*Alex Robinson
I. Introduction
The 2024 Summer Olympics performance may be firmly in the public’s rearview mirror, but the United States is not done with tension-filled showdowns on the international stage.[1] The 2021 and 2024 Summer Olympics featured dozens of Chinese swimmers who tested positive for banned substances but were ultimately cleared to compete by the World Anti-Doping Agency (WADA) under suspicious circumstances.[2] As a result, the swimmers played a crucial role in China’s tie with the United States for the most gold medals in Paris.[3] Frustrated by WADA’s decisions to clear the swimmers and the acquiescence of the International Olympic Committee (IOC), Congress[4] and the Department of Justice (DOJ) took action.[5]
The 2026 Winter Games and the United States’ responsibility to host two upcoming Olympic Games complicates Congress’ and the DOJ’s bold confrontation.[6]
II. The State of International Doping in 2024
International competitions such as the Olympics involve a complex network of national and global organizations.[7] Generally, participating countries’ governing bodies coordinate with their international counterparts.[8] For example, the United States Anti-Doping Agency (USADA) coordinates with WADA.[9] Founded in 1999, WADA was created to serve as a consistent “backstop” when domestic anti-doping authorities fail to properly police athletes.[10]
As a result of Russia’s 2014 state-run doping program scandal, the United States passed the Rodchenkov Anti-Doping Act (the Act).[11] The Act assigns criminal sanctions to individuals who assist athletes in doping for international competitions.[12] According to the Act, the DOJ has jurisdiction when an international competition enters into a sponsorship deal with an American company or broadcasts in the United States.[13] The Act’s first prosecution occurred in 2023, when Eric Lira obtained and provided banned substances to athletes who intended to compete in the 2021 Tokyo Summer Olympics.[14] Mr. Lira unsuccessfully attempted to dismiss his case on constitutional grounds and was ultimately sentenced to three months of incarceration and a $16,000 fine.[15]
III. WADA and the Positive Tests
On multiple occasions over the last eight years, WADA disclosed that several Chinese Olympic swimmers tested positive for banned substances.[16] China’s national anti-doping agency offered various excuses for the positive tests, such as contaminated hamburgers and tainted hotel kitchens.[17] While the explanatory theories and chains of custody for the tests raised eyebrows, WADA nonetheless cleared the swimmers for international competition.[18] At the Tokyo games, five Chinese swimmers linked to positive tests won multiple medals, including three golds.[19] Of China’s twelve swimming medals in Paris, nine of the races involved swimmers who tested positive with little follow-up.[20]
WADA’s decision to clear the swimmers ahead of the Paris games sparked a public outcry.[21] In April 2024, WADA invited Eric Cottier, a seasoned Swiss lawyer[22], to be an “independent prosecutor” and conduct a “thorough review” of WADA’s decisions.”[23] USADA released a harshly worded press release in response, describing Mr. Cottier as a “hand-picked lawyer with a limited and self-serving scope of review” and asserting that WADA was “trying to pull the wool over our eyes.”[24] Months later, Mr. Cottier cleared WADA, finding there was no evidence that suggested “favouritism or deference” towards the Chinese swimmers.[25]
IV. Congressional Response
In May 2024, the House Select Committee on the Chinese Communist Party (the Committee) wrote to the DOJ and IOC.[26] In the DOJ letter, the Committee asked Attorney General Merrick Garland and FBI Director Christopher Wray to invoke the Rodchenkov Anti-Doping Act so the “Chinese swimmers and a cover-up” could be investigated.[27] The IOC letter stated that the House Committee was “deeply concerned” about WADA’s “glaring lack of transparency” and “inadequate response” to clearing the Chinese swimmers, asking the IOC to take “swift, decisive, and fully transparent action to address this serious matter.”[28]
The following month, the House Energy and Commerce Oversight and Investigations Subcommittee held hearings regarding WADA’s clearance decisions.[29] Michael Phelps, the most decorated Olympian in history,[30] testified and excoriated WADA for its negligence.[31] The next day, several House members stated that they looked “forward to the Justice Department’s briefing and investigation into this matter.”[32] Weeks later, a bipartisan group of lawmakers introduced a bill that could reduce or eliminate the annual $3.4 million the United States contributes towards WADA’s $50 million budget.[33]
V. The DOJ’s Response
In July 2024, the DOJ, publicly put on notice by the Committee’s letter and emboldened by Mr. Lira’s conviction, began criminally investigating WADA and the international authorities it works with.[34] Federal investigators approached Brent Nowicki, executive director of World Aquatics, the international governing body for swimming competitions that coordinates with WADA.[35] According to inside sources, the investigators asked Mr. Nowicki about how the Chinese swimmers’ positive tests were handled.[36] He was also served with a grand jury subpoena.[37] According to USADA’s Chief Executive Officer, WADA leadership now fears traveling to the United States because of the DOJ’s ongoing criminal investigation.[38]
VI. Conclusion
The controversy comes at an awkward time since the United States will host both the 2028 and 2034 Olympics.[39] To secure the winning bid for hosting the 2034 Olympics, Salt Lake City added a last-minute amendment to its host contract that required the United States’ “Olympic entities” to respect WADA’s authority.[40] While these disputes over urine samples may seem frivolous, international competitions are serious opportunities for world powers to wield “soft power.”[41] Athletic success in front of a global audience attracts attention, showcases values, and furthers a country’s influence.[42] In other words, some of the world’s most powerful organizations have justifiable reasons to care about particular kitchen counters and hamburger patties.[43]
With preparations for the 2026 Winter Games underway, American and Chinese athletes will be competing against each other for Olympic medals in a little over a year.[44] Based on past performance, the number of medals their respective countries will earn could be close—both secured nine gold medals in the last Winter Games.[45] Given the superpowers’ fierce rivalry, the upcoming Olympic Games, and the powerful organizations involved, this sprawling altercation is far from over.[46]
*Alex Robinson is a second-year student at the University of Baltimore School of Law. At school, he enjoys being a Law Review staff editor, a member of the Law School’s Honor Board, and a Law Scholar for Professor Kim Wehle. During his first-year summer, Alex served as a judicial intern to the Honorable Justice Shirley M. Watts at the Supreme Court of Maryland. Alex hopes to work on white-collar litigation and consumer protection issues in the future.
[1] See infra Parts III–VI.
[2] E.g., Michael S. Schmidt & Tariq Panja, China, Citing Tainted Burgers, Cleared Swimmers in a New Doping Dispute, N.Y. Times (July 30, 2024), https://www.nytimes.com/2024/07/30/us/politics/china-swimmers-doping-food.html.
[3] Leana S. Wen, The 12 medals that Chinese Swimmers Won in Paris will Forever be Tainted, Wash. Post (Aug. 12, 2024, 6:45 AM), https://www.washingtonpost.com/opinions/2024/08/12/olympics-china-swimming-doping-paris-2024/.
[4] See infra Part IV.
[5] See infra Part V.
[6] Michael S. Schmidt & Tariq Panja, F.B.I. and Justice Department Open Criminal Investigation in Chinese Doping Case, N.Y. Times (July 4, 2024), https://www.nytimes.com/2024/07/04/world/asia/china-swimming-investigation-doping.html.
[7] See Schmidt & Panja, supra note 2.
[8] See Schmidt & Panja, supra note 2.
[9] Schmidt & Panja, supra note 2.
[10] Schmidt & Panja, supra note 2; World Anti-Doping Agency, Olympics.com, https://olympics.com/ioc/wada (last visited Nov. 5, 2024).
[11] Kathleen Cooperstein & Colin Cloherty, Paris Olympics Signals DOJ Anti-Doping Enforcement in Process, Bloomberg Law, (July 24, 2024, 4:30 AM), https://news.bloomberglaw.com/us-law-week/paris-olympics-signals-doj-anti-doping-enforcement-in-process.
[12] Id.
[13] Id.
[14] Id.; Press Release, Dep’t of Just., First Defendant Charged With Violating Anti-Doping Act Pleads Guilty In Manhattan Federal Court (May 8, 2023), https://www.justice.gov/usao-sdny/pr/first-defendant-charged-violating-anti-doping-act-pleads-guilty-manhattan-federal-court.
[15] Cooperstein & Cloherty, supra note 11.
[16] Wen, supra note 3.
[17] Andrew Cesare Richardson, Chinese Swimmers’ Doping Allegations: What Drug was Involved, What has WADA Said, and What Might Happen Next, S. China Morning Post (Apr. 23, 2024, 6:30 PM), https://www.scmp.com/sport/china/article/3260018/chinese-swimmers-doping-allegations-what-drug-was-involved-what-has-wada-said-and-what-might-happen. The Chinese authorities offered theories that the swimmers tested positive through no fault of their own. Their position is not that the athletes took affirmative steps to consume or inject the banned substances; rather, the athletes unknowingly ate contaminated prepared food. For instance, a restaurant’s hamburgers contained beef from cows that were fed steroids. And an unkempt hotel kitchen sink or counter contained a banned substance that leached into the unsuspecting athlete’s meal. Various anti-doping experts have called these theories into question. Id.; see also Schmidt & Panja, supra note 2; Wen, supra note 3.
[18] Michael S. Schmidt & Tariq Panja, Top Chinese Swimmers Tested Positive for Banned Drug, Then Won Olympic Gold, N.Y. Times (Apr. 20, 2024), https://www.nytimes.com/2024/04/20/world/asia/chinese-swimmers-doping-olympics.html. China’s national anti-doping agency typically tests its swimmers shortly after the swim meet. The samples are then sent to an accredited laboratory for analysis, tracked on a computer management system, then reported to WADA. But in this instance, the results were not logged into the computer system until two and half months after the races. Id.
[19] Id.
[20] Wen, supra note 3.
[21] Schmidt & Panja, supra note 6.
[22] Graham Dunbar, WADA Defends Pick of Swiss Prosecutor Under Scrutiny in Review of Chinese Swimmers Case, Associated Press (Apr. 30, 2024, 2:06 PM), https://apnews.com/article/wada-chinese-swimmers-special-prosecutor-d8352b340f3ba1b3659e6e35d4f76720.
[23] WADA Invites Independent Prosecutor to Review its Handling of Chinese Contamination Case in Swimming, WADA (Apr. 25, 2024), https://www.wada-ama.org/en/news/wada-invites-independent-prosecutor-review-its-handling-chinese-contamination-case-swimming.
[24] Response to WADA’s Self-Serving Appointment of an “Independent” Prosecutor, USADA (Apr. 25, 2024), https://www.usada.org/statement/response-wadas-independent-prosecutor/.
[25] Independent Prosecutor Concludes WADA Showed No Bias Towards China and Decision Not to Appeal Chinese Swimming Cases was ‘Indisputably Reasonable’, WADA (July 9, 2024) https://www.wada-ama.org/en/news/independent-prosecutor-concludes-wada-showed-no-bias-towards-china-and-decision-not-appeal.
[26] Letter from the H. Comm. on the Chinese Communist Party to Honorable Merrick Garland, Attorney General, U.S. Department of Justice and Honorable Christopher Wray, Director, Fed. Bureau of Investigation (May 21, 2024), https://selectcommitteeontheccp.house.gov/sites/evo-subsites/selectcommitteeontheccp.house.gov/files/evo-media-document/SCC%20-%20Letter%20to%20DOJ.pdf [hereinafter DOJ Letter]; Letter from the H. Comm. on the Chinese Communist Party to Thomas Bach, President, International Olympic Committee (May 21, 2024), https://selectcommitteeontheccp.house.gov/sites/evo-subsites/selectcommitteeontheccp.house.gov/files/evo-media-document/SCC%20-%20Letter%20to%20IOC.pdf [hereinafter IOC Letter].
[27] DOJ Letter, supra note 26, at 1.
[28] IOC Letter, supra note 26, at 1.
[29] Ariel Cohen, Olympians Implore Congress to Act on Doping as Games Approach, Roll Call (June 25, 2024, 9:29 PM), https://rollcall.com/2024/06/25/olympians-implore-congress-to-act-on-doping-as-games-approach/.
[30] Michael Phelps, Int’l Olympic Committee, https://olympics.com/en/athletes/michael-phelps-ii (last visited Oct. 17, 2024).
[31] Cohen, supra note 29.
[32] Press Release, H. Comm. on the Chinese Communist Party, Moolenaar, Krishnamoorthi on Phelps, Schmitt, Tygart Testimony on PRC Doping (June 26, 2024), https://democrats-selectcommitteeontheccp.house.gov/media/press-releases/moolenaar-krishnamoorthi-phelps-schmitt-tygart-testimony-prc-doping.
[33] Michael Martina, US Lawmakers Threaten Cuts to Olympic Anti-doping Funds, Reuters (July 30, 2024, 5:33 PM), https://www.reuters.com/world/us/us-lawmakers-threaten-cuts-olympic-anti-doping-funds-2024-07-30/.
[34] DOJ Letter, supra note 26, at 1; see Cooperstein & Cloherty, supra note 11; Schmidt & Panja, supra note 6.
[35] Schmidt & Panja, supra note 6.
[36] Schmidt & Panja, supra note 6.
[37] Schmidt & Panja, supra note 6.
[38] Schmidt & Panja, supra note 6.
[39] Lisa Riley Roche, Inside the Last-minute Drama that Brought Changes to Utah’s Olympics Bid, Deseret News (July 24, 2024, 4:23 AM), https://www.deseret.com/utah/2024/07/24/utah-2034-winter-olympics-bid-presentation-changes-doping/.
[40] Id.
[41] Hans Erik Næss, A figurational approach to soft power and sport events. The case of the FIFA World Cup Qatar 2022™, Frontiers in Sports and Active Living, (Apr. 6, 2023), https://www.frontiersin.org/journals/sports-and-active-living/articles/10.3389/fspor.2023.1142878/full.
[42] Id.
[43] See supra Part III.
[44] David Rubio Salguero, Cortina 2026 Preparations Gather Pace, Inside the Games, (Feb. 26, 2024), https://www.insidethegames.biz/articles/1143944/milan-cortina-26-preparation-accelerates.
[45] Beijing 2022 Medal Table, Olympics.com, https://olympics.com/en/olympic-games/beijing-2022/medal (last visited Sept. 3, 2024).
[46] See supra Parts III–V.
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