will further demonstrate the U.S.
Government's commitment to a strong antidoping policy.
Governments of the world play a critical role alongside and in
cooperation with sport organizations to ensure a level playing field
for all athletes. This treaty will help ensure cooperation among
nations, and help ensure that international sporting events are played
without the use of performance enhancing drugs.
The U.S Congress along with the Office of National Drug Control
Policy and other Federal agencies deserve a significant amount of
credit for being at the forefront of the antidoping efforts since the
late 1990s. There are many important instances of the U.S. Government's
support for antidoping efforts and the following highlight a few of
them.
In 1998 the Senate Commerce Committee spearheaded the
antidoping movement in Congress by holding hearings questioning
the prevalence of anabolic steroids and their precursors in
Olympic sport. The hearing concluded that the National
Governing Bodies of Olympic sport, such as USA Track and Field
and USA Weighlifting, had the impossible task of both promoting
their sport and policing their sport.
In February 1999 the United States participated in the first
World Conference on Doping in Sport. The United States played a
leadership role in the formation of the World Anti-Doping
Agency, a world-level antidoping organization tasked with
promoting and coordinating a uniform global approach to
fighting doping in sport. As a member of WADA's executive
committee, the United States continues to have a strong
influence in WADA's governance and policy-setting including the
WADA Code, the uniform set of antidoping rules that has applied
to the global Olympic sports movement since August 2004.
In October 2000, the United States Anti-Doping Agency was
formed to remove the conflict of interest that was faced by the
NGBs within the United States. Congress determined and
recognized USADA as the independent, national antidoping agency
for Olympic, Paralympic, and Pan American sport in the United
States. The creation of USADA triggered a radical
transformation in the world's perception of antidoping efforts
by the United States. USADA subjects our athletes to the most
rigorous antidoping programs in the world. Because of this, the
United States is now viewed as the world leader in Olympic
antidoping, drawing other national antidoping agencies--such as
Russia and Australia--to the United States in order to learn
from our policies and programs.
In 2003, with the leadership of Senator Biden, Senator
McCain, and Senator Stevens, Congress again demonstrated its
commitment in this arena by passing the 2004 Anabolic Steroid
Control Act that amended the Controlled Substances Act to
schedule many pro hormones and other dangerous steroids such as
androstenedione, norbolethone and THG as Schedule III drugs.
In May 2004 the Senate exhibited one of its strongest acts
of support for clean sport when, by unanimous consent, it
agreed to provide approximately 9,300 pages of documentary
evidence seized at BALCO by U.S. law enforcement to USADA in
order to aid in its investigation of the BALCO doping
conspiracy. This investigation resulted in the uncovering of
one of the most sophisticated international performance
enhancing drug conspiracies and to date has led to the
successful discipline of 16 people including Marion Jones and
Tim Montgomery for cheating their sport through doping. Today,
all of the U.S.'s efforts in BALCO are viewed by the world as
the model for success in best antidoping operation.
The United States has made great strides in the arena of Olympic
competition. Our athletic successes have been reinforced by our success
in leading the world in doping intolerance. Congress deserves its
recognition as an integral piece of this puzzle. However, we cannot now
let complacency dull the sharp edges of the doping problem. If the
Convention is not ratified it is plausible that the United States may
look as though it no longer takes the antidoping issue seriously. In
order for the United States to maintain its reputation as a world
leader, it must also ratify the Convention. This treaty does not place
a burden on the nation that does not already exist; it simply
solidifies the principle still followed by millions of kids on today's
playgrounds that winners never cheat and cheaters never win.
The Convention encourages the implementation of the basic elements
of the most effective antidoping programs. The tenets of an effective
program have been in place in the U.S. Olympic movement since late 2000
and are now codified into the WADA Code and the USADA Protocol for
Olympic Movement Testing. In addition to true independence and
transparency, these elements include:
Effective out of season and out of competition, no advanced
notice testing;
A full list of prohibited substances and methods that would
capture new, designer drugs such as THG as they are developed;
Implementation of the best legal and scientific policies and
practices as they evolve which must include adequate sanctions
and due process protections for those accused of doping
violations;
Investments into education to truly change the hearts and
minds of would-be cheaters and to teach the lessons of life
that can be learned only from ethical competition;
Investments into scientific research for the detection of
new doping substances and techniques and for the pursuit of
scientific excellence into antidoping;
And most importantly, partnerships with law enforcement to
ensure that in addition to holding athletes accountable, those
who illegally manufacture, traffic, and distribute these
dangerous drugs and who are typically outside of sports
jurisdiction are also held accountable for their illegal
behavior. It is the success of this very cooperation seen here
in the United States through the BALCO investigation and others
like it such as Gear Grinder and Operation Raw Deal that has
demonstrated to the world the importance of sport and
government partnership in fighting doping.
The U.S. Olympic movement is fortunate to have a strong group of
athletes who recognize the importance of this issue and are looking for
ways to become even more involved. Our Olympic athletes support all of
our efforts including passage of the Convention because they want us to
protect their right to compete clean and they want American sports fans
to be able to once again believe in their Olympic heroes. Ultimately,
this is a fight for the soul of sport and this fight most directly
impacts the clean athletes.
I would like to thank this committee for its time and its interest
in this important ethical and public health issue and for inviting me
to share USADA's experience and perspectives. We strongly support your
passage of the International Convention Against Doping in Sport and
remain willing to assist you in this effort in any manner possible.
The Chairman. Thank you. Let me begin by thanking you both
for being here and for the work you've done.
I will say in advance--I've discussed this with the
chairman--I'm going to have to go to the Judiciary Committee. I
have a child pornography piece of legislation that we're about
to vote on in a few minutes. So after I finish my questioning,
I apologize, my leaving is not out of a lack of interest. And I
thank the chairman for staying.
I have a question for you, Mr. Lynch. Way back in the 1990s
when I started this thing about dealing with steroids, quite
frankly, it was because I was angry. I was angry--and I am
nothing like a world class athlete, but as an athlete who tried
to compete in high school and college--I was angry that in the
sports that I was playing--baseball and football--that someone
like me would be put at a disadvantage by someone who maybe had
no more talent than I had, but was literally able to in a
matter of months add on 20 pounds of muscle. I particularly
thought about it in terms of playing football. I was 6-1, 155
pounds, and they'd lie on the program because they'd weigh me
with my uniform on, literally, and say I was 175.
But it used to be thought, back 100 years ago when I was
playing, that raw talent was enough--it used to be it's not the
size of the dog, it's the fight, it's the amount of the fight
in the dog, et cetera, and all those expressions from my
generation. And it just really frustrated me to see all of a
sudden--imagining lining up on the flank, looking at a
linebacker that was 240 pounds, knowing that probably 35 of
those pounds were because he was--it wasn't illegal then--was
using steroids. So it was prompted just from almost gut
reaction, just anger.
I'd like you to talk with me for just a second about when
you were competing, whether or not you, or friends of yours,
would literally look at a competitor and wonder, in order for
me to make this team--I'm not asking for any names or anything,
and I'm just talking about international competitions. When I
spoke to some professional ball players, baseball players, off
the record, a couple pointed out that their ticket out of
poverty and out of particularly, the Dominican Republic, very
poor Latin American countries, was baseball, that was their
ticket; and that when they were picked in a farm club they'd
look around and say: Wait a minute; if I don't want to do this,
but if I don't do what these other guys are doing--I go home.
My ticket is gone.
So the pressure--I'd like you to talk to me about the
pressure, if it is, the pressure that exists on the part of
someone who wants to stay clean, does not want to pollute his
or her body, wants to stay clean, but looks at it and says:
Wait a minute; this simply isn't fair. If I don't engage in
enhancements, I'm going to lose my job, I'm not going to make
the team.
Can you talk to me about that? Is that a conscious thing
that athletes talk about? And I'm not suggesting those who
raise that question then go ahead and dope. I don't mean that.
I mean, talk to us about the pressures so average people
understand what goes on when you're at the level of world
competition like you were and did so well?
Mr. Lynch. Thank you for the opportunity to express my
opinion of the values that were placed upon me, not only by my
parents, but by this country and by the USOC when I was growing
up. That was about clean sport, that was about integrity and
hard work. I felt that if I stayed close to those values the
temptations of rapid ascension through the sport through
illegal means, circumventing what hard work teaches you,
circumventing what trial and error and perseverance teaches
you, really is moving away from your value structure.
I was never willing to move away from our value structure.
I was never willing to move away from those ideals that we
embody in the Olympic movement. Once I was able to do that, I
was able to put to bed any desire to step out, to move faster,
to circumvent the process. I used my talent, I used my hard
work, I used my perseverance, and if that took me to the top
then I was very satisfied. If that didn't take me to the top--
--
The Chairman. What about people who have the talent and
work hard and say, you know, but, two people of equal talent,
equal dedication to hard work, equal dedication to trial and
error, the one using the performance drug is going to beat the
one not using the performance drug, assuming they both have
equal talent.
So what I'm trying to get at is, were there days in
international competitions when you looked across at someone
else who was putting the chalk on their hands there, you look
and say, geez, that guy, that ain't real? How am I going to--
this is more colloquial, I apologize, than anything else. But
I'm just curious about the attitudes of competitors at your
level because, although we have been leading the world since
the late 1990s and I would argue before that, we know the
history of how prevalent. I gave the East German example, which
wasn't the only example.
Our athletes must have sat there and said: Wait a minute;
this game's rigged; the only way I can win is to get engaged.
That's what I'm trying to get at. And I don't doubt for a
minute what you said, that you had this value set, you stuck to
the value set, and you were rewarded for having stuck to the
value set. But I just wondered what is the kind of discussion
among your colleagues that you'd have in the locker room. Or
maybe you never looked at anybody and said, hey, I think
they're using enhancement drugs; I've never competed with
anybody I thought was using enhancement drugs.
Mr. Lynch. I think you described a fire, a fire in your
belly, and by all means I had that fire in the belly, not only
about competing but about what I saw with things that could be
questionable. The difference was that that fire in the belly
always got me back to working harder and not to be obsessed
about the code and what people were taking. I left that to the
leaders inside the U.S. Olympic Committee, and that's one of
the reasons I've now come back to work on the U.S. Olympic
Committee, to be able to take that off the shoulders of the
current athletes, so they can keep their fire focused on the
sport and the work that they're doing, while we take the
responsibility of making sure that we can put a clean team on
the field.
The Chairman. Well, I'm glad you're doing that.
Mr. Tygart, thank you for your work, for real. You've made
a great contribution. I'd like you to--I'm just going to ask
you one question. You talked about HGH. You mentioned it, the
human growth hormone, which is increasingly, there are reports,
being used by athletes, not necessarily by Olympic athletes, by
athletes, to gain competitive advantage, in part because it's
more difficult to test for and to, in turn, detect than more
traditional steroids.
Could you describe briefly the current availability of
commercial testing capabilities for HGH and how it's being
tested for the Olympic, and whether you think regular testing
for HGH would reduce the use in professional sports here in the
United States?
Mr. Tygart. Yes, sir, and thank you for that question. The
HGH test is a blood-based test and it is available and it has
been used. It was used in the 2004 Athens games, used in the
2006 Torino games. All expectations are that it will be used in
the 2008 Beijing games.
It is not yet available worldwide, because there is a kit
that goes along with that test in order for the laboratory once
the blood is received to run that test. It's an immunoassay
kit. And those kits unfortunately had delayed production and
there was a limited supply of those kits that were originally
made used at the games.
Our expectation is those kits will be available in the
coming weeks. Our lab at Salt Lake just went through its
training and it's got preparations to have the test in place as
soon as those kits are available and our hope, as I said, is to
have that test available prior to sending our team off to the
Olympic Games. And then once it's there and the test is
validated within the lab, it'll be used throughout our efforts
and then will be available to other entities, whether it's a
professional sports league here in the U.S. or others around
the world, to utilize that test.
The Chairman. Well, that would be good. The reason I ask
the question is I've done a lot of work in DNA testing relating
to violence against women and these. We now provide to most
police departments through Federal subsidies these kits for
police officers at the scene of an alleged rape to be able to
gather information and that allows for testing. But we have
well over 80,000 of them sitting on a shelf somewhere because
we don't have a sufficient number of laboratories.
Now, the technology is not quite what you need for HGH,
although it is complicated. So what we've been trying to push
is the accreditation of, and the establishment of, additional
laboratories for forensic purposes in this case.
So you're confident--or are you confident that here in the
United States there's enough ability for the kits to be
available, as you indicated, but that the reading of the
results from the kit that is used to employ the test, that
there is sufficient confidence there's enough of them and that
it's reliable?
Mr. Tygart. I am, once it's in the lab and validated. And
then, your second point, the capacity of the lab will not be a
problem, given the nature of the test.
As an aside, a strategy for deterring and ultimately
detecting HGH, one element of it is the testing aspect.
The Chairman. Right.
Mr. Tygart. There's other elements to it, such as a
nonanalytical positive, where you can bring discipline against
an athlete. We've disciplined athletes for HGH use. It hasn't
been through a test result, but it's been through other
evidence that indicates clearly their use and possession of
human growth hormone. So you have to approach it from a broader
perspective than just the narrow testing.
The Chairman. Again I apologize for going over, Mr.
Chairman.
The reason I raise that as well, as I told you, an ulterior
motive I have in addition to the necessity and the efficacy and
the ethical requirement to us to sign onto this convention, is
I hope it sets the tone, as George Mitchell did in his report,
that this becomes the gold standard. As you well know, it's
highly unlikely in professional sports that those objective but
subjective tests of whether human growth hormone is being used
would be ever agreed to by the athletes, the unions, or the
owners of these teams. So I think we're going to end up with
HGH needing, ``the blood test,'' because you have more latitude
under your regulations that we've signed onto to discipline
Olympic athletes, unless I'm misunderstanding.
Mr. Tygart. No; I think you're absolutely right, with one
exception, in that 12 months before the Olympic Games all of
the professional athletes in, let's say NBA for example, do
fall under our jurisdiction. And we've heard no complaints
about any of the strict standards that they are held to 12
months before those games.
The Chairman. Well, that's good stuff. That's good stuff. I
want more professional athletes. I used to be opposed to
professional athletes competing in the Olympics, to reveal my
total bias and prejudice, but I've changed my mind if it puts
them into the testing regime.
At any rate, I thank you both. I thank all the witnesses,
and I particularly thank you, Senator Lugar, for allowing me to
head off. I just got a note, my amendment is up in the other
committee.
Thank you, gentlemen. We'll move as rapidly as we can.
Senator Lugar. I wish you the best of luck in Judiciary.
The Chairman. Thank you.
Senator Lugar [presiding]. And that you do as well as here.
Let me continue the questioning by asking you, Mr. Tygart,
how many countries have independent antidoping entities? Is
this common practice in the other countries we've been
discussing today or are there major exceptions to that rule?
Mr. Tygart. There are certainly exceptions, but U.K., for
example, Australia, Canada. The trend, as the world now knows
and again reflected in Senator Mitchell's report, is that true
independence is the most successful and effective way to handle
this problem of doping in sport. Really, that was the model
under which WADA took over, as an independent agency outside of
the International Olympic Committee, to fully separate the
obligations of sport to both promote and police itself, because
it's awfully difficult to do both. When you have a direct
financial interest in the performance of athletes'
performances, it becomes very difficult in certain situations
when you're also asked to police and potentially bring
discipline against those players that directly impact your
bottom line.
Senator Lugar. Has there been publication of a list or
lists of those countries that have independent antidoping
agencies?
Mr. Tygart. We can provide that for you.
Senator Lugar. As opposed to those who do not.
Mr. Tygart. Yes. We'll do some research and can provide
that for you, Senator.
Senator Lugar. That would be helpful for our record.
Mr. Tygart. We will do that.
[The written information supplied by Mr. Tygart follows:]
Below is a recent list from the World Anti-Doping Agency of all the
National Anti-Doping Organizations that have signed the WADA Code. I
understand this is a list of those entities independent from sport that
handle antidoping matters in that country. These may or may not be
government entities and/or receive government funding.
Albania (ALB)--Ministry of Tourism, Culture, Youth and Sports of
Albania
Algeria (ALG)--Algeria Anti-Doping Agency
Argentina (ARG)--Comision Nacional Antidoping
Australia (AUS)--Australian Sports Anti-Doping Authority
Austria (AUT)--Austrian Anti-Doping Committee
Bahamas (BAH)--Bahamas National Anti-Doping Committee
Bahrain (BRN)--General Organization for Youth and Sports
Barbados (BAR)--National Anti-Doping Commission
Bermuda (BER)--Bermuda Council for Drug-Free Sport
Brazil (BRA)--Brazilian Agency for Doping Control--Brazilian Olympic
Committee
Bulgaria (BUL)--National Anti-Doping Commission
Cameroon (CMR)--Organisation for the Fight Against Doping in Sports
Canada (CAN)--Canadian Centre for Ethics in Sport
Chile (CHI)--Comision Nacional de Control de Dopaje
China (CHN)--Chinese Olympic Committee Anti-Doping Commission
Chinese Taipei (TPE)--Anti-Doping Commission of NOC
Colombia (COL)--COLDEPORTES
Congo-Brazzaville (CGO)--National Anti-Doping Committee
Congo, Dem. Republic of (COD)--Comite national antidopage congolais
Cook Islands (COK)--Medical and Anti-Doping Committee
Comoros (COM)--National Anti-Doping Organization
Costa Rica (CRC)--Instituto Costarricense del Deporte y la Recreacion
Croatia (CRO)--Croatian Anti-Doping Agency
Cyprus (CYP)--Cyprus National Anti Doping Committee
Czech Republic (CZE)--Anti-Doping Committee
Denmark (DEN)--Anti-Doping Denmark
Ecuador (ECU)--Comision Nacional de Control Antidopaje del Ecuador
(CONCADE)
El Salvador (ESA)--Instituto Nacional de los Deportes
Estonia (EST)--Estonian Anti-Doping Agency
Fiji (FIJ)--Fiji Sports Drug Agency
Finland (FIN)--Finnish Antidoping Agency
France (FRA)--French Anti-Doping Agency (AFLD)
Georgia (GEO)--Georgian National Anti-Doping Agency
Germany (GER)--National Anti-Doping Agency
Great Britain (GBR)--UK Sport
Greece (GRE)--Hellenic National Council for Combating Doping
Guatemala (GUA)--Agencia Nacional Antidopaje de Guatemala
Guinea (GUI)--National Committee for the Fight Against Doping
Hungary (HUN)--Hungarian Antidoping Coordination Body
Iceland (ISL)--National Olympic and Sports Association
India (IND)--National Anti Doping Agency, India
Indonesia (INA)--Indonesian Antidoping Agency
Iran (IRI)--Iran Anti-Doping Agency
Ireland (IRL)--Irish Sports Council
Israel (ISR)--Anti Doping Committee Israel NOC
Italy (ITA)--Comitato Olimpico Nazionale Italiano (CONI)
Ivory Coast (CIV)--Comite National Lutte Antidopage
Jamaica (JAM)--Jamaica Anti-Doping Commission (JADCO)
Japan (JPN)--Japan Anti-Doping Agency
Jordan (JOR)--Jordan Anti-Doping Organization
Kenya (KEN)--Kenya Anti-Doping Agency
Korea (KOR)--Korea Anti-Doping Agency
Latvia (LAT)--Ministry of Health, Republic of Latvia
Lithuania (LTU)--Anti-Doping Agency of Lithuania
Luxembourg (LUX)--National Anti-Doping Agency
Macedonia (MKD)--National Anti-Doping Commission--Macedonia
Malaysia (MAS)--Anti-Doping Agency of Malaysia (ADAMAS)
Mali (MLI)--National Anti-Doping Commission
Mauritius (MRI)--Ministry of Youth & Sports Anti-Doping Unit
Mexico (MEX)--Comite nacional antidopaje de Mexico
Monaco (MON)--Anti-Doping Committee
Mongolia (MGL)--Mongolian National Anti-Doping Organization
Netherlands (NED)--Anti-Doping Authority of the Netherlands
New Zealand (NZL)--Drug Free Sport New Zealand
Nicaragua (NCA)--Instituto Nicaraguense de Deportes (I.N.D.)
Nigeria (NGR)--Anti-Doping Unit, Federal Ministry of Sports and Social
Development
Norway (NOR)--Anti-Doping Norway
Pakistan (PAK)--Anti-Doping Organization of Pakistan (ADOP)
Panama (PAN)--Instituto Panameno de Deportes
Papua New Guinea (PNG)--Papua New Guinea Sports Anti-Doping
Organization
Peru (PER)--Comision Nacional Antidopaje del Peru
Philippines (PHI)--Philippine Sports Commission
Poland (POL)--Polish Commission Against Doping in Sport
Portugal (POR)--National Anti-Doping Council
Puerto Rico (PUR)--Puerto Rico Anti-Doping Commission
Qatar (QAT)--Qatar National Anti-Doping Commission
Romania (ROM)--National Anti-Doping Agency of Romania
Russia (RUS)--National Anti-Doping Organization ``RUSADA''
Samoa (SAM)--Samoa Antidoping Agency
San Marino (SMR)--San Marino Anti-Doping Committee
Senegal (SEN)--National Anti-Doping Commission
Serbia (SRB)--Antidoping Agency of Serbia (ADAS)
Seychelles (SEY)--Seychelles Anti-Doping Commission
Singapore (SIN)--Singapore National Olympic Anti-Doping in Sports
Commission
Slovakia (SVK)--Slovakian Anti-Doping Committee
Slovenia (SLO)--National Antidoping Commission
South Africa (RSA)--South African Inst. for Drug-Free Sport
Spain (ESP)--Spanish National Anti-Doping Commission
Sri Lanka (SRI)--NADO Sri Lanka
Sudan (SUD)--Sudanese Anti-Doping Agency
Sweden (SWE)--Swedish Sports Confederation
Switzerland (SUI)--Swiss Olympic Committee
Tunisia (TUN)--Anti-Doping Organization of Tunisia
Turkey (TUR)--Turkish Doping Control Center
Ukraine (UKR)--National Anti-Doping Organization of Ukraine
Uganda (UGA)--Uganda National Anti-Doping Organization
United Arab Emirates (UAE)--UAE Anti-Doping Committee
United States of America (USA)--US Anti-Doping Agency
Uruguay (URU)--Direccion Nacional de Deporte--Ministerio de Turismo y
Deporte
Venezuela (VEN)--Comision antidopaje de la Republica Bolivariana de
Venezuela
Senator Lugar. What, Mr. Tygart, is the process for drug
testing at the Olympic Games, or maybe I should expand the
question on the basis of what you have mentioned, that the NBA
basketball athletes would come under the regime the year before
the Olympic? So describe what is the testing regime or
procedure for Olympic athletes?
Mr. Tygart. Well, we've got several initiatives leading
into the Beijing Olympic Games that you might find of interest.
One is what we call our 120-day testing program, where all
athletes who will be representing the United States in the
Olympic Games will be tested and have declared negative tests,
so if there's any positives they will be resolved.
Senator Lugar. Across all sports?
Mr. Tygart. All sports----
Senator Lugar. Professional, amateur, whoever?
Mr. Tygart. Anyone who will represent the U.S. in the
Olympic Games.
Second, the 12-month rule I mentioned. All athletes who are
candidates for the Olympic team, including professional sports,
NBA players going into the Summer Games, but similarly the NHL
players going into the Winter Games, are encompassed and fall
under our jurisdiction. That means they're providing us their
whereabouts for no advance notice, out of competition testing,
out of season testing, things that they're not normally used to
under their own regimes.
Senator Lugar. Does a person declare himself or herself
candidates some 12 months out? In other words, this is sort of
an interesting concept because the actual representatives of
our country are determined in various trials or tests for track
and field or for swimming or what have you at various stages.
So for instance, people who are interested in running the 400-
meter dash, 12 months out, do they declare this so that they
come under your jurisdiction?
Mr. Tygart. They do. There's a good faith effort. I mean,
my 6-year-old wouldn't be named as a potential Olympic
candidate. So there is a good faith effort to name only those
that most likely are going to be successful when those trials
come up. But the goal is to have all of those athletes in the
pool. And we've had situations where a true dark horse comes
out of nowhere and ends up being on the team, but they have
been subject to that 120-day testing policy that I've
mentioned.
Senator Lugar. Finally, the chairman asked about the human
growth hormone, HGH, situation. Philosophically or medically,
is there a case to be made as to why human growth hormone might
be helpful to a human being, let's say outside the realm of
athletics, although today we are concentrating in athletics
because of the competitive elements, the integrity of the
sport? I'm not that familiar with human growth hormone and its
effects or what the medical findings are. But is this
prescribed on occasion by physicians to patients for purposes
of their own longevity or vitality?
Mr. Tygart. There is. Human growth hormone is a
prescription drug. It falls under the Food, Drug, Cosmetics
Act. There's really three--unlike other drugs, there is no
ability to use it, as I understand it, off-label, but there are
three primary areas where it can be prescribed. One is for
short stature disease, so dwarfism essentially. Another is
wasting disease, which can be caused by HIV and AIDS. Another
is suppression of human growth hormone.
Importantly, there's no off-label use for it and whether
that occurs in the future is just something that will have to
be studied. But those are the three areas where it can be
legitimately prescribed for those diagnosed diseases.
Senator Lugar. So the dilemma for not only the Olympic
athletes, but then the growing discussion among all
professional athletes, is one in which I gather we would say in
common sense the three conditions you have suggested are not a
part of professional athletics or Olympic athletics and
therefore the human growth hormone would not only be
inappropriate, but we might even move to say illegal.
Can you sort of describe this process as it's evolving
legally in our country?
Mr. Tygart. I think that's absolutely right. Importantly,
we do have a process by which athletes who have a legitimate
medical problem can get permission through an independent
review process to use a legitimate medication. We obviously
want our athletes to be able to do that. But I absolutely agree
with you that it is illegal.
Senator Lugar. That would be a transparent process, through
this request by the athlete?
Mr. Tygart. Absolutely.
Senator Lugar. Let me just follow along, Mr. Lynch, Senator
Biden's questioning, because from your experience as an athlete
and now one working continuously with athletes in your capacity
with the Olympic Committee, what is the challenge that the
antidoping commission or anyone else faces with athletes?
Senator Biden has indicated obviously somebody might want to
grow stronger, heavier, so forth. But is this a more subtle and
complex process?
In other words, if you were working, as both of you are, to
eradicate doping, how do you progress on this, given your
knowledge of the psychology of athletes at the very highest
level and the sorts of pressures, temptations, motivations that
they may face?
Mr. Lynch. Well, as Travis indicated, the approach is
broad. The approach is broad. The approach begins with
layering, with education.
Senator Lugar. What do you mean by that? What do you mean
by ``education''?
Mr. Lynch. Well, Travis can get into the specific
educational policies that are in USADA's court. But as a
benchmark, there is always an explanation of the Olympic
process in terms of the responsibilities of the athletes as not
only competitors during the competition, but also as role
models for the country. And that layers in the sense of
responsibility for the athlete to recognize that they not only
should be very proud to represent our country, but they have a
strong responsibility to do so in a clean fashion.
Senator Lugar. Can you describe any further the education
process?
Mr. Tygart. Yes; we can. We see it as really twofold. One,
we're going to do our best to change the hearts and minds of
the elite-level athletes who are competing and representing
this country in international competition; and it's giving them
more tools. If we tell them not to use steroids to get bigger,
we have to give them the practical tools as to how to get
bigger and better and more competitive, that's fair under the
rules and that all competitors are allowed.
Senator Lugar. You have to give alternatives.
Mr. Tygart. That's right, to give alternatives, and
certainly testimonials, to try to change the hearts and minds,
because at the end of the day our experience has been, whether
it's Marion Jones or Kelly White, they just don't feel good
about their cheating. And this still is a value issue, that if
we can tap into that core of the ethos and the moral reasoning
we feel like we can change those hearts and minds to cause
cheaters not to want to cheat any more.
Second, we have to approach it from a community level,
because we all acknowledge our youth of today are our Olympians
of tomorrow and we have to give them the same message of making
good ethical decisions, healthy lifestyle, and staying away
from these dangerous drugs.
Senator Lugar. Well, we thank you both for coming, and
likewise our previous panel of witnesses. I think we have
established a good committee record in preparation for our full
committee consideration of this. I know the chairman's intent
is to move promptly and this is the reason he called the
hearing today and has asked you to come to it, and we
appreciate your being with us.
Having given this appreciation to you, I will adjourn the
hearing and look forward to the Olympics.
Mr. Tygart. Thank you.
Senator Lugar. Thank you very much.
[Whereupon, at 10:33 a.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Principal Deputy Legal Adviser Joan Donoghue to Questions
Submitted by Senator Joseph Biden
Question. Article 6 of the Convention clarifies the relationship
between the Convention and other international instruments. Can you
confirm that the second sentence of this article limits the impact of
the first sentence? In other words, if there were a conflict as between
this Convention and the Council of Europe's Anti-Doping Convention, is
it correct to assume that article 6 would permit States that are party
to both instruments to apply the Council of Europe's Anti-Doping
Convention among themselves, but only insofar as doing so does not
affect the enjoyment by third parties (that are not parties to the
Council of Europe's Anti-Doping Convention) of their rights or the
performance of their obligations under the UNESCO Convention?
Answer. Yes. Article 6 would permit States that are party to both
this Convention and the Council of Europe's Anti-Doping Convention to
apply the Council of Europe's Convention among themselves, but only
insofar as that application does not affect the other States Parties'
enjoyment of their rights and obligations under the UNESCO Convention.
The United States is a party to several agreements with similar
provisions. For example, Article 44(1) of the Agreement for the
Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 Relating to the Conservation and
Management of Straddling Fish Stocks and highly Migratory Fish Stocks
(S. Treaty Doc. 104-24); Article 39 of the 2000 Convention Concerning
Migratory Fish Stock in the Pacific Ocean (S. Treaty Doc. 109-1); and
Article 39(2) of the Convention on Cybercrime (S. Treaty Doc. 108-11).
Question. Article 14 of the Convention states that parties
``undertake to support the important mission of the World Anti-Doping
Agency . . .'' Article 15 states that parties ``support the principle
of equal funding of the World Anti-Doping Agency's approved annual core
budget by public authorities and the Olympic Movement.'' Does the
Department view either of these articles as committing the United
States to make a financial contribution to WADA?
Answer. No. The Convention does not commit the United States to
make a financial contribution to WADA. The Convention was drafted in
part to solidify governmental support for WADA. It recognizes the
existing financial structure and important mission of WADA. However,
nothing in the Convention legally obligates the United States to
provide funding or other resources to WADA.
Question. Article 17(3) states that ``[c]ontributions to the
Voluntary Fund [established in the Convention] by States Parties shall
not be considered to be a replacement for States Parties' commitment to
pay their share of the World Anti-Doping Agency's annual budget.'' To
what commitment is this provision referring?
Answer. The commitment to which article 17(3) is referring is the
political commitment of the States Parties as embodied in the
Copenhagen Declaration, adopted by the World Conference on Doping in
Sport in 2003. In that Declaration, the participants reaffirmed their
commitment to continue funding and supporting WADA. Part three of the
Declaration\1\ specifically provides for a 50-percent split of WADA's
funding between the governments and the World Olympic Movement. Through
this political document, the participants endorsed a particular
approach to the funding for WADA. Article 17(3) of the Convention
confirms that any additional resources the States Parties voluntarily
contribute under the Convention would in no way off set their portion
of funding for WADA.
---------------------------------------------------------------------------
\1\See part 3 of the Copenhagen Declaration, at http://www.wada-
ama.org/en/dynamic.ch2?page
Category.id=272:
---------------------------------------------------------------------------
Each Participant:
3.1. Recognises the role of, and supports, WADA;
3.2. GSubject to modification through appropriate intergovernmental
cooperation, declares its intention to continue the practices public
authorities have followed in the governance and financing of WADA and,
within this framework:
3.2.1. GSupports the following allocation of public authority
delegates to the WADA Foundation Board according to Olympic
regions:
4 representatives from the Americas;
3 representatives from Africa;
5 representatives from Europe;
4 representatives from Asia;
2 representatives from Oceania.
3.2.2. GSupports the co-funding of WADA by public authorities
and the Olympic movement as follows:
3.2.2.1. GPublic authorities contribute collectively
50 percent of the approved WADA annual core budget;
3.2.2.2. Public authority payments to WADA according
to Olympic regions:
GAfrica: 0.50 percent; Americas: 29 percent;
Asia: 20.46 percent; Europe: 47.5 percent; Oceania:
2.54 percent
Question. Article 32(2) of the Convention states that at the
request of the Conference of Parties, the Director-General of UNESCO
``shall use to the fullest extent possible the services of the World
Anti-Doping Agency . . .'' This is a bit unusual. Do you have any
examples of other treaties to which the United States is a party, in
which it is explicitly stated that a nongovernmental organization can,
or should, be employed in implementing the treaty?
Answer. Yes. Article 14(2) of the 1972 Convention Concerning the
Protection of the World Cultural and Natural Heritage (T.I.A.S. 8226),
to which the United States is a party, uses very similar language to
Article 32(2) of the Anti-Doping Convention. Article 14(2) of the 1972
Convention provides: ``The Director-General of the United Nations
Educational, Scientific and Cultural Organization, utilizing to the
fullest extent possible the services of the International Centre for
the Study of the Preservation and the Restoration of Cultural Property
(the Rome Centre), the International Council of Monuments and Sites
(ICOMOS) and the International Union for Conservation of Nature and
Natural Resources (IUCN) in their respective areas of competence and
capability, shall prepare the committee's documentation and the agenda
of its meetings and shall have the responsibility for the
implementation of its decisions.'' This article relies on several
nongovernmental bodies to assist the Secretariat in preparing for
meetings and in implementing decisions ``to the fullest extent
possible.''
There are other treaties that operate with support from
nongovernmental bodies or scientific and technical organizations. As
mentioned at the hearing and as further discussed in the answer to the
sixth Question for the Record, both the 1959 Antarctic Treaty and the
1971 Convention on Wetlands of International Importance, especially as
Waterfowl Habitat, provide good examples of the importance of such
expert bodies in treaty regimes.
Question. Since the Convention was adopted in 2005, there have been
changes made to the World Anti-Doping Code.
a. Given the unique relationship this Convention has with
WADA and the Code, do changes made to the Code by WADA affect
States Parties rights or obligations under the Convention?
b. Have any of the current States Parties proposed amending
Appendix 1 of the Convention to reflect the changes made to the
Code by WADA?
c. Is it the intent of the United States to propose amending
Appendix I of the Convention to reflect the changes that have
been made to the Code? Please explain your answer.
Answer. The Convention does have a unique relationship with the
Code in several respects. Most notably, while the Convention was
negotiated in large part to support the principles and spirit of the
Code, the Code itself is not an integral part of the Convention. There
is no specific provision for amending the appendices to the Convention,
including the Code, as these are included for informational purposes
only.
In answer to your specific questions:
a. The Convention does not make the Code legally enforceable
against the States Parties to the Convention. Accordingly, changes made
to the Code by WADA do not affect States Parties' rights or obligations
under the Convention.
b. None of the current States Parties have proposed amending
Appendix 1 to the Convention. The most recent changes made by WADA will
not come into force until 2009, but even when that event occurs, there
will be no change with respect to the rights and obligations of the
States Parties under the Convention.
c. It is not the intent of the United States to propose any
amendments to the appendices. As explained, the Code is not an integral
part of the Convention; rather it is included as an appendix for
informational purposes only. The Convention supports the principles and
spirit of the Code, but any changes or amendments to the Code itself
will not change the States Parties' rights or obligations under the
Convention. Accordingly, even if WADA amends the Code further, there is
no need for the United States to propose an amendment to Appendix 1.
The objectives and purposes of the Convention remain unchanged and will
still be accomplished even if the version of the Code in Appendix 1 is
not the most up-to-date version.
Question. In your testimony, you mentioned two examples of treaties
in which scientific and other experts interact formally with the States
Parties and the intergovernmental bodies established in those treaties.
Can you expand on those two examples or others, if you think they are
more relevant?
Answer. In my testimony, I mentioned the Convention on Wetlands of
International Importance, especially as Waterfowl Habitat, done at
Ramsar, Iran, February 2, 1971 (``Ramsar Convention''). TIAS 11084. I
also mentioned the 1959 Antarctic Treaty. TIAS 4780. These two treaties
utilize the resources and expertise of nongovernmental scientific
bodies as important participants in the treaty implementation regime.
Specifically, Article 8 of the Ramsar Convention provides that the
International Union for Conservation and Natural Resources shall be
responsible for, among other things, maintaining a list of
internationally important wetlands and convening and organizing
Conferences under the Treaty. Both of these tasks are of great
significance to the Treaty's implementation. Article 8 of that
Convention states:
1. The International Union for Conservation of Nature and
Natural Resources shall perform the continuing bureau duties
under this Convention until such time as another organization
or government is appointed by a majority of two-thirds of all
Contracting Parties.
2. The continuing bureau duties shall be, inter alia:
a. to assist in the convening and organizing of
Conferences specified in Article 6;
b. to maintain the List of Wetlands of International
Importance and to be informed by the Contracting
Parties of any additions, extensions, deletions or
restrictions concerning wetlands included in the List
provided in accordance with paragraph 5 of Article 2;
c. to be informed by the Contracting Parties of any
changes in the ecological character of wetlands
included in the List provided in accordance with
paragraph 2 of Article 3;
d. to forward notification of any alterations to the
List, or changes in character of wetlands included
therein, to all Contracting Parties and to arrange for
these matters to be discussed at the next Conference;
e. to make known to the Contracting Party concerned,
the recommendations of the Conferences in respect of
such alterations to the List or of changes in the
character of wetlands included therein.
The Parties to the Antarctic Treaty and its 1991 Environmental
Protocol (S. Treaty Doc. 102-22) also actively engage with scientific
bodies in the implementation of those instruments. The Scientific
Committee on Antarctic Research (SCAR), a subentity of the
International Council for Science (ICSU), is an observer at Antarctic
Treaty and Environmental Protocol meetings and provides independent
scientific advice as requested in a variety of fields, particularly on
environmental and conservation matters. SCAR is able to play an active
and crucial role in the scientific collaboration between government and
private organizations to implement the Antarctic Treaty.
In addition, Annex V, Articles 5 and 6, to the Environmental
Protocol specifically grants SCAR a formal role in the designation and
review of specially protected and managed areas. The Protocol also
specifically grants SCAR observer status.
______
Responses of Deputy Director Scott M. Burns to Questions Submitted by
Senator Joseph R. Biden, Jr.
Question. Do you believe that there should be one national
antidoping standard for all professional sports? Will this Convention
contribute to the establishment of a uniform standard for professional
sports despite the fact that the doping-control provisions do not apply
to professional sports in the United States? If so, how?
Answer. The antidoping policies of the professional sport leagues
in the United States are not regulated by the Federal Government. As
private sector enterprises, the leagues are responsible for
establishing policies to combat and deter drug use among players.
Consequently, the Convention does not apply to professional sport
leagues in the United States.
Nevertheless, the administration has clearly stated that drug use
among professional athletes in the United States is a serious issue and
the leagues have an obligation, particularly to young people, to make
efforts to curb drug use in sport. Further, the administration has
consistently indicated that the World Anti-Doping Code and the
principles articulated in the Convention represent the ``gold
standard'' in combating drug use in sport. The professional leagues are
encouraged to adopt the balanced principles set forth in the Code and
Convention.
As an increasing number of sport organizations and governments
around the world agree to harmonize antidoping standards, the
professional leagues in the United States may be inclined to adopt the
standard that is currently accepted by nearly 600 sport organizations
worldwide, including all the Olympic and Pan American Sports in the
United States. Hence, we believe the Convention does contribute to
establishing uniform standards for professional sports.
Questions. Article 2(4) of the Convention defines Athlete for
education and training programs to be ``any person who participates in
sport under the authority of a sports organization.'' The term ``Sports
Organization'' is then defined in Article 2(20) as ``any organization
that serves as the ruling body for an event for one or several
sports.''
a. Can you explain what this means? Please explain how one
evaluates whether an organization is a ruling body or not.
Answer. The national Olympic Committee (e.g., United States
Olympic Committee) or International Olympic Committee
determines what entity is the ruling organization for each
sport on the national and international level, respectively.
b. Do other countries share this understanding of what a
``ruling body'' is?
Answer. Yes, this is a universally recognized and accepted
decision in the international sport community.
c. Could this definition include, for example, high school
athletes?
Answer. Yes.
d. Is it correct that this definition of athlete (i.e., for
education and training programs) is intended to be broader than
the definition of athlete that also appears in Article 2(4),
which is for the purposes of doping control? If so, explain
which athletes are covered in the broader definition of athlete
(i.e., for education and training programs), which are not
covered in the definition of athlete for purposes of doping
control.
Answer. Yes. The definitions were drafted so that a larger
pool of participants receives antidoping education and
training. This approach will help educate a larger number of
participants on the dangers of doping before they potentially
reach the point where they may be competing nationally or
internationally.
In the United States, for example, the Government is not
responsible for drug testing athletes or providing antidoping
training. Consistent with Article 7 of the Convention, we
intend to utilize the efforts of a nongovernmental agency, the
United States Anti-Doping Agency (USADA), to meet such
obligations. Under USADA protocols, only athletes that are
likely to compete at the national or international level of
competition are placed in a USADA registered testing pool and
subject to drug testing. However, the scope of athletes that
receive antidoping education is far broader and includes
participants who compete in sport events or programs sponsored
by a sport authority. Thus, for example, amateur athletes
competing in USA Wrestling-sponsored tournaments may receive
antidoping education. However, unless the athletes have been
identified as national or international-level competitors, they
would not be subject to USADA's doping controls.
Question. Appendix I of the World Anti-Doping Code defines a
variety of terms including ``Athlete.'' In relevant part this
definition states that ``for purposes of antidoping information and
education, any Person who participates in sport under the authority of
any Signatory, government, or other sports organization accepting the
Code is an Athlete. How does a sports organization formally accept the
Code?
Answer. A sports organization commits in writing to the World Anti-
Doping Agency that it has accepted the Code and agrees to implement the
applicable provisions of the Code in its policies, statutes, rules, and
regulations. A copy of a draft ``acceptance'' form is attached hereto.
Question. Is there a list of sports organizations that have
accepted the Code? If so, who manages this list and is this list
readily available?
Answer. Yes, the list is managed by WADA and available on the
agency's Web site: www.wada-ama.org. A copy of the list of the nearly
600 organizations that have accepted the Code to date is attached.
Question. When the term ``sports organization'' is used in the
Convention, is it understood that the term is only referring to sports
organizations that have accepted the Code?
Answer. Yes.
Question. Article 3 of the Convention obligates States Parties to
``adopt appropriate measures'' that are ``consistent with the
principles of the Code.'' Article 16 provides that parties ``undertake
to support the important mission of the World Anti-Doping Agency.''
Yet, there are critics of WADA and the Code, who 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
mislabelled nutritional supplements.\1\ What is your response to these
criticisms?
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\1\See, e.g., Michael A. Hiltzik, ``Athletes' Unbeatable Foe,'' Los
Angeles Times, December 10, 2006, available at http://www.latimes.com/
news/nationworld/nation/la-sp-doping10dec10.0.262
7563.full.story?coll-la-home-headlines.
Answer. The United States Government, as well as the United States
Olympic Movement, played a significant role in drafting the first
version of the Code which came into force on January 1, 2004, and the
second version which was adopted in November 2007 and will come into
force on January 1, 2009. We believe that the Code is tough on drug
cheats, but equally importantly, the Code's principles are fair. Some
stakeholders argue that the Code's sanctions and the measures required
of signatories are too weak and do not go far enough to deter and
combat doping in sport. Still others maintain that the Code is too
harsh and is excessively stringent. We believe that the Code strikes a
careful and appropriate balance. Further, ONDCP has served in
leadership roles in WADA since the agency was created and has closely
observed the manner in which the Code has been applied. We do not share
these criticisms regarding the excessive nature of punishments being
dispensed as a result of the Code.
It is also important to note that the revised version of the Code
that the WADA Foundation Board unanimously adopted in November 2007 at
the Third International Conference on Doping in Sport includes a
greater flexibility as it relates to sanctions. This added flexibility
is designed to further promote fairness. For example, cases involving
aggravated circumstances (large doping scheme, multiple prohibited
substances, athlete engaged in obstructive conduct) are now subject to
enhanced sanctions. Lessened sanctions are now possible where an
athlete can establish that the substance involved was not intended to
enhance performance. Furthermore, the revised Code states that the
``Prohibited List'' may identify specified substances which are
particularly susceptible to unintentional antidoping violations because
of their general availability in medicinal and other products or which
are less likely to be successfully used as doping agents. Where an
athlete establishes that use of such a specified substance was not
intended to enhance sport performance, a doping violation may result in
a reduced sanction (at a minimum a warning and reprimand and no period
of ineligibility, and at a maximum a 1-year ban). The United States
Government supports this increased flexibility.
Question. Given WADA's role in implementing the Convention it is
important that WADA be seen as sufficiently independent and transparent
in its decisionmaking. Is it your view that there is sufficient
independence and transparency in WADA's decisionmaking?
Answer. Yes. The decisionmaking process at WADA is balanced,
deliberative, and transparent. The United States believes that it has
been fairly included in the decisionmaking process and fully expects
that independence and transparency will only increase during the 6-year
term of recently elected WADA President John Fahey, of Australia.
Question. What was the U.S. contribution to WADA for calendar years
2005, 2006, and 2007? What is the U.S. contribution to WADA for
calendar year 2008? Do you expect a significant increase in the U.S.
assessed contribution to WADA in future years, because of the entry
into force of the Convention?
Answer. The United States Government has made the following
contributions to WADA: CY 2005--$1,450,179; CY 2006--$1,620,821; CY
2007--$1,669,446; CY 2008--$1,700,000.
The WADA budget process is separate from the UNESCO budgetary
process. WADA's annual budget is approved by the agency's Executive
Committee and Foundation Board. The Convention entered into force in
2007. Since that time, the WADA budget has not significantly increased.
We do not expect significant increases in the future. Much of WADA's
role involving the Convention is ongoing and already funded within
WADA's budget. The United States would use its leadership positions on
the Finance Committee, Executive Committee, and Foundation Board to
resist and oppose any unnecessary and reckless budget increases.
Questions. Article 34 of the Convention sets forth a fast-track
amendment procedure for the two annexes to the Convention--Annex I is
the Prohibited List and Annex II is the Standards for Granting
Therapeutic Use Exemptions. The World Anti-Doping Agency (WADA) also
has a ``Prohibited List'' and a list of ``Standards for Granting
Therapeutic Use Exemptions.'' Paragraph 1 of Article 34 states that if
WADA modifies either of these lists for its purposes, it may inform the
Director General of UNESCO, who in turn will propose to the States
Parties amendments to the annexes of the Convention that reflect the
modifications made by WADA. A State Party then has 90 days within which
to inform the Director General that it does not accept an amendment or
it will enter into force for that State Party, if the amendment has not
been obiected to by two-thirds of the States Parties.
a. Please explain in detail the process by which the lists
maintained by WADA are modified. In your explanation, be sure
to include how long this process generally takes and to what
extent the United States participates in the process.
Answer. The International Standards are aimed at bringing
harmonization among antidoping organizations responsible for
specific technical and operational parts of antidoping
programs.
The Prohibited List is reviewed and updated annually by WADA
through a year-long consultative process involving stakeholder
feedback and input from groups of international scientific and
antidoping experts. A Prohibited List Working Group is
specifically tasked with recommending changes to WADA's
Executive Committee and facilitating stakeholder input. A
representative from the United States chairs the seven-member
committee. In addition, a second member of the group is from
the U.S. Food and Drug Administration. The United States has
one of five government votes on the Executive Committee to
approve any changes to the List.
The International Standards for Granting Therapeutic
Exemptions (ISTUE) is to ensure that the process of granting
Therapeutic Use Exemptions (a process to alloy athletes to take
medicines on WADA's Prohibited List to treat an athlete's
illnesses or medical condition) is harmonized across sports and
countries. The ISTUE came into force in January 2004.
Concurrent to the revision of the Code, WADA launched a process
in 2006 for updating the ISTUE to build upon the experience
gained by WADA and its stakeholders and to improve the
protocols and processes.
The review process for updating the ISTUE involved three
formal rounds of consultation. Based on stakeholder feedback
and consultations with the legal and scientific committees, a
draft was circulated in 2007. After a period of public comment
and a series of meetings a second draft was released.
Subsequently, WADA's Executive Committee unanimously voted to
approve the revised ISTUE at its May 2008 meeting. The United
States, as a member of the Executive Committee, voted to
approve the ISTUE. Comments from USADA regarding the technical
revisions were accepted by WADA and incorporated into the
revised ISTUE.
The revised standard will come into force on January 1, 2009.
WADA has no plans to revise the ISTUE in the next several
years.
b. Given the short time period for rejecting proposed
amenndments to the annexes that have been proposed pursuant to
the procedure in Article 34, what is the process that the U.S.
Government intends to follow in responding to such proposed
amendments?
Answer. The U.S. Government believes 45 days will be
sufficient to coordinate with relevant Federal agencies and
assess amendments to the annexes. Nevertheless, given the U.S.
Government's active participation in WADA, we will receive
notice of any potential amendment many months in advance of
when the 45-day clock will begin to toll. Given the number and
diversity of WADA's stakeholders, WADA procedures provide
several months of consultations prior to any proposal and
enactment of any amendments to the documents contained in the
annex.
c. Have the lists maintained by WADA been modified since the
Convention was initially adopted in 2005?
Answer. The Prohibited List is updated annually. The World
Anti-Doping Code, International Standards for Laboratories, and
the International Standards for Testing have not been modified
since coming into force on January 1, 2004. Each of these
documents was updated during a year-long process in 2007 and
revised versions will take effect on January 1, 2009. No plans
exist to modify these standards in the next several years.
d. Have the two annexes to the Convention been amended since
the Convention entered into force?
Answer. The International Standards for Therapeutic
Exemptions has not been modified since coming into force on
January 1, 2004. A revised ISTUE will come into force on
January 1, 2009. As previously described, the Prohibited List
is updated annually.
e. If the annexes to the Convention have been amended:
i. How many times have the annexes been amended?
Answer. The International Standards for Therapeutic
Exemptions has not been modified since coming into
force on January 1, 2004. A revised ISTUE will come
into force on January 1, 2009. As previously described,
the Prohibited List is updated annually.
ii. Were the amendments done in accordance with
Article 34?
Answer. Yes.
iii. Are the two annexes that were transmitted to the
Senate the current version of the annexes in force for
States Parties to the Convention?
Answer. The version of the International Standards
for Therapeutic Exemptions provided to the Senate is
currently in force for States Parties.
The version of the Prohibited List provided to the
Senate was the version in force for States Parties at
the time it was transmitted. Subsequently, a 2008
version came into force on January 1, 2008. The current
version of the list is attached hereto. [See Annex I of
the Report.]
Question. Article 32(2) of the Convention states that at the
request of the Conference of Parties, the Director General of UNESCO
``shall use to the fullest extent possible the services of the World
Anti-Doping Agency. . . .'' It is not common for a nongovernmental
organization to play such a crucial role in implementing a treaty.
Please explain why this arrangement is advantageous.
Answer. Governments, including the United States, pressed for the
creation of a world antidoping organization because they believed that
the best opportunity to combat drug use in sport involved governments
and the sport movement combining their expertise and resources and
working collaboratively and cooperatively. Governments and the Olympic
Movement govern and fund WADA on an equal basis. The current WADA
President is a government representative, and all working committees
are comprised of 50 percent membership from the governments.
Governments, in drafting the Convention, believed that given WADA's
technical expertise and the unique nature of doping, it would he
advantageous to utilize the existing resources available from WADA.
Governments believed that utilizing WADA was more effective and
efficient than providing additional funding to UNESCO for that agency
to hire additional staff and develop the capacity and expertise to
provide antidoping services. It is important to note that the nature
and scope of WADA's involvement is at the request of the Conference of
Parties to the Convention. WADA has no independent authority relating
to the Convention.
Question. As medical advances have been made and more performance-
enhancing substances have emerged, how have the potential health risks
associated with doping in sport changed, if at all?
Answer. Many doping substances have pernicious health effects on
athletes. The dangers of anabolic steroids for nonmedical use, for
example, are becoming increasingly well known. As science evolves and
athletes turn to substances such as human growth hormone and gene
doping, the health consequences are not only potentially grave, but
often not fully known.
As a result, Articles 24, 25, and 26 of the Convention address
antidoping research. In order to learn about the potential health
risks, innovative research is essential. The Convention calls upon
Parties to share research results among governments, where appropriate.
The United States fully supports vigorous research activities as
part of a balanced antidoping program. Government funds to support WADA
and USADA are directed to support research activities of both those
organizations. In addition, the National Institute on Drug Abuse also
expends significant resources on research involving doping substances.
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