Doping and Anti-Doping Policy in Sport

Ethical, Legal and Social Perspectives

Mike McNamee, Verner Møller, Mike McNamee, Verner Møller

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136661075
• Edition: 1
• Topic: Jura
• Subtopic: Medien- & Unterhaltungsrecht

The issue of doping has been the most widely discussed problem in sports ethics and is one of the most prominent issues across sports studies, the sports sciences and their constituent disciplines. This book adds uniquely to that catalogue of discourses by focusing on extant anti-doping policy and doping practices from a range of multi-disciplinary perspectives (specifically ethical, legal, and social scientific).

With contributions from a world-class team of scholars and legal practitioners from the UK, Europe and North America, the book explores key contemporary issues such as:

• sports medicine
• international doping policy
• the whereabouts system
• the criminalization of doping
• privacy rights, gene doping and ethics
• imperfection in doping test procedures
• steroid use in the general population.

Doping and Anti-Doping Policy in Sport offers an important critique of contemporary anti-doping policy and is essential reading for any advanced student, researcher or policy maker with an interest in this vital issue.

1 Ethico-legal aspects of anti-doping policy

Mike McNamee and Lauri Tarasti

Doping: Ethical and Juridical Responses

Over the last 30 years, there has been steady and growing scepticism with regard to the justification of anti-doping policies. It has arisen in a variety of academic and professional milieus, from sports medicine (Kayser and Smith 2008), medical ethics (Foddy and Savulescu 2007) and sports technology (Miah 2005; Magdalinski 2009). Sometimes it has been motivated by a philosophical scepticism regarding the internal coherence of anti-doping, whereas, at other times, it has focused on the apparent inconsistencies between anti-doping postures and analogous practices that are permissible in sports. Although debates have typically focused on the legitimacy of the use of steroids, genetic manipulation and other forms of illicit performance enhancement, little discussion has been had of the interface between law, medicine and ethics as they converge in elite sports and sports medicine.

Doping continues to achieve greater levels of sophistication. It might be that there are reasons for employing a looser and less intrinsically negative term than doping. Certainly, sceptics may argue that the term is so pejorative that those engaging in behaviours that potentially fall under it are already cast in negative terms, if not condemned. Occasionally, it is used to capture any form of physical enhancement, which is scarcely conducive to subtle or complex debates. Clearly, there are a wide variety of uses of medicines, vitamins, health pills, additional nutrients, hormones, steroids, the manipulation of blood products (referred to as ‘blood spinning’ by those sceptical of the legitimacy of the technique, and ‘platelet rich therapy’ by advocates), in the future possibly gene technology, and other means aimed at improving results or performance ability by changing the biochemical systems of the body. Any of these techniques might, under given conditions, be called doping, and this is just a conceptual problem we may have to live with in policy debates. Given, however, the focus on doping in this book, we shall refer to it throughout using that term and use what we take to be uncontentious examples.

Doping is not a phenomenon restricted to elite ‘athletes’. Rather, it is widespread throughout the world of sports and beyond, especially among those who merely engage in activities such as physical conditioning for aesthetic or lifestyle reasons (Monaghan 2003). This development corresponds roughly to the general change in social attitudes to pharmacological products in the West, which in turn depends partly on the equally emergent attitudes that are accepting of non-therapeutic goals of medicine. The markets are seemingly flooded with medical products for the prevention of psychological and societal ills, from ageing, alcoholism and depression, to the prevention of pregnancy. As Parens (1988) has argued, better is not always good. Athletes provide role models for society, and their better performances are not good when their record-breaking feats are not the product of what Murray calls the ‘virtuous perfection of our natural talents’ (Murray 2008).

Developing authoritative ethical and legal responses to the use of doping is not easy, not merely because of the theoretical heterogeneity of ethics, but because of the challenges ethical postures have traditionally created for the law. In this chapter, we explore some original arguments concerning the legal peculiarities of anti-doping legislation and their ethically salient features in terms of:

• guilt and related concepts;
• aspects of punishment;
• un/ethical means of legal defence;
• the taking into account of previous offences when imposing sanctions; and
• the issue of privacy in anti-doping practice and policy.

The Ethics of Doping and the Rise of Harmonized Policy

Even sports devotees understand that many, and perhaps most, of their sporting heroes enjoy their elevated social and economic status, not merely for their extensive physical and psychological preparation, but also as a result of chemically assisted training, whether in terms of legitimate nutritional supplements or doping products and processes. It is only what is referred to as ‘doping’, a pejorative term that emerged from descriptions of those who were addicted to opium (Fost 2008), that is considered illegitimate in the vast majority of elite sports. One cannot say that this is true of all sports. Notably, for example, professional baseball in the USA does not disallow the use of steroids for performance enhancement. Much ink has been spilt over the status of Barry Bonds, who broke the all-time record for home runs while openly using steroids, which would be banned in any sport signed up to the World Anti-Doping Code (WADC). Even Barack Obama (Obama 2009) has joined the public debate, decrying their use in the same sport. Not only athletes but also the general sports-viewing public understand that the risks to health are high in elite sport, whether performances are procured within or without the rules. In general, however, we can say that elite athletes and those who perform at more modest levels are not in favour of a libertarian approach per se.

There have been several sceptical challenges (Tamburrini 2000; Foddy and Savulescu 2007; Kayser and Smith 2008) to the legitimacy of the anti-doping position arising from philosophers working in the fields of both medical ethics and sports ethics. They argue, typically, that the bans on certain performance-enhancing processes and substances rest on principles that are inconsistently applied (Brown 2007; McNamee 2008: 177–93). Sport, it is widely canvassed, is about healthy, natural and ethically regulated activity. WADA itself employs three criteria, of which at least two must apply, in order for a product or process to be proscribed: it should be performance enhancing; it should present an actual or potential health risk; and it should violate the spirit of sport (WADA 2009: Article 4.3). Although there is no objection to performance enhancement per se, it is the latter two problematic means that are the object of prohibition in conjunction with the former. In response, sceptics typically argue,

1. that doping is no more unnatural than the muscle-bound and technologically saturated athletes and their equipment, prostheses, stadia and so on;
2. that doped athletes no more coerce their opponents than do their training-mad, but non-doped, competitors;
3. that doping is no more harmful than other behaviours that are legimited, such as punching in boxing, or brutal tackling in rugby or American football; or
4. that doping confers no more of an unfair advantage than is enjoyed by athletes or teams from economically or technologically superior countries or sports clubs/systems.

A more passive case made by the anti-doping lobby is that, by failing to proscribe socially undesirable behaviours, it would celebrate bad role models and promote undesirable lifestyles. Such a stance is consistent with widely shared public health policies against smoking or the use of marijuana, even though it only (potentially) harms the users themselves.¹ To this, the sceptics’ rebuttal is that the undesirability of doping would be chimerical if anti-doping rules were repealed and not forced wrongfully upon athletes seeking only to enhance their performance and optimize their own athletic potential, while only (potentially) harming themselves. It is, of course, true that each of these sceptical challenges has some merit. In addition, it is possible in the future that the ethical legitimacy of doping control may partly collapse if undetectable gene technology comes into widespread use. It could be argued, however, that these sceptical challenges are largely redundant because, most importantly, the sporting practice communities (MacIntyre 1981)² themselves have rejected doping through their engagement in the processes of the formulation of anti-doping policies and practices. Whether the official decisions made by international sports federations democratically reflect the views of practitioners in the field is not something known in any detail, though we assume here, in the absence of wholesale outcries from athletes themselves, that this is a reasonable assumption. Certainly, there has been a large and voluble lobby, across sports (especially individual sports such as athletics), of sportsmen and women castigating doped athletes who have been caught.

In addition to athletes, as well as national and international sports organizations, governments too have taken a strong position against doping. Although it is true that we wish to endorse anti-doping postures and policies, for present purposes we merely note the inter-governmental legitimacy of the World Anti-Doping Code, signed up to by 186 nations and 570 national and international sports organizations. We proceed to draw out the ethical and juridical peculiarities of their legislation, having set out its general contours. The goal of harmonization achieved by WADA in their 2009 code does not meet with universal approval, of course.

Nevertheless, nearly all international sports federations have signed up to the WADC. Concerning doping, therefore, WADA and the WADC enjoy a hegemonic position with respect to medical, policy, scientific as well as juridical matters. The WADC is predicated upon the evidence of sports medicine and sports science experts, who determine which substances or processes are to be classified as doping and thus prohibited. The determination of the list of prohibited substances and methods in connection with the WADC is juridically final. This position is the default, as it has never been challenged in any court. Anti-doping rules are juridical norms and belong to the area of sports law (Houlihan 2002; Blackshaw et al. 2006; Siekmann and Soek 2007), the relationship of which with public legislation is not always clear.

Between the WADC and State Legislation

Subtle and complex relations hold between WADA and international agencies such as UNESCO and INTERPOL, with whom they have formal agreements. Nevertheless, WADA is a private foundation, although it is administrated and financed on an equal footing by governments and sports federations (SFs) alike. One consequence of this status is that the juridical norms of the WADC are not generally binding, but rather have governance only over those sports organizations that are signatories to the WADC. This being the case, it is no surprise then that WADA itself does not enforce the WADC nor punish athletes who commit offences. This is carried out by the SFs, though WADA has in the past challenged rulings by SFs where these were thought to be lenient. National SFs typically fall under the jurisdiction of international sports federations (ISFs) and, where relevant, the IOC.

Although nearly all major SFs today have their own anti-doping rules, the WADC nevertheless obliges them to apply the obligatory articles of the WADC as such and also, more generally, to follow the principles of the WADC. In this way, the juridical norms of the WADC concern, not only the athletes, but also other people taking part, in one way or another, in the sport concerned under the jurisdiction of a signatory of the WADC. This development is a response to the palpable fact that the athlete is thought to engage in doping as part of a systemic effort between coaches, masseuses, physicians, physiotherapists, team management and so on. The clearest uncovering of this systemic sports medicine and sports science development has been in the Tour de France 2006, where it is widely thought that the majority of professional teams were engaged in doping practices to some degree.³

A sports organization may impose a sanction for this violation in accordance with its rules. This is not a punishment in the same sense as in the criminal code, but is better thought of as a disciplinary consequence. These sanctions are limited to the powers of a private organization.⁴ So, if these doping rules are broken, the question is not typically one of a crime being committed, but rather the lesser one of a violation of the rules of a private organization.

Doping has been criminalized in many countries, especially in Europe, but only seldom outside Europe.⁵ A special, legally enforceable Act on doping has been issued in some countries of the member states of the Council of Europe, and in other member states some forms of doping are punishable as drug abuse or smuggling of medicines, or in some other way. A criminal court imposes sanctions in these cases. The most common form of punishment is a fine and, in some cases, imprisonment. It is important to note that doping has not, however, usually been defined in criminal codes exactly in the same way as in sport. Doping in criminal law is often more limited in scope than in sports legislation. For example, the WADC bans certain substances that have no unhealthy impact, simply because they act as masking agents that prevent the detection of banned doping substances.

In the WADC, a doping offence is referred to as an anti-doping rule violation. The validity of a violation is established by a sports tribunal that is convened by a national or international SF. Sanctions normally take the form of ineligibility and the loss of medals, prize money and so forth. These are rights to compete and reward that are internal to the sport and its governance. In cases of dispute, and in accordance with the WADC, the CAS will arbitrate between the parties. It is noteworthy that this is obligatory in cases of anti-doping under the auspices of the WADC, whereas in other disputes both parties must normally consent for the case to be heard there and to abide by its rulings.

Anti-doping rules of sports organizations have emerged within the sphere of private law and, in most cases, remain there. The state gives its norms by legislation. Only public authorities have the power to issue generally binding norms. If somebody breaks these binding norms, they will be sentenced in a state criminal court, if the violation of the norms is considered a criminal act. State authorities have the right to use coercive powers, such as search and seizure, as well as Internet investigations in accordance with law when it is necessary for the detection of crimes, to prosecute the case by hearing whomever they call, and so on. State authorities can also execute the punishments with force, for example by collecting fines or denying the liberty of those prosecuted through the execution of their laws.

The differences between public law and private law and their respective procedures keep them juridically distinct in principle. On the one hand, sports organizations or their tribunals apply their anti-doping rules with disciplinary sanctions, whereas, on the other hand, criminal courts apply the state law concerning doping punishments. One significant consequence of this dual legal economy has been that the same anti-doping violation can today be, and often is, punishable both as a crime in a criminal court and as a disciplinary offence in a sports organization or its tribunal (or a surrogate, such as the CAS (Tarasti 2007)). The incidence of these cases has increased greatly in recent years, for many reasons. More countries have included doping offences in their criminal legislation, the supervision of doping offences has expanded, and, where previously only athletes were punished, now the focus is also on the elite sports support system, including sports physicians. This dual legal economy – the processes in accordance with state legislation and in accordance with the sports organization’s anti-doping rules – has sometimes seen the processes become mixed with each other.

A cursory examination of this confluence can be found in the following recent and high-profile examples. The Tour de France doping scandal in cycling, in 1998, which started from police investigations,⁶ and the Chinese doping scandal in swimming, in 1998, which started from Australian customs officers’ seizu...