LEDA at Harvard Law
DOPING IN SPORT: AN OVERVIEW AND ANALYSIS OF DOPING AND ITS REGULATION IN INTERNATIONAL SPORT
FOOD AND DRUG LAW
PROF. PETER BARTON HUTT
MAY 16, 2003
At an early age, every one of us learns to despise cheating. Whether it be on the playground or in the classroom, cheating is wrong. Even as we grow up and appreciate the nuances of competition in business and in social interaction, there remains in us something of that child-like hatred of the cheater. We no longer play kickball on the playground and instead we fill stadiums to watch Olympic athletes perform Olympian feats of strength, speed and endurance, yet still we cling to a notion that sporting competition ought to be fair, pure of dishonesty and cheating. While we enjoy to see fierce competition and amazing athletic performance, when it comes to a steroid-fueled Ben Johnson winning the 100 meter race in Seoul or man-like Chinese female swimmers racking up world records, the use of performance enhancing techniques, whether it be drugs or blood transfusion robs the joy from the enjoyment of sport. Examples of doping abound in almost every sport, with every international competition comes more news of athletes caught using banned substance. At a foundational level, the cheating spoils something. It makes the sport and the competition merely an illusion. It works to destroy both the sport and the athletes competing.
This paper explores the depths of the effort we, as a society, are willing to go in order to preserve the essence of fairness in competition and to protect those that compete. It lays out a comprehensive description of the state of doping and its regulation in the modern Olympic Movement. It describes the past, present and future of doping in international competition. This paper does not address professional sport leagues, where doping issues are also prominent, because doping regulation is normally a negotiated part of an employment agreement. Leagues negotiate with players unions and devise a mutually agreeable system. Such systems do not reach the scope and complexity of the international sports effort. The Olympic Movement, all of the sports that comprise Olympic competition and occur in international games between countries, represents a far more complex and difficult regulatory challenge. In fact, the lessons learned in the Olympic Movement’s regulation of doping might prove of value in professional sport doping regulation.
There are seven parts to this paper. Part I presents the technical definition of doping in the Olympic Movement. It describes some of the most common drugs and practices that athletes use to enhance performance. Part II investigates the effect of doping on sport and explanations for why there is such a strong interest in keeping sport doping free. Part III describes the history of doping in sport and considers why athletes have risked and still do risk bodily harm by engaging in doping. Part IV outlines the history of anti-doping regulation, identifying the relevant organizations and their role in regulation. It also puts forth the common tools used in doping regulation. Part V catalogs the many problems that have faced the regulatory effort and continue to face it. Part VI describes the new regulatory regime set to begin regulation of international sport in 2004 and created in response to the many problems associated with doping and regulation at the end of the 20th century. Finally, Part VII discusses the prospects for success of the regulatory project and touches on concerns regarding regulation in the future.
The magnitude of the anti-doping effort is staggering and this research paper attempts to provide a broad understanding of the many aspects of the effort. If one thing is patently clear, it is that we as a society are willing to take on a gargantuan endeavor to protect the institution and idea of sport. The anti-doping project touches all nations and all peoples and it captures the collective will of spectators around the world. At present, the project is in the midst of revitalizing itself with the creation of a new, independent overseeing body. This paper serves as an overarching summary of the project and as a step toward thinking about the future of anti-doping efforts.
In spite of the infamous nature of doping in the world of sport, the precise definition of doping can be difficult to specify. From casual discussion of doping in the Olympic movement to academic analysis of the doping phenomenon, commentators often liberally use the term without clearly defining the behavior that constitutes doping. Intuitively, doping seems to be a type of cheating, gaining an unfair advantage, but many sports spectators would be hard pressed to describe in detail what activities in particular should be called doping. High profile drug scandals bring steroids and supplements like androstenedione or ephedra into common usage in the public vocabulary, but for the most part, understanding of doping remains elusive to the layman. Informed minds can disagree as to what kinds of behavior involving performance enhancing substances ought to be defined as doping.
At the heart of the matter, the understanding of doping stems from differing conceptions of what harms might result from the usage of certain substances in connection with athletic activity. The conceptual determination of doping is a political question closely tied to society’s reasons for being concerned about doping. The International Olympic Commission (IOC) or other regulating agency must convert this political question into scientific answers. By defining the specific drugs and techniques of which usage constitutes a doping offense, the agency makes tangible the intuition many possess regarding doping. These scientific and political determinations are integral parts of moving towards a workable, functional understanding of doping. Having a functional understanding of doping is, in turn, the first step in creating an effective, popular regulatory regime for doping.
The IOC definition of doping reflects the importance of politics and science, as it contains both politically determined moral principals and scientific guidelines. This definition, as it appears in the Olympic Movement Doping Code, has been effective since January 1, 2000. (It currently governs doping efforts, but in 2004, a new agency with different, although materially similar definitions will succeed the IOC in regulating doping.) It states:
This definition shows the dual objectives of the IOC project. Part 1 of the definition states the IOC’s moral position on doping while Part 2 goes towards the categories of activities that violate anti-doping rules.
According to IOC literature published during the creation of the present doping regulatory regime, the principles that justify the fight against doping are:
In addition to describing the conceptual underpinnings of the doping definition, the IOC must, as suggested by part 2 of the doping definition, create lists of banned classes of substances, methods and manipulations in order to provide specific instructions to the medical experts enforcing the IOC’s anti-doping regulations.
The new World Anti-Doping Agency (WADA), which will be taking over for the IOC in doping regulation, defines doping on the basis of its banned list of substances. Any use, possession or distribution of banned substances is classified as doping. The banned list’s inspiration is similar to the IOC’s definition of doping in that it seeks to prevent performance enhancement and harm to athletes while adding a concept of the “spirit of sport.” In any case, the functional doping doctrine will not change significantly as the new list of banned substances and practices has not materially changed from the previous one.
This Part explores the scientific classification side of the doping issue while Part III discusses the justification for doping control. The following portion will discuss three broad issues: First, how does the IOC create the list of banned substances, etc. Second, what are the banned substances? Third, what effect do such substances have on the human body and how do these effects affect athletic competition? This information reflects the current state of IOC regulations on banned substances. As is apparent from the vast number of regulated substances, the IOC effort is difficult and extensive.
Before discussing the difficulties in creating a workable list of banned substances and practices, it bears mentioning that although some individual sporting federations have lists of banned substances and practices particularly suited to the sport that they govern, the IOC’s list had been the definitive and authoritative statement of policy. Following the World Anti-Doping Conference of 1999, the WADA was created and will take over this task from the IOC. The discussion here deals primarily with the WADA process but discusses the drug categories that the IOC has chosen to regulate, since WADA will continue to build upon the legacy of the IOC’s work. Certainly, the individual determinations of sports federations have powerful influences within the sports they govern, but in the Olympic movement sports world, the trend has always been heavily influenced by the IOC and in light of the increasingly international, top-down system emerging in wake of the World Anti-Doping Conference, it seems that WADA will step in and continue to be the eminent authority in the area.
WADA’s task is defined largely by past, current and future developments in medical science. In human history, technology has constantly been employed to improve our quality of life. In particular, advances in medicine largely have the goal of enhancing our lives by keeping us healthy a proportionately great part of our lives. To that end, medical science continues to pursue this goal and in today’s technology-steeped environment, new drugs seem to emerge daily as part of this pursuit. Doping in sport is a dynamic phenomenon, where new drugs are constantly appearing on the market, new properties of the massive number of existing drugs emerge over time and existing preparations of drugs and treatments become more refined over time.
These drugs and treatments affect the body in a multitude of ways, but all found their origin in the effort to make those who are unhealthy healthy again. However, these drugs, despite the intention of their design, may also be used on already healthy bodies to produce physical effects out of the ordinary for normal, healthy humans. In the case of performance enhancing substances and treatments, these physical effects have the potential to imbue athletes with abilities that would ordinarily be beyond their natural capabilities. In the same token, these substances and treatments have perfectly legitimate uses in medical practice outside of the sporting world and, in some cases, within the sporting world when an athlete might have a physical condition requiring treatment.
The nature of medical science creates two problems for WADA: First, it is difficult to keep pace of advances in drugs and medical practice. As WADA defines the specific drugs and techniques of which usage is a doping violation, the challenge is keeping pace with the ever expanding possibilities for doping that result from a rapidly advancing pharmaceutical industry. The second problem is tied to the first: Assuming that WADA is sufficiently aware of developments in the medical field, there is difficulty in determining what substances and practices help maintain the health of an athlete but do not enhance an athlete’s performance. The first of these problems is a scientific one and the second, while involving scientific research, also incorporates a political determination. These problems presented themselves to the IOC and they will continue to complicate WADA’s activities in this area.
In order to keep pace with medical developments, WADA coordinates global research on anti-doping research while simultaneously seeking out other medical research that complements the anti-doping effort. In addition, WADA also commissions research and may conduct research itself in areas determined to be relevant to anti-doping regulation. As the transition of doping regulation progresses, in the interim the task of compiling the actual list of banned substances remains with the IOC, which modifies the list based on recommendations from WADA. Eventually, WADA will oversee the list independently. The scope of WADA’s task is very broad. Not only must it coordinate directed research on anti-doping research, it must also evaluate whether seemingly unrelated research might have bearing on doping issues. Furthermore, it must administer internal research and research it commissions. To this end WADA will necessarily employ medical experts to evaluate scientific developments, keeping abreast of new technologies and new applications of old technologies as they relate to possible performance enhancing effects. In addition, they will aid in determining what drugs might be allowed in some amounts for athletes suffering from some sort of medical condition and if so, what amounts are acceptable. In essence, this aspect of regulation involves balancing the need for athletes to treat health problems with the possible performance enhancing benefits of a medication.
In order to appreciate the magnitude of the regulatory project as well as to understand exactly what behaviors constitute doping, one needs to understand some of the specifics of doping, in particular, the actual substances and practices that are not allowed in international athletic competition. Furthermore, understanding the great variety of substances that fall under regulations helps in comprehending the difficulties facing athletes as they makes choices about their medical treatment. Even if an athlete uses a legal drug for a legitimate health concern, it may be a violation of doping codes, since the performance enhancing effects might be great enough to outweigh the medicinal effects enjoyed by the athlete.
The information here is primarily intended to provide basic understanding of what general categories of substances/practices fall under doping regulation, what the effects of these substances/practices are and how these effects make them appealing to athletes seeking to gain an unfair edge in competition. In addition, the information will show how athletes may run afoul of doping codes for using common treatments for common ailments. Both the IOC and WADA maintain comprehensive lists available in print and on their websites.
The discussion here mirrors the organization found in the Olympic Movement Anti-Doping Code. Regulated classes of substances include stimulants, narcotics, anabolic agents, diuretics and peptide hormones, mimetics and analogues. Prohibited methods include blood doping and pharmacological, chemical and physical manipulation.
There are many substances that fall into this category, but these substances all are designed to produce all or some of the following effects: increased alertness, competitiveness and aggression; and reduced fatigue. The most commonly abused stimulants in sport are amphetamines, cocaine, caffeine and other sympathomimetic amines such as ephedrine.
This type of stimulant functions by stimulating the body’s central nervous system. Amphetamines mimic the body’s natural response to danger or stress. Under such circumstances, the body’s adrenal glands produce epinephrine and the result is increased flow of blood through the muscles and an increase in concentration and alertness. Drugs that mimic this process are called “sympathomimetic.” Amphetamine chemically resembles epinephrine and stimulates the central nervous system in the same way.
Amphetamine has many performance enhancing applications in many different sports. Athletes whose sports require explosive exertion or aggression benefit in particular. Explosive exertion sports include shotput, weightlifting and hammer. Aggression sports would include many contact sports. In addition athletes who compete in endurance sports like running or swimming may use the drug to compensate for the sustained consumption of energy such sports require. Finally, the drug suppresses appetite and athletes may abuse the drug in order to lose weight.
In a survey of medical research, Houlihan suggests that the performance gains available from amphetamine use may be minimal at best. One study of particular note because of its scientific legitimacy has concluded that the use of amphetamines produced a small improvement in swimming (.59% to 1.16%), running (1.5%) and weight throwing (3% to 4%), although there has been criticism of this study. Studies on animals have shown increased endurance in swimming and running. In any event, even a small percentage increase in athletic performance might make the drug appealing to world-class athletes. When mere hundredths of a second or fractions of an inch make a different in a competition, any improvement in performance is an advantage. In addition to uncertain improvement, some evidence suggests that the effects of amphetamine may vary between different individuals and in some cases might impede athletic performance.
There are, of course, drawbacks to the use of amphetamines. The most significant are the loss of judgment and the development of an addiction to the drug. Amphetamines create a high in which optimism may cloud rational thought. In the sports world, such loss of judgment may lead to injury, often occurring when an athlete pushes past his or her physical limits. In addition, an athlete participating in a contact sport may injure others because of a lack of control. Dependency develops along with higher tolerance of the drug, that is, increasingly larger doses are necessary to produce the same effect that smaller doses had when usage began. The addiction to the drug may lead to psychotic aggression and withdrawal is associated with mental and physical depression.
Cocaine is similar to amphetamines in terms of properties and effects on the body. It operates on the brain, affecting the portions controlling reflexes, emotion, sexual drive and memory. The most significant effect of the drug is a euphoric feeling that comes along with a mild local anesthetic effect and higher blood pressure. Few studies exist on the physiological effects of cocaine and it is difficult to reach conclusions regarding effects that athletes might find desirable in competition. However, what might matter most is that there is an impression among athletes that the drug has performance enhancing properties.
Evidence actually suggests that use of the drug is harmful to performance. Studies suggest that declines in hand-eye coordination, general concentration and team discipline are all results of use. Of course, there are serious health risks associated with use, including extreme addiction as well as cardiac and neuropsychiatric problems. Anecdotal evidence indicates that the upswing in athlete use of such drugs has been for recreational use rather than performance enhancing reasons.
This commonly consumed stimulant is not strictly banned by the IOC or WADA, but there is a threshold for a doping infraction: 12 micrograms per milliliter (about four to eight cups of coffee in a period of two to three hours.) Generally, as a performance enhancing substance, caffeine is claimed to increase endurance, to enhance alertness and concentration. Even in small amounts there may be some positive effect on short duration high-performance sports. Evidence indicates a significant effect of larger doses in endurance events and in some short duration high-performance sports. Work output may increase up to 7% and duration of exercise time may increase by 19%. Drawbacks of usage are also widely known and can include headaches and insomnia if the user discontinues use.
Ephedrine and phenylpropanolamine are sympathomimetic amines that mimic the effects of amphetamines. Ephedrine affects the nervous system in a way similar to amphetamines. Ephedine and similar sympathomimetic amines are common in sport because it is believed that they enhance endurance and depress appetite. Despite this common wisdom, research indicates that ephedrine has little performance enhancing effect. The side effects of ephedrine are similar but not as common as amphetamine, including in extreme cases, hallucinations, psychosis and compulsive behavior.
Drugs in this category include heroin (diamorphine) and methadone and they have been commonly used for centuries for their hypnotic and analgesic properties. Narcotic analgesics affect the central nervous system, reducing pain perception, fear and anxiety. There is also a reduction in the ability to concentrate.
While evidence indicates that narcotic analgesics do not have any performance enhancing properties, they can reduce pain such that athletes can continue to compete after injury or can be desensitized for contact sports where injury risk is high. The primary risks arising from usage of narcotic analgesics are exacerbating existing injuries and rapid physical dependence on the drug.
Synthetic steroids have become widely available since the hormone testosterone was isolated and their increased availability in the 1960s created an issue for sport that remains a problem for doping regulators today.
Steroids act to replicate the effects of testosterone in the human body. Testosterone itself has two main properties: It is androgenic, that is, it creates masculine characteristics. It is also anabolic, in that it has a tissue-building effect. The many synthetic steroid variants are attempts to recreate the anabolic effects of testosterone without the undesirable androgenic effects. Thus far, these attempts have been unsuccessful and all steroids have both anabolic and androgenic qualities. In terms of a steroid’s actual effects on the human body, it increases protein synthesis, possibly aiding in muscle tissue growth, better protein utilization and better capacity for intense exercise.
Steroids are the most widely used drug in modern sport, being used in a wide range of sports. Among athletes there is the understanding that using steroids to enhance performance results in: greater strength and size, greater ability to train intensely, resistance to workout pain, faster recuperation, improved performance, increased confidence, physical well-being and enthusiasm. However, there is difficulty in corroborating these results since administering the levels of steroids that would be necessary to produce these effects would be unethical in a controlled experiment. Many athletes practice stacking, where they take many different steroids taken at ten to forty times the therapeutic level. Often users will cycle the usage of the drugs in an attempt to avoid the side effects of the drugs.
Scientific study does suggest numerous physiological and psychological effects, regardless of the actual way in which the drug functions in the body and regardless of the lack of data on the effects of high usage. While the effect of steroids on endurance is minimal at best, there is debate over their effect on bulk and strength. There have been conflicting studies as to whether steroids actually result in increased strength and bulk. However, some studies suggest that steroid use along with certain kinds of exercise regimens may lead to increases in strength and mass. Again, there is some dispute as to whether this might be due to a placebo effect that allows athletes to train harder and longer. According the IOC, steroids have a greater effect on women, proportionally to men. In fact, evidence gathered from the East German women’s swimming program, where female swimmers ingested substantial amounts of steroids, shows that women are more likely to experience increased strength and muscle mass as a result of steroid use because they are more sensitive to steroids. In spite of some uncertainty as to the actual relationship between steroids and improved athletic performance, athletes continue to use steroids, perhaps because they believe that steroids give them an edge in competition. Furthermore, anecdotal evidence seems to indicate that steroid use, particularly among women, has performance enhancing results.
Also associated with steroid use are a multitude of side effects. In men, usage tends to reduce the natural production of testosterone, decrease in the size of the testes, increase sex drive followed by diminished sex drive and lower sperm count. In addition, men may develop breast tissue. Women may suffer masculinizing effects, including deepening of the voice, male pattern baldness, acne, growth of facial hair, menstrual cycle cessation or changes, decreased breast size and enlargement of the clitoris. Overall, steroids may increase the risk of cardiovascular disease. Also, they may case jaundice and liver damage. One final side effect is psychological: users have been known to experience increased aggression or manic-depressive episodes.
Although much of the discussion regarding anabolic-androgenic steroids also applies to testosterone, testosterone deserves some separate treatment since athletes have been substituting testosterone for steroids because testing often has difficulty distinguishing between exogenous from endogenous testosterone. In the 1980 Olympic Games, two-thirds of all random urine samples had abnormally high levels of testosterone. The value of testosterone is similar to a steroids: physiologically, it promotes muscle growth and strength; psychologically, it enhances aggression.
Diuretics affect the rate at which urine is formed and are normally used therapeutically to treat high blood pressure and excessive fluid retention. Athletes have used diuretics to help achieve weight loss (useful for sports where weight is regulated, like wrestling or boxing) or to conceal the use of other drugs by accelerating the rate at which they exit the body through urine. Generally, athletes will take diuretics as they are also taking other drug combinations because the diuretic aids an athlete in passing doping tests even though he or she is using banned substances.
In its natural function, hCG is manufactured in the placenta and stimulates production of progesterone during pregnancy. When it is injected into males, hCG initiates increased production of testosterone and epitestosterone. This effect is rapid, increasing production of plasma testosterone by 50% within two hours of injection.
Since the effect of hCG is similar to that of steroids, it holds appeal for athletes. However, what is probably the most endearing aspect of hCG is that it is impossible to detect through testing. Tests cannot detect hCG usage because the drug itself does not persist long enough for detection and because it stimulates natural testosterone and epitestosterone production. Since these hormones are produced naturally, tests designed to test for excess testosterone (which compare the ratio of testosterone to epitestosterone) cannot detect any evidence of doping. Side effects of hCG are similar to that of steroids, probably because such effects are results of excessive testosterone or similar substances in the body.
ACTH is produced by the anterior pituitary and stimulates production of corticosteroids, which have anti-inflammatory effects as well as possible mood effects. The interest in ACTH from the standpoint of athletes is on a derivative of it called tetracosactrin, which raises blood cortisol and corticosterone concentration. In addition, it rapidly reduces lethargy and creates “positive” mood effects during training and competition. Over time, usage may cause atrophy in muscles. In addition, taking the synthetic ACTH lowers the body’s endogenous production of ACTH and degenerates the adrenal glands, making the athlete more vulnerable to infection.
Human growth hormone (hGH)
hGH is released from the pituitary gland and controls the natural growth of most body systems. In therapeutic use, hGH has been effective in helping growth hormone deficient children reach normal height. In addition it has been used to help children who are not hormone deficient grow taller. Functionally, the hormone helps break down fat and also stimulate production of somatomedins, the molecules that facilitate growth.
This ability to facilitate tissue growth has led athletes to employ hGH in the hope that it will allow greater bulk and strength, prevent muscle breakdown after discontinuing steroid use and strengthen tendons and ligaments. This belief coupled with the increased availability of synthetically produced hGH (hGH was once harvested from cadavers) has resulted in increased use of hGH as a doping agent. However, medical evidence suggests that there is no reason to believe that hGH would, if administered to healthy athletes, result in improvement in muscular strength. However, that lack of comprehensive study in this field makes it uncertain as to what exactly the effects of hGH use are on healthy athletes. As with many other drugs used for performance enhancing properties, data tends to be more on the intended, legal uses of the drugs rather than on how the drug enhances athletic performance. Further, there is little known about the possible side effects of abuse of synthetic hGH. There is some evidence that it may cause over-growth of bones and soft tissues as well as coronary artery disease.
Blood doping by transfusion involves removing blood from an athlete, allowing the body to naturally bring the red blood cell count back to normal, then reintroducing the blood into the body in order to increase the overall red blood cell count. This increases the amount of oxygen available to the muscles. It also increases the volume of oxygen used during intense exercise. A similar effect may be available by introducing the blood of another person with the same blood type into the body. Research has shown that blood doping has the potential to increase maximal capacity to use oxygen by 5%. Generally, doping by transfusion certainly increases athletic capacity and enables improved performance. Potential side effects include dangerous increase in blood pressure.
Training at high altitude can have a similar effect, as the body compensates for the decreased atmospheric oxygen level by releasing a natural synthesis of erythropoietin that induces higher red blood cell production. rEPO (often referred to as simply EPO) is the synthetic version of this substance and it was developed to treat renal disease, some cancers and anaemia. Athletes, in lieu of direct transfusion, can use EPO to boost red blood cell levels and increase their aerobic performance. This makes transfusions or EPO attractive to athletes in endurance sports. The effects of EPO as used for this purpose are not well understood, although it presents risks via high blood pressure and higher blood viscosity due to the high level of blood cells per volume.
The effects of alcohol and marijuana are widely known and although it does not appear that either has any performance enhancing qualities, doping regulation covers these substances.
These anti-inflammatory drugs are often used to treat localized injuries to reduce swelling and provide short-term pain relief. These drugs are also subject to some doping restrictions.
This family of drugs are used to treat angina, cardiac arrhythmias, migraines, tremor and a variety of anxiety related symptoms. They perform this by decreasing heart rate, the degree of contraction of coronary blood vessels and arterial blood pressure. Due to these properties, these drugs aid performance of sports that require steadiness, such as shooting, archery and golf. However, the drugs also adversely affect aerobic and anaerobic endurance, making the drugs helpful in a limited number of sports. Side effects may create cardiac problems, including heart failure, breathing problems and impotence.
This review of substances and practices covers the most widely known and most commonly used forms of doping. It offers only a taste of the depth of the challenge facing WADA in its efforts to identify, research and devise testing for performance enhancing substances and techniques. Further, under each of these subcategories of substances there are many variants with differences in chemical structure and effects on the human body. As is discussed later in this paper, understanding what drugs might be used is only part of the challenge. Finding ways of identifying whether these substances are being used is equally, if not more difficult.
Doping is a subject of paramount importance in sport and the reasons for this can be nearly as complex as the intricacy of doping science and regulation itself. Why is it that we, as a society, care about sport and the effect doping has on sport and on our society? Given the immense resources expended on regulating and prevent doping in sport, it is apparent that there is a driving motivation to purge doping from the world of international athletic competition. However, the elements of this motivation are not as easy to articulate as the regulatory systems that stem from it. Three general factors drive the motivation: First, our society puts great importance on sport and there is the harm to sport resulting from unfairness when athletes dope. The magnitude of the harm may be commensurate with the importance we place on sport. Second, there are harms to people associated with doping activity. Finally, there is the perception that doping is so common as to warrant a complex regulatory scheme.
Of these three motivations, either of the first two might seem to be alone sufficient to justify a doping regulation regime, though the second is probably most often mentioned by regulating agencies. Furthermore, both motivations have individual shortcomings, but together they provide foundation to justify regulation, With regard to the third, the degree of doping occurring in competitive sport dictates the appropriate response, as the regulatory decision involves an analysis weighing the costs of an enforcement regime against the benefits of eliminating doping in sport. If doping were limited to small numbers of athletes in only a few sports, the political will to eradicate doping might very well be lower.
Doping affects the nature of sporting competition. It artificially amends the physical conditions of athletes who claim to evaluate their natural differences of performance against each other. Doping is an issue, which is able to change fair competition into a spectacle for the mere amusement of the spectator.
Sports are a important part of modern society and doping attacks the very principles that make sport such a compelling and significant institution. Never since the Roman Empire have sports played such a significant role in human culture. The phenomenon of modern sports, both professional and amateur, is global in its prominence and impact. Billions around the world follow thousands of world-class athletes from all over the world as they compete in compete in international games (the Olympic Games, in particular) that generate billions from television revenue and sponsors. Every major media outlet in the world finds time to report on newsworthy events in sport and there are numerous news organizations that report exclusively on sporting events. Nations take pride in the performance of their athletes. Athletes earn millions for their efforts and for their endorsements, while at the same time, their fame imparts influence on fans and gravity to their words and actions. Fans pay to watch sports and carefully scrutinize the outcomes of sporting events and athlete behavior. There is no denying that sport is an institution, a vital part of our increasingly global society. It is no longer simply entertainment, but it is a multi-billion dollar business enterprise. Doping works to undermine this entire enterprise and, because of the scope of sport, doping’s impact is significant enough to warrant tremendous attention and concern.
The way in which doping undermines the institution of sport is twofold. First, it provides an unfair advantage, allowing the drug user to cheat by surpassing natural performance levels. Secondly, and less importantly, as doping becomes more pervasive, it calls into question the performance of all competitors, even those who are not enhancing their performance with drug use. Doping creates a sporting world where winners may be undeserving because of drug use and winners may not receive the credit they deserve because of doping suspicions. At a foundational level, the enjoyment of sport stems from our appreciation of other human beings’ athletic skill, confident that they compete in a fair and equal arena, with fair and equal meaning that athletes may only gain advantage from superior natural ability, training methods and mental toughness. Doping robs spectators of this confidence. Sport can no longer be enjoyed because it is no longer, at its core, fair.
With respect to the first way in which doping undermines the sport, the underlying fear is that doping methods will remove competition from the pitting of natural skills of athletes against one another and instead place it in the laboratory where doctors and researchers develop increasingly more sophisticated methods of enhancing human performance through technological means. This attacks deeply rooted conceptions of what sport ought to be. If competitions are decided by medical science, then the victor has won for the wrong reasons. In addition to seemingly fundamentally unfair, a world where doping depends on scientific prowess, rather than natural talent and work ethic, favors some nations over others. Advanced, wealthy, Western nations have the resources and the scientific know-how to improve the performance of their athletes through the use of performance enhancing technology while relatively less developed nations would be left to inherent ability, training techniques and personal determination. This is an unfairness that affects the loser in a competition.
The second way in which doping undermines sport affects the winner, in that no legitimate winner may receive the accolade and rewards he deserves. To a certain extent, this type of unfairness is less troubling in that it does not reach the scale of unfairness created by illegitimate winners. In this case, the winner has indeed won fairly and the unfairness is limited to treatment of him while the unfairness of an illegitimate win reaches to the core of sporting values.
Although the sense of this unfairness seems intuitive, there are some difficulties in justifying regulation of doping by simply saying that it creates unfair advantages for doping athletes. As Houlihan discusses, the concept of unfairness in athletics is a malleable one. Certainly, an athlete with superior physical abilities is not considered unfairly advantaged as compared to other athletes. In some sports where there is equipment, competitors are allowed to use increasingly more sophisticated items in order to enhance their performance, for example shoes or hydrodynamic swimwear. Training techniques may differ significantly, with some being vastly superior to others and providing real advantages to the athletes that use them. An athlete may have an injury that they treat with drugs, further, these drugs may not only restore their lost skill but may imbue additional ones as well. In these examples, the question of fairness becomes increasingly more difficult. What is a normal level of fitness and what is an unfair advantage? As athletes strive to maximize their performance they will utilize as many ways to gain an advantage over competitors as possible, testing the boundaries of doping doctrine.
Simply because something gives an athlete an advantage does not mean that it is unfair. This is complicated by the fact that many performance enhancing substances have legitimate uses that treat illnesses from which athletes may be suffering. Further, the natural/unnatural distinction is irrelevant now that performance enhancing drugs may actually be synthetically produced human hormones. Perry proposes a test to help distinguish amongst legitimate “perfomance enhancements” (training might be considered performance enhancing) and illegitimate ones: Enhanced performance due to supplementation is to be accepted if it eliminates a deleterious effect (a shoe reducing injury) or removes a barrier to improved performance. Finally, the supplementation must be generally available. Perry’s construction might actually allow the use of performance enhancing drugs, provided they are generally available. However, his formulation is useful in that it identifies the overarching goal to equalize as many factors as possible aside from actual physical ability.
Perhaps the strongest argument for unfairness reasons is the differential access problem. While many kinds of advantages besides doping might be considered an unfair advantage, doping and the technology associated with it are unfairly distributed. This advantage is a clear one and doping regulation is a response to a clear imbalance in access. Of course, it could be argued that this bias towards technologically advanced nations still exists under the doping regime in that athletes from wealthier nations use drugs not currently detectable while those from poorer nations use detectable drugs or are truly deterred from doping.
Since it is difficult to create an airtight argument for doping regulation based solely on unfair advantage issues, the IOC has also justified regulation by pointing to the health hazards that doping techniques present. Between issues of unfairness and issues of health, doping regulation enjoys solid motivating factors.
“Substances that do not damage a sportsmans’ health should not be banned.” – IOC president Juan Antonio Samaranch, on the eve of the 50th anniversary of the opening of the first post-Second World War Olympic Games in London.
The use of performance enhancing drugs in Olympic sports creates physical harm for three entities: the athlete using the drug, other athletes and the public.
Regulation seeks to prevent harm to athletes resulting from the use of performance enhancing substances or practices. As discussed in Part II, there is a widespread perception among athletes and spectators that certain drugs have performance enhancing effects. Anecdotal evidence from athletes as well as some medical evidence suggests that use of performance enhancing substances or practices has a negative impact on health. There are scientific reasons to doubt both that the drugs or techniques employed actually improve performance or cause serious side effects, primarily because testing normally involves small dosages of such substances under controlled conditions while athletes use very high doses in uncontrolled conditions. In light of this, it may be paternalistic and perhaps unscientific to ban the wide range of substances and practices currently forbidden under doping regulations. However, because of the dislike of drug improvement to performance and because of indications of possible health side effects, doping regulation might be seen as a precautionary step, seeking to minimize harm to athletes as the effects of doping on the human body become better understood.
Doping regulation seeks to prevent the harm to other athletes who may not initially be doping. The argument is that if some athletes are doping, they effectively raise the competitive bar, forcing other athletes, who would prefer to stay clean, to make a difficult decision: either begin doping and accept the associated risks or refrain from doping and lose constantly. The specific harm here with respect to athletes who do not use initially is that doping by athletes robs them of their autonomy. There are of course problems with this rationale as well, in that athletes are constantly forced to adopt practices that they may not have chosen were it not for the adopting of those same practices by their competitors. Doping is merely one species of this type of coercion and, in fact, some types of tough training methods, such as weight loss to make weight classification in weight regulated sports, may be as hazardous to health as some types of doping. This is not to say that there is indeed some harm occurring, rather, it is worth noting that the form of doping harm is not unique to doping.
Finally, the desire to regulate doping stems from health harms to society at large, in particular, to that of children and others who seek to emulate high profile athletes and look to athletes as role models. The logic is that people will either copy athletes drug use because athletes’ actions are worthy of emulation or that people will be more likely to dope because the fact that athletes do so makes doping morally acceptable. Further, as the modern “cult of the body” becomes a more powerful ideal in our society, driving individuals to take whatever means necessary to have a certain, fit and athletic body type, doping may become an employed method of achieving the ideal body of the athlete. Again, this motivating factor may be criticized. Role models engaging in other types of activities use some of the same banned substances, yet do not receive the same kind of condemnation. For example Karen Cain, a famous Canadian ballerina, used painkillers to get through her performance of “Swan Lake”. Also, musicians have been known to use beta-blockers in order to improve their performance, yet there has been no outcry over such use. Many possible role models use all sorts of drugs that are legal outside of sport, but we do not condemn such use. For some reason, sports holds its participants to a higher standard.
It is not the purpose of this discussion to answer definitively whether the reasons we give for doping regulations are good ones. Rather, its purpose is to describe what reasons are perceived to be the motivating factors for doping control. What is clear is that the health and fairness arguments are individually strong enough for the sporting world and the public to provide alone enough justification for doping control. However in light of the philosophical and practical shortcomings of both justifications, the fairness and health arguments combine to make up for the shortcomings of the other. Fairness provides a moral justification for regulation that health arguments may fail at, for example, even if all athletes use substances banned in sport, because sport has a backdrop of unique moral rules, there is a reason for holding athletes to a higher standard. Conversely, health concerns for users of doping methods provide incentive for regulation in sport that compensate for shortcomings in fairness analysis. Even if fairness is relative, at some point, health concerns resulting from certain competitive practices demand some level of protection. Together, the two justifications make for a stronger basis of regulation than either could alone.
The prevalence of doping
The goals of fairness and health are admirable, but the scope of doping regulation would not be as great as it is if very few athletes were doping. Instead, because of the prevalence or perceived prevalence of doping, we, as sporting spectators, care deeply about the issue. If doping were a rare occurrence, its impact on the sporting world would be far less than it currently is and society would care less about regulating doping since the perception of unfairness would be diminished.
In spite of widespread reports in the media on drug scandals suggesting that drug use corruptingly permeates sport, actual evidence on the prevalence of drug use in sport is surprisingly thin. The four major methods of investigation, investigative journalism, government investigation, drug testing and surveys of athletes all result in underreporting of doping activity. Journalism, surveys and government investigation all face the problem of athletes seeking to cover up improper behavior while drug testing is too easily circumvented, either because test times are announced well in advance or because test techniques are not sophisticated enough to detect many forms of doping. In spite of this lack of hard evidence, high profile stories, such as the East German sports program or Ben Johnson’s disgrace at the Seoul Olympics, and startling admissions, such as that of Ken Caminiti (a former All-Star with the Houston Astros) who claimed huge numbers of professional baseball players abuse steroids and other performance enhancing drugs, all serve to create a powerful political will to take on perceived widespread abuse in sport.
A cynical observation
In addition to fair competition, athlete health and the widespread perception of doping abuse, there is a final factor that may influence some to care about the impact of doping on competition: money. This motivating factor may be limited to the international games organizers and to the interests that sponsor the games and benefit from the exposure. The European Broadcasting Union has agreed to a $1.442 billion dollar deal for the broadcasting rights to five winter and summer games between 2000 and 2008. Similarly, US television companies have agreed to a $2.3 billion dollar deal for the 2004, 2006 and 2008 games after having paid $793 million for the Sydney games. The IOC and national sport federations all benefit from the enormous amounts of revenue that arise out of international competition and it is in their interest to maintain public interest in the games to continue this cash windfall. It may be that anti-doping regulation is, in part, an effort to placate the sports watching public by providing some assurance that the games are indeed fair and therefore worth paying attention to. Overseers of international athletics must realize that doping regulation is a way to safeguard the riches their sports generate. The role of money is important in generating motivation to regulate and it has other influences that bear discussion in later parts of this paper, particularly the discussion regarding problems with past IOC regulation.
As is apparent in this Part’s discussion, the reasons for why doping in sport matters and is worthy of regulation take on political, moral and economic dimensions. It is sufficient to say that in spite of possible weaknesses in these motivations, they are powerful enough to generate the international effort to stamp out doping that we see today. With regard to unfairness motives in particular, it seems prudent to head off the destruction of the legitimacy of sport. There is, at the heart of sport, a core notion that competition must be on fair and equal terms. Even though the line between fair and unfair can be nebulous, most spectators and even athletes would probably agree that doping is not an acceptable or fair way of enhancing performance.
The complexity of doping regulation and the difficulties associated with it would not be the challenging problem to the Olympic Movement that it is if doping were not such a high profile, seemingly prevalent problem with a history stretching back decades. As is clear from the descriptions of some of the most commonly abused banned substances, the effects of these substances, or, perhaps more importantly, athletes’ perception of what effects might be, present a strong temptation to athletes looking for an advantage over their competitors. Over the years, numerous athletes have given into this temptation, employing drugs and medical techniques to gain advantage over competitors.
With many competitions being determined by tiny increments of difference between competitors, any advantage, psychological or physical, has the potential to distinguish between winners and losers. In spite of the potential for serious health consequences, the competitive drive to excel and win, which drives athletes to train harder and longer and to endure great hardship, may push athletes to take great risks in order to achieve victory. Also, in light of the fact that others may be gaining an edge from performance enhancing substances, an athlete who might desire to stay clean will feel extreme pressure to also engage in doping, given the immense amount of resources he or she has invested in preparing for an athletic career. Understanding the strong temptation of doping behavior as well as the historical evidence of the willingness of athletes to give in to this temptation lends an appreciation for the need for at least some regulation of doping behavior and ideally a critical analysis of the phenomenon of doping.
Throughout recorded history, man has sought to improve his physical and mental capacities through the ingestion of certain foods or substances. The berserkers of Norse legends used bufotenin for its stimulating effects while West Africans used Cola cuminita and Cola nitida during foot races in ancient times. In the third century BC, Greek athletes took varieties of mushrooms to improve performance. Roman gladiators were known to take stimulants to overcome fatigue.
In more recent times, during the 19th century, there were many reports of athletes using substances to enhance their performance, including strychnine, nitro-glycerine, opium, alcohol and caffeine. In 1869, cycling coaches prepared heroin and cocaine mixtures for riders in order to increase endurance during 144-hour races. Belgian cyclists were allegedly taking ether-soaked tablets, the French caffeine tablets and the British a veritable cocktail of drugs including strychnine, heroin, brandy and cocaine as well as pure oxygen. It was during this time that the first recorded death of an athlete from an overdose of drugs occurred: Cyclist Arthur Linton overdosed on tri-methyl and died during a race between Bordeaux and Paris in 1886.
However common drug use to enhance performance was in the 19th and early parts of the 20th century, drug use to that point was often characterized by misunderstanding of drugs effects as was demonstrated by the use of powdered gelatin and orange as a performance enhancing aid. Because of the general lack of knowledge on the effects of drugs on sports and because of the relatively uncommon use of drugs in sport, early doping efforts largely went ignored by sports authorities and governments. It was not until after World War II that the use of drugs as performance enhancers became widespread. During the war, there was extensive and unregulated experimentation with drugs. In particular, the militaries of the world researched amphetamines and steroids with the intent of using drug technology to enhance the fighting ability of soldiers. The research led to increased scientific knowledge about these drugs and also showed possible applications for the drugs outside a therapeutic context.
In the decades following, the amount of drug use in conjunction with sport exploded and deaths and increased numbers of positive drug tests led to recognition of doping as one of the primary concerns in modern athletic competition. In the late 1950s, steroid use began to accelerate, driven by doctors’ increasing willingness to supply drugs to athletes and by Cold War competition between the US and Soviet Union, both of which were afraid that the other would gain an athletic edge through drug use. US doctors believe that they were helping the cause of freedom by aiding US athletes in their competitions with Soviet athletes. At the 1956 World Games in Moscow, some male athletes had to be catheterized in order to pass urine because steroids had enlarged their prostate to the point where it would not allow normal flow of urine. It was in the 1960s that events began to force the issue of dopign onto the agenda of sports federations, particularly the death of cyclist Tom Simpson on TV during the 1967 Tour de France. In the 1970s, as testing became more common, test results revealed doping to be an increasing phenomenon. In the 1976 Munich Games, significant amounts of caffeine were found in athlete urine. Also in 1976, Manfred Donike developed the first reliable tests for steroids. From that point, the scope of anabolic steroid use became easier to estimate. Analysis of urine samples from the 1980 Moscow Games showed evidence of a large number of athletes using steroids. Into the 1980s, drug use, especially anabolic steroid use became increasingly prevalent. At the 1983 Pan-American Games, many athletes withdrew from the games when informed of the new and more rigorous drug testing and 19 athletes tested positive for drugs, mainly steroids. The 1980s and early 1990s saw high profile drug scandals, including Ben Johnson, the Canadian sprinter, Butch Reynolds and Randy Barnes, American record holders in track and field, and German sprinter Katrin Krabbe.
Even as it seems as if doping abuse peaked in the 1980s, the emergence of undetectable substances such as EPO and hGH may actually indicate that use of older, detectable drugs has fallen away in favor of newer, undetectable drugs. As the history of doping continues to unfold, it remains unclear exactly what the state of sport is in regard to doping.
In addition to separate drug incidents and problems at particular Olympic Games, doping abuses have involved systematic doping, organized by national governing bodies of particular sports and sanctioned by the government. Two doping scandals, associated with East Germany and China, demonstrate the extent to which doping can infect sport and provide a preview to a world without doping regulation, where doping and other scientific efforts to enhance human performance are as much a part of sport as early morning training sessions.
In the 1976 Montreal Olympics, East German women nearly swept the pool. Comments circulated in the women’s locker room regarding the manly bodies and deep voices of the East German women. Other competitors were accused of being sore losers for accusing the East Germans of cheating and felt increasingly in despair over the utter dominance of the East German swimmers. At those Olympics, East German women swimmers won gold medals in 11 of 13 events. Through the 1970s and 1980s, East Germany’s athletes, aided by a corrupt national sports organization, dominated international amateur athletics. Over three decades, East Germany employed a secret program, called “State Planning Theme” 14.25 in which over ten thousand young athletes unknowingly took extraordinarily high doses of anabolic steroids given them by their coaches and trainers. This program built upon knowledge developed during World War II by the Nazis. During the war, Hitler had issued large quantities of steroids to the SS and the Wehrmacht in order to help the troops resist fatigue and follow orders more ruthlessly. The goal of the program was to transform East Germany into an athletic powerhouse, raising the nation’s prestige on the international stage.
While the program worked inasmuch as it allowed East Germany to dominate numerous sports, especially women’s swimming, the program had serious consequences for both the athletes who were part of it and the athletes that competed against them. For the East German athletes, the plight of female swimmers is the best documented. The use of drugs transformed their bodies permanently, resulting in increased musculature, permanent reproductive system problems, heart and liver problems and various problems with the children of athletes who had been on the steroid regimen. With respect to the athletes that competed against these performance enhanced swimmers, many American swimmers in those 1976 Montreal Games thought themselves failures and found themselves questioning their ability. The American coaches were deemed failures and never again received coaching positions. Many swimmers and coaches ended their careers prematurely when in fact, the performance of the American team was one of the best ever in history, putting aside the illegal performances by the East Germans at the time.
All during this time, the East German sports program was able to keep its doping system secret, timing the administration of drugs in order to evade scheduled tests and finding ways to pass drug tests their athletes should have failed. All the while, the IOC and FINA, the world swimming organization, did not act, partially because the lack of effective testing methods. However, they expressed little concern over the dominance of the East German swimmers. It was not until the 1990s and the reunification of Germany did the facts about the doping system and the harms done to the athletes in that system become public.
Chinese women’s swimming has emerged as another program suspected of systematically enhancing its athletes’ performance through various doping methods. However, although testing and surprise inspections have yielded a good amount of evidence indicating that Chinese swimmers have been engaging in coordinated doping behavior, it is unclear whether the Chinese doping problem resembles in any way the egregious system of East Germany. In fact, positive test results at Chinese swimming events in China seem to indicate that there is not a coordinated government effort to employ doping, but that perhaps doping is widespread and highly organized within the Chinese swimming program apparatus.
Beginning in the early 1990s, the Chinese women’s swimming program began to dominate the sport like no other program had in history. In 1992, thirty Chinese women ranked in the “Top-25 times list”, a list that represents the most elite performers in the sport. By 1993, ninety-eight Chinese swimmers were on the list. This total represented more than any nation had ever achieved in the history of women’s swimming. Furthermore, pool performance in world competition was equally dominant: at the 1994 World Swimming Championships, China almost swept the women’s races, winning twelve of sixteen gold medals.
This incredible explosion of dominance naturally raised suspicions among swimmers from other nations, particularly because the women carrying out this assault on world swimming had acne, deep voices and extremely male shaped muscular bodies, all “telltale signs” of steroid abuse. The initial response of the FINA and the IOC to allegations of doping violations was to criticize the “sporting character” of the complaining coaches. Both IOC President Samaranch and FINA President Mustafa Larfaoui publicly declared China’s athletes to be clean. This proved to be a mistake, as a new test for dihydrotestosterone (DHT) was introduced in the Asian Games of 1994 shortly after the World Swimming Championships of 1994. Two Chinese swimmers tested positive in China, five more tested positive in Hiroshima at the Asian Games and seven to ten swimmers had barely legal test results and had elevated levels of testosterone. Following several half-hearted attempts in which FINA sent lawyers to talk to Chinese government officials about doping, FINA punished the individual athletes but found no evidence of systematic doping.
Following criticism of its handling of the positive drug tests, FINA amended its rules to make sanctions stricter for first time offenders and for nations with numerous positives. The Atlanta Games went by relatively uneventfully, with one Chinese swimmer winning gold and none testing positive for drugs. However, in 1997, the Chinese national governing body of swimming reported that four athletes had tested positive, but FINA suppressed the test results and refused to impose the stricter sanctions agreed upon earlier. The scandal re-erupted at the FINA World Championship in Perth, Australia when an Australian customs agent discovered enough human growth hormone (hGH) in a Chinese swimmer’s bags to supply the entire team. In addition, four Chinese swimmers tested positive for diuretics, presumably used to flush their systems of other illegal doping agents. Again, FINA and the IOC chose to treat the incidents as separate rather than evidence of a systematic doping effort.
Both the East German and the continuing-to-develop Chinese situations demonstrate the pitfalls of a sport with doping and without adequate detection and enforcement measures. It is worth noting that the East Germans were never caught doping, despite the testing regimes of the time, while large numbers of the Chinese have been caught. In both cases, the effect of doping showed how dominant an edge doping can provide, in spite of what medical research might indicate. In a world without regulation, many nations might take up systematic doping programs. Also, these events show some of the shortcomings of regulation. Technologically, testing is no sophisticated enough to match increasingly sophisticated doping techniques and test evasion. Politically, governing bodies may be inconsistent in their application of rules, apathetic towards enforcing the rules or may simply lack the ability to objectively evaluate doping problems. In the following Parts, this paper builds upon these themes, elaborating on these and other problems associated with the regulation of doping as well as offering some suggestions for overcoming these problems.
PART IV: THE SHAPE OF REGULATION
As has been established so far, doping violates the ethical underpinnings of sport and harms many in the sporting world and those associated with it. The sporting world, being painfully aware of the problem doping is and has been to sport, has defined what drugs and practices usage of which constitutes doping. The problem has been acknowledged, evidence shows the prevalence and impact of the problem and the factors constituting the problem have been identified. What remains is converting the desire to solve this problem into tangible regulations and implementation efforts. Anti-doping regulation is a dynamic endeavor, changing over time to adjust to increasingly complex doping techniques. It has employed a variety of techniques to detect doping and to discourage it from taking place. This part provides an overview of the relevant organizations and their efforts to the present to detect and put an end to doping.
There have been five main groups that affect the regulation of doping in sport: the IOC, international federations, doctors and scientists, individual governments and the Council of Europe. Each group has played a part in shaping the doping policy that received substantial overhaul with the creation of the World Anti-Doping Agency in 1999.
The IOC was, up until the 1980s and the commercialization of the Olympic Games that accompanied that period of time, a modest organization that lacked the resources to pursue an issue like doping. In 1961, it formed a medical commission as a forum for discussing the problem and in 1962 banned the practice by resolution. However, the IOC did not possess a strong motivation to press the issue. The IOC priority was to maintain the integrity of the Olympic Games and thought that some testing would further that goal. In 1972, the IOC instituted a simple testing program at the Munich Games.
International federations regulate particular sports across all countries and all major sports have a federation. Most federations instituted drug testing programs during the late 1960s and early 1970s. By the early 1980s, many federations had anti-doping policies and programs in place, although some might have thought those policies to be cosmetic. The primary motivation of international federations was to ensure the probity of their sports and the events they organize. Federations also had in interest in maintaining control over their own sports and preventing the IOC or governments from interfering in the regulation of an increasingly important and public problem, doping.
Doctors and scientists initially served as facilitators of doping efforts, providing the scientific knowledge and the drugs themselves to athletes. This was particularly true in the US and Western Europe during the 1950s when doctors felt it was their patriotic duty to help their athletes compete with the steroid-fueled Soviet athletes. In the East German system, doctors provided organization and expertise in the methodical distribution of steroids to athletes. There were however, doctors, including some who initially aided doping efforts, who became active opponents of doping in sport, collaborating with the IOC and the Council of Europe. Their role continues to be a complex one in the world of doping and sport.
Individual governments used and continue to use a combination of inducements and sanctions to ensure that sporting federations properly regulate doping. The nations to take the first action were nations where cycling was a major sport and amphetamine abuse was a persistent problem. In 1965, France and Belgium passed legislation against drug abuse by athletes, followed in 1971 by Italy and Turkey. Inducements have included funding for doping control and sanctions have included threats to remove national funding of sporting federations that do not properly regulate doping abuse.
Finally, the Council of Europe, in the late 1960s initiated a debate on drug abuse in sport, intending to raise the profile of the issue among its members. The Council saw cooperation on cultural issues like sport as progress towards its organizational goal, promoting democratic government in Europe. Through the 1970s and 1980s, the Council continued to play a role in the issue and became the main non-sports forum for policy debate on the issue. In 1978, the Council began a six year process that resulted in the European Anti-Doping Charter (EADC), which was a model for policy development involving sports and governmental agencies working together to end doping.
The history of regulatory efforts does not go back as far as the existence of doping itself. However, as the problem of doping became better understood in the 1960s and 1970s, it became increasingly apparent that some sort of regulatory system would be needed to stem the tide of increased doping. Between the five different parties making efforts to regulate doping in sport, the potential for conflict between groups was high. The EADC marked the beginning of increased interaction and sometimes cooperation between groups with some divergent interests.
Around the time of the EADC (the 1970s and through the 1980s), all of the main actors involved in anti-doping efforts were working on clarifying policy and procedure on doping. During this period all began to move away from the impression that collaboration was not necessary for effective anti-doping regulation. It became clear that unless all groups associated with sport harmonized their efforts and employed the latest standards in drug testing and drug identification, then doping would continue to escape undetected. Of course, increasingly public doping scandals and emerging information from East Germany served as a catalyst in this realization.
The 1990s were a time where the actors in doping regulation realized that the problem extended beyond their ability as individual organizations to regulate. Both governments and sports organizations such as the IOC became increasingly active, and the IOC took the lead as national sporting agencies as well as sports governing bodies agreed to the 1994 Lausanne Agreement which was a statement of intention to work towards closer harmonization. Continued debate and refinement regarding harmonization efforts led eventually to the creation of the current regime under WADA in November 10, 1999.
This history is far from exhaustive and perhaps the most valuable conclusion one can make from this overview of the entities and their history in doping regulation is that anti doping efforts have become increasingly harmonized, moving from being disorganized and spread out across numerous agencies and organizations to a more centralized system. Further, this harmonization effort is complicated because of the number of groups involved, their competing interests and their inherent dislike of accountability to other entities.
Without touching on details that appear in the discussion of other Parts, it bears mentioning the general tools that sporting organizations and governments employ to regulate doping. The system includes testing accompanied by a sanction regime, with an intervening appeals process that is loosely legal. Each of these elements finds mention in more detail in later sections. In particular, features of the legal process and sanction process appear immediately below in the outline of the doping control system immediately prior to the 1999 Lausanne Conference that created WADA. A brief definition and discussion of the tools will clarify the terms for purposes of further discussion.
At the outset of testing, through the 1960s and 1970s, testing was performed primarily to ensure the health of athletes rather than the fairness of competition, since the extent of doping did not seem as extensive as it seemed in later decades. Testing is the most intricate and difficult aspects of regulation in that it combines the difficulties of science, procedure and organization. Once the bodies regulating international sport decide upon which drugs and techniques comprise doping, the challenge remains for whatever agency arm coordinating testing (formerly the IOC’s Medical Commission, now WADA’s Medical Commission) to devise methods by which to test for the banned practices and substances. Often, the doping definitions include substances undetectable by contemporary testing techniques. Even today, drugs like EPO and hGH still lack reliable tests that indicate use of such drugs. The scientific aspect of testing challenges regulators to first identify the many effects of different substances and, if the governing body decides to classify the substance as banned, then to devise reliable testing methods. Most testing involves analysis of athlete urine and, increasingly, blood. One possibly new development in this area is searching athlete’s personal effects and accommodations. The discovery of hGH in Chinese swim team luggage as well as the drug bust at the 1998 Tour de France showed the possible benefits of such an enforcement strategy.
Even after the testing science becomes reliable and effective, difficulties lie in setting the procedure for taking the samples and testing them in labs. Questions arise as to who ought to take the sample from the athlete and what level of privacy ought an athlete receive while being tested. The concern lies in athlete efforts to cheat, by switching urine samples or sending a replacement to provide a urine sample. The timing of the tests is also critical to the regulatory process. If tests are announced and periodic, athletes have the opportunity to cycle their doping activities such that they are able to pass banned substances from their bodies. Furthermore, there is a need for qualified labs, normally accredited by the IOC, to accurately process the samples. All of this requires thoughtfulness and proper execution to preserve the viability of testing procedures.
Finally there is the issue organization, since this testing regime must be consistent and reliable at athletic functions all around the world.
The issues of appeals processes, where athletes can challenge positive test results, and sanction are less complex. The appeals process takes guidance from legal systems around the world, assigning burdens of proof and allowing an athlete a fair hearing. The fact that athletes regularly seek to utilize this process shows that sanctions are indeed costly to athletes and the nations the represent.
Sanctions are generally either suspensions or expulsions, applied either to an athlete, coach or, in extreme cases, a nation. It is rare for an entire country to receive sanction, as is evidenced by the experience of the Chinese doping scandal, but individual athletes commonly receive suspensions of two to four years and occasionally athletes have been banned from international competition for life.
The evolution of doping control through the latter half of the 20th century resulted in an international system in the late 1990s controlled from the top down by the IOC. International sport has long revolved around the Olympic Games and the loose organization of international and national federations headed by the IOC has formed a structure known as the Olympic Movement. Power and control in international sports have historically been heavily influenced by the Olympic Games.
In this old system, the IOC sat at the top of a pyramid-like organizational arrangement, deriving its power to control international sports from its ability to decide which sports were part of the Olympic Games and which individuals were allowed to participate in the games. Naturally, control over doping regulation flowed from this responsibility. Below the IOC were international federations (IFs), each governing an individual sport such as swimming and operating only with the IOC approval. The IFs set rules, conducted competitions other than the Olympics and determined qualification for the Olympics. Under the IFs were national governing bodies (NGBs), exercising authority over particular sports within a nation. Some nations had national Olympic committees (NOCs) that controlled a nations Olympic games entries. These NOCs controlled NGBs during Olympic years and sometimes during non-Olympic years. With NGBs coming under the authority of the IOC, IFs and NOCs, the potential for conflict was clear.
In the context of doping, the IOC determined test procedure and banned substances for the Olympics, creating the baseline standards for doping regulation. IFs were free to create its own procedures and banned substances list. NGBs and NOCs had responsibility for implementing the procedures and carrying out the actual testing, although often these activities ran into problems with domestic laws and practices. Disputes often arose between the IOC, IFs and NGBs and because the source of authority for the IOC is merely the management of the Olympics, there was no clear system of resolving disputes.
Within this complicated system, testing, sanction and appeals processes all could occur internally within each entity. The US had a system that exemplified the regulation system: the US NGBs and the US Olympic Committee (USOC) coordinated doping control within the US. Each nation set up internal appeals systems. In the US, an athlete with a positive test result appealed to the relevant NGB, then the USOC and then the American Arbitration Association (AAA). NGBs had internal hearings and appeal processes. An appeal of an NGB final decision went to the USOC, where the USOC determined if the NGB followed all of the USOC constitutional requirements. The burden of proof lay with the athlete. The AAA took appeals of USOC decisions and evaluated them under commercial arbitration rules.
The IFs reserved the right to review NGB decisions and had their own arbitration panels to decide disputes. Often IFs disregarded the decision of an NGB. In such disputes a final option remained, the Court of Arbitration for Sport (CAS), a court established in 1983 to provide an uninterested forum for deciding disputes between athletes, NGBs and IFs.
Even in this simplified review of the structure of doping regulation, the prospects for problems loom large, with multiple self interested groups involved in a process with conflicting rules and undefined authority.
PART V: THE DIFFICULTIES OF REGULATION
Regulating a problem that spans continents and involves the monitoring of thousands of athletes and hundreds of coaches is a challenge necessarily filled with difficulties and challenges. Over time, the regulation of doping has continually evolved and adapted to address the problem of doping, yet after decades of efforts, the system as described in Part IV was disorganized and full of conflict, distrusted by many members of the athletic community. This part explores the many problems associated with the anti-doping regime prior to the 1999 creation of WADA. Even though the “old” system of doping regulation is slowly giving way to a new regime, significant portions of the old system remain. Further, to understand the many different kinds of challenges that face doping regulation, it is best to look at the prior system of regulation, which had existed for several decades and had produced recorded results, rather than attempt to evaluate potential shortfalls of the new system which is not yet fully in place. The problems explored here exemplify the pitfalls facing any regulatory regime. Part VI will describe the new system in detail, compare it to the problems explored here and discuss how some of these problems may continue to exist.
The difficulties in regulating doping fall into four general categories: scientific, legal, moral and political. The new regulatory regime will attempt to address some of these problems, but focuses primarily on the political challenges to doping regulation.
Most of the challenges in this area revolve around issues of testing although there are also concerns with regard to the classification of drugs and the role of doctors and medical experts in the field.
To address the last two issues first, the role of the medical community in the definition of doping and in developments in the regulation of it is still not as strong as it could be. First, with regard to classification of possible doping agents, the burden of gathering data falls on the regulating agencies. The data on most drugs is for legitimate uses of the drugs, since all doping agents have legitimate medical uses. Ideally, there would be more research on illegal sports uses of the substances as well as more effort to identify drugs that might be used in such a way in the future. For example at the 1996 Atlanta Games, a new stimulant, used in Russia, became known to doping regulators only shortly before the Games began. The drug probably aided in athletic performance, but because it had not been identified and studied, its use had to be allowed. This may be an intractable problem, since the resources available for research are limited and it is a better use of those resources to understand the legitimate uses for drugs. Furthermore, such research might present ethical issues to doctors. The lack of information on doping agents will remain a difficulty. Second, members of the medical profession could contribute more to alleviating the doping problem. Those doctors aiding athletes in doping are an obvious problem. Doctors who are involved in doping regulation are often either purely technical in their analysis of doping science or their opinions are used by their employing or sponsoring organizations to give credence to policy standpoints. Doctors could participate more in the actual policy making process.
The problems of testing present perhaps the most daunting challenge to the international sporting community. The drug testing project faces problems with: timing and scope, resources and technology
In terms of timing and scope, too few athletes are tested too infrequently. At the Olympics, the IOC only tests the top three finishers and one randomly chosen athlete. When tests are at specific times, athletes use timing techniques to ensure that illegal substances leave their bodies before testing. Even when the testing is random and unannounced, the probability of being tested and caught is low enough that athletes may be willing to risk possible detection for the chance of winning it all. This low probably of being testing during training cycles combined with the known times of testing during games allows for strategic evasion of a test that might reveal the doping activity.
The problem of limited resources is linked to the timing and scope problems. Since the IOC, IFs and NGBs have limited resources, they cannot expand the testing regime. The cost of testing and analysis reach into the millions, with a single test costing $200. It would be impossible to test every athlete for doping. Furthermore, there are costs associated with developing new tests and researching potential doping agents. While shortcoming in the testing regime beg for more resources, the reality of limited funding and escalating costs suggest that doping regimes must creative incentive and disincentive schemes that deter usage more efficiently than broad-based testing.
Technology remains the greatest difficulty in the regulatory regime. Athletes have ways of evading detection. For example, testosterone tests compare the ratio of testosterone to epitestosterone. If the ratio is off, then the evidence indicates that an athlete has been using anabolic steroids to boost testosterone levels. However, athletes will boost their epitestosterone levels in order to keep the ratio within acceptable levels. Other methods of evading detection include using old drugs that have performance enhancing effects not considered by testing agencies or using undetectable human hormones such as EPO and hGH. In addition, blood plasma injections that increase the red blood cell count is impossible to detect if an athlete uses his own blood.
Legal concerns with doping regulation fall into a few categories: athlete rights, lack of harmonization, burden of proof, strict liability and due process. Appeal proceedings in sport resemble criminal trials and as quasi-legal events, they raise legal issues for regulators. Generally, the appeals process suffers from inconsistency and unfairness concerns.
Although athletes willingly submit to testing in exchange for the opportunity to compete in international sport, there is the concern that testing violates certain universal rights that have been gaining support in international law. Since sports disciplinary law is not based on the statutes of any nation’s law, it is not subject to human rights treaties such as the European Convention for the protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights. Instead, the rights take on a more basic character: should there be a limit to the kinds of testing and to the frequency of testing? Does banning an athlete infringe on some sort of right to work? At what point does testing become an invasion of privacy or at what point does a positive test result unfairly punish an athlete? While all of these questions lack the concreteness of inconsistencies in legal process across different nations, they are still background issues that affect decision-making.
Harmonization of legal processes continues to be a major issue, both in terms of moving from national level proceedings with NGBs to international proceedings with IFs or the CAS. In the past, IFs had the ability and power to ignore NGB rulings and instead proceed with their own determination of guilt. Also, across different nations, there may be unfairness as some NGBs are less effective at giving an athlete a fair hearing and internal appeals process. A final issue with regard to harmonization is the differences between the statutory provisions for national federations. The CAS is bound to apply the rules of federations, not the IOC, and since harmonization has not yet been achieved, there is no general CAS definition of the doping offense applied to all cases brought before it.
The burden of proof and strict liability issues are, of course linked. In any doping regulatory proceeding, there is an assumption of strict liability and the athlete must prove his own innocence. The burden of proof issue is a difficult challenge in that it pits the interest of the athlete in wanting to have the sporting federation prove that he participated in doping activity versus the interest of the federation to avoid such a thing. Whoever bears the burden of proving their case is at a disadvantage. The athlete may not be the best bearer of cost in this circumstance, in that having to prove his innocence is costly, especially since it may involve hiring experts in addition to a lawyer to prove that his positive test result was a testing error and there is no doping violation. On the other hand, sports federations around the world argue that presuming the guilt of the athlete in this way is the only way to have an effective anti-doping system. If a federation had to prove intent in a doping case, the fight against doping would be almost impossible. Instead, intent matters only to the level of sanction. This state of affairs creates a system that might be perceived as unfair to athletes. An exacerbating factor is that all of the evidence with regard to the test results is in the hands of the federation, not the athlete, so an athlete must rely on an adverse party for most of the relevant information in the appeals process. A final concern is that the system currently has no way of distinguishing between innocuous uses of over the counter medications, like cold medicines that contain banned substances like ephedra, and actual doping activity. Athletes are still guilty of a violation if they take such a medication given to them by uninformed coaches.
Due process concerns aside from the assignment burdens also arise with regard to punishment before hearings and biased arbitrators. In many cases, upon a positive drug test, the sanctions are immediate and are lifted if the hearing finds that no doping has occurred. In the case of arbitrators, athletes come before a panel of decision-makers who are part of the very federation (NGB or IF) trying to keep the sanctions in place. Both of these due process concerns question the fairness of the hearing process, whether it be on the NGB, IF or CAS level.
Issues in this area relate back to the discussion in Part II regarding harm to athletes and to spectators as justifications for having doping regulations at all. While the harm to emulators of athletes may remain, the argument regarding harm to athletes is a questionable one. If athletes are competent adults and are willing to accept doping and the potential harms, then ought society prevent them from utilizing techniques to enhance their performance? With regard to harm to other athletes, doping is not different than some training techniques that are harmful to health. In a world where individuals ought to be free to make their own decisions, is it necessary to control their behavior in the way doping regulation does? Assumption of risk may simply be part of a Faustian bargain that athletes make in order to perform at their best. Of course, as discussed before, this issue must be taken in light of fairness concerns that cut against this autonomy argument. Differential access to technology remains a reality that flies in the face of this morals based argument.
In the eyes of many, the political problems that plague the regulatory process are the most serious. In fact, the reforms of 1999 seemed to focus on solving these political problems rather than some of the other problems discussed here. Political issues take shape in three different ways. First, there are significant conflicts of interest that affected the IOC, IFs and NGBs and will continue to affect any agencies involved in future regulation. Second, there is the issue of seemingly low interest in implementing existing doping policy effectively, which may or may not be related to the conflicts issue. Finally there is the matter of nationalist politics infiltrating the international doping regulation system.
The fundamental conflict of interest is that the organizers of international sport, whether it be the IOC, the IFs or NGBs, have a monetary interest the best possible athletic competitions. This interest stems from the vast quantities of revenue international games produce for international organizations and NGBs that may be used to promote the sport and develop athletes. The IOC in particular has an interest in maintaining its “brand-name entertainment monopoly.” The more outstanding and amazing sporting performances are, the more successful sport is. With success comes greater interest and greater television and advertising revenue. In the sense that doping enables greater levels of athletic achievement than would ordinarily be possible, doping is in the interest of sport’s governing bodies. Exacerbating this problem is the fact that the IOC and the other sporting federations do not suffer the harms of doping, instead it is the athletes that suffer the long and short term injury.
The other aspect of this pecuniary interest in maximizing athletic performances is that although doping may aid in the marketability of sport through improved performance, publicized doping harms sports marketability. Thus, there is incentive to create the semblance of clean competition while at the same time allowing the doping to continue, or, at least, turning a blind eye towards unsavory activities that yielded spectacular athletic achievements. From a cynic’s perspective, this may explain the tendency of federations to talk tough on anti-doping enforcement but to rarely take significant action when there is suspicion of doping or even actual evidence of doping. The response of the IOC and FINA, the swimming IF, described earlier with regard to the Chinese doping scandal seems might be explained in these terms. The interests of the leaders of the federations might also contribute to this response.
Another significant conflict of interest is that of the leaders of international governing bodies, like IOC President Samaranch and FINA President Larfaoui, have personal interests in the success of the sports they oversee. The heads of international sports organizations have an incentive to curry favor with as many nations as possible, since their position depends largely on the goodwill of the nations affected by the international governance. Leaders often may directly gain in terms of publicity and prestige in sport and on the world stage from the actions of nations participating in organized doping. For example, during the height of the East German doping program, Samaranch awarded the mastermind of East German doping efforts the Olympic Order, an award for officials who uphold the “perfect ideal of sport and humanity.” Also, throughout the Chinese doping scandal, Samaranch supported China against the many accusations fielded against it. During that time, the Chinese nominated Samaranch for the Nobel Peace Prize.
A final pair of intriguing conflicts of interest involve pharmaceutical companies and the international medical committees. Many of the labs that receive IOC accreditation for processing drug testing are run by the same pharmaceutical companies that produce drugs with legitimate uses but are used illegitimately for doping purposes. In the Atlanta Games, the Atlanta drug testing facility was run by SmithKline Beecham Laboratories and some reports said that there were unannounced positive tests on athletes who may have been medal winners. Further, there has been suspicion that the growth in markets for drugs like hGH (of which Eli Lilly and Genentech marketed $800 million worth in 1992) might eventually come from illegal uses. In terms of international sports medical committees, some committees have member doctors that have condoned doping practices and believe that such practices do not present significant dangers to athletes.
Poor implementation of policy has also been a criticism of the IOC and other federations. In part, some of the apathetic enforcement of doping regulations may stem from inappropriate interests as discussed above in the conflicts section. However, some of this may simply be poor performance on the part of the federations, perhaps due to excessive bureaucracy and perhaps due to poor motivation. Two problems earn mention. First, the federations have not been effective in informing athletes about the anti-doping system. Second, there has been at points a perceived apathy on the part of federations to enforce their own rules.
Information distribution is an essential part of the anti-doping effort. At present, athletes must navigate the complex lists of banned substances, substances that may be used for some purposes and substances that are allowed. Further, they need understanding of test protocols and appeals processes. Above all, athletes need to understand the risks of doping and the consequences of getting caught. Generally, athletes have poor information regarding doping policy. Federations do not adequately educate athletes nor do they hold NGBs accountable and instead individual athletes tend to get blamed even when there is evidence of systematic doping abuse coordinated by a national program.
Secondly, the IOC and IFs have appeared uninterested in intervening in situations where doping seems apparent. This was the case in East Germany and China. In 1998, the IOC was embarrassed by France when French frustration over IOC inaction over alleged abuses in the Tour de France boiled over and French authorities launched their own investigation of doping, uncovering extensive doping amongst the cyclists. Also in 1998, Samaranch called for a “drastic” reduction in the number of named banned substances because he feared that it would create a fiasco where, like in the Tour de France situation, large numbers of athletes would be exposed as dopers and the Olympic Games would be tarnished.
Finally, there is the issue of national politics. As with any international endeavor, nations constantly seek to promote their own interests in the sporting world. The nationalist interest in demonstrating a strong country through strong athletic performance makes this struggle especially acute at times. Global politics, like the Cold War, have affected international sport and nations will not shy away from attempting to influence doping policy to further their own gains.
PART VI: A NEW WORLD ORDER
Until the late 1990s, most governments and governmental bodies showed deference towards IOC and the IFs that “bordered on the unctuous.” However, governments began to change this approach and threatened to become increasingly involved with the regulation of international sport. The IOC and the IFs, fearing a loss of their influence over sport agreed to concessions and the resulting process, begun with the World Conference on Doping in Sport in Lausanne, Switzerland, resulted in the creation of a blueprint for doping regulation headed by a new independent agency (WADA). Although the details of WADA’s function remain in development, the overarching goal of the agency is to eliminate many of the political concerns regarding the past regime, especially those involving conflicts of interest, increase harmonization of doping regulation and to increase the effectiveness and intensity of anti-doping efforts.
Four different factors led governments to move towards intervening in the international sports doping regulatory world. First, there was resentment of the growing arrogance and pretensions of the federations and the IOC, who relegated governments to junior partners in increasingly large projects. Second was the near collapse of the 1998 Tour de France due to widespread doing, where the IF for cycling seemed unable to stop doping and government officials intervened. Third, the corruption and bribery scandal of the 2002 Winter Games in Salt Lake City and the 1996 Games in Atlanta served to undermine the moral authority claims of the IOC. The final factor was that the European Union had a growing interest in international sport.
Against this backdrop, representatives from competing nations formed working groups and debated issues including: making the definition of doping include both a harmfulness and a performance enhancing requirement for banned drugs, a new independent agency and where funding would come from for such an agency, athletes rights under testing and the problem of doping being an ethical problem in addition to a medical and sports problem. Throughout the conference, distrust between government officials and sports authorities permeated the conversations. The conference resulted in the Lausanne Declaration on Doping and Sport and it contained six sections: (1)Education, prevention and athletes’ rights; (2) the Olympic Movement Anti-Doping Code; (3) Sanctions; (4) International Anti-Doping Agency; (5) Responsibilities of the IOC, IFs, NOCs and the CAS; and (6) Collaboration between the Olympic Movement and public authorities. Serious contention arose with regard to the subject of sanctions, where the IOC wanted to install a minimum two-year suspension for doping violations, but also wanted to preserve a right for IFs to lift any such sanction under “exceptional” circumstances. Most government officials felt this was simply another example of international sports organizations wanted to evade any hard rules on doping, trying to create loopholes so that popular players would not be eliminated from large, profitable events.
Perhaps the most significant development was the setting aside of at least $25 million of IOC TV revenue to fund WADA. The Lausanne Declaration gives WADA responsibility for evaluating the existing banned substances list created by the IOC Medical Commission, accrediting testing laboratories and planning out of competition testing with the IFs. An issue of great concern, the leadership of the agency was a compromise between the IOC/IFs and governments. The board of directors will be split evenly between government and sporting interests, with four seats from the sporting interests going to athletes.
As the WADA continues to be organized and debated, a few concerns remain. First, will the leadership coming from the sports world continue to be the same officials who have been lax in their enforcement of doping regulations? Second, will the IOC and the IFs continue to cooperate with governments for fear of government intervention in the sport? Finally, there is the issue of funding since funding at present seems low and the ultimate costs of WADA are unknown.
At the World Conference at Copenhagen in 2003, the parties all met again and gave final form to WADA. WADA regulation will have three levels, the World Anti-Doping Code, mandatory standards (Banned List, Lab Standards, Testing Standards and Standards for Therapeutic Use Exemptions), and Models of Best Practice (recommendations for structuring doping regulatory activity on a national level).
The World Anti-Doping Code harmonizes doping regulation worldwide and incorporates input from stakeholders in the process at every level. This harmonization extends to a broad range of doping control issues. Of particular note, the code sets burdens and standards of proof, lays out clear criteria for placing a substance on the banned list, creates a fixed sanction regime that applies to athletes, teams and national sporting bodies, and outlines research plans for developing new tests and discovering performance enhancing applications of existing and new drugs.
The new code clarifies the legal aspects of the hearing process. The burden of proof initially lies with the agency and the agency now has the burden to establish that an anti-doping violation has occurred and must establish this to the “comfortable satisfaction” (greater than mere probability but less than beyond a reasonable doubt) of the hearing body. Once this is shown, the there is strict liability and the athlete is presumed to have committed a violation regardless of intent and any evidence presented by the athlete may mitigate sanction.
In terms of the formulation of the banned substances/practices list, a substance or practice must have any two of the following three attributes: performance enhancing effects, creates actual or potential athlete health risks and violates the spirit of sport. In addition, any agents that may be used to mask the use of other prohibited substances are banned.
Sanctions have also been harmonized, with a two-year ban for a first offense and a lifetime ban on the second. However, there remains an opportunity for an athlete to mitigate the sanctions by showing that there was no significant fault or negligence.
Finally the code discusses research, but does not establish clear procedures for acquiring new knowledge on doping issues. The code addresses many other subjects as well, including testing procedure, testing analysis, the appeals process and education.
The new code goes into effect in January 2004 and until then, the existing IOC rules apply.
PART VII: COMMENTS AND CONCLUSIONS
International competitive sport stands on the brink of a new phase of development with the creation of WADA. Even as the WADA and the new World Anti-Doping Code take effect in 2004, questions remain. What are their prospects for success? What are continued concerns under this new regime? Do other proposals exist should WADA be less effective than desired and are these extreme plans feasible? Is doping something that can be properly regulated at all?
WADA and the World Anti-Doping Code go a long way to addressing many of the scientific, legal, moral and political problems that have plagued doping regulation since its inception in the latter half of the 20th century. The independent nature of the agency along with its supremacy over other international governing bodies give it the credibility and means to establish meaningful change in doping regulation. Furthermore, the Code harmonizes the formerly conflicting features of doping regulation, making administration of the system more efficient and making it easier to athletes and coaches to comply with the regulations.
From a functional standpoint, the new regime looks to be an improvement over the original system, although only time will tell how good of a system the new Code creates. The political problems have largely been addressed and WADA seems acutely conscious of the need to improve the scientific understanding of doping regulators in order to detect currently undetectable drugs. Though there may still be issues of fairness with regard to the assumption of intent if an agency proves that an athlete has violated doping code, at least there is a process that is consistent across nations and federations. Finally, the power of WADA to sanction national sporting bodies may prove to be a powerful deterrent to doping activity.
Certainly some concerns remain, although it would be fair to reserve judgment on WADA until it has operated through at least one Olympic Games cycle. Obviously, the designers of the WADA system took many of the problems discussed with regard to regulation in this paper into consideration. As such, on paper, the new plan seems to address many of the issues that have been serious problems in the past. Some challenges will linger, especially those that are not the product of poor policy design and implementation; for example the challenges of keeping pace with doping technology and the difficulties in mitigating the effects of political struggle (between nations and governing bodies) and conflicts of interest on the part of IFs, who still retain control over the on ground implementation of controls. The political question remains the most pressing. The IOC and the IFs agreed upon the new system in large part because they felt that it was the only way to salvage some of their influence in the field before governments intervened. Since the WADA board is comprised of both sports organization representatives and government representatives, there is the potential for conflict within the WADA governance. This possibility is something to watch for in the future.
Also, there is the overall danger that the political interest in doping, which has become a hot-button issue in international competition, will decline, taking away the urgency of the reform project. Like the issue of Mark McGwire’s andro use in Major League Baseball, concern tends to fade over time as the story is no longer a front page news item. Even though in the MLB case, the league took action to end drug use, the decline in public outcry is informative as to how pressure for reform on sports agencies can decline over time.
Some improvement proposals
The WADA system appears to be the best possible solution for the circumstances of the present as it is an incremental step forward from the IOC dominated system. It is evolutionary rather revolutionary development in doping regulation. In a simplified view, the WADA has taken over doping control from the IOC and has harmonized many doping regulations, but the hierarchy of organizations under it has not radically changed, nor has the general test-sanction-appeal format of regulation. Observers of the field have over the years proposed many more revolutionary approaches to doping control, some of which might be worth an evaluation by WADA. WADA ought to remain open to learning new and innovative ways to discourage doping. Even if the proposal may be too radical, elements of it might be a useful addition to the existing regime.
One example is a proposal for retroactive sanction in that if doping behavior were uncovered in the future, sanctions would be applied retroactively, that is, medals, awards and recognition would be taken away. Such a system would either involve information acquired from sources after the fact, like the discovery of information on the East German program, or by storing test samples from athletes for testing in the future when technology exists to test for currently undetectable substances. Such a plan is a appealing and would not cost excessively more than the present system, although storing samples might be difficult. However, the deterrent effect might be great in that not only would doping athletes have to worry about being detected and punished under the present system, they would have to be concerned being penalized in the future. There would be no safe harbor in using currently undetectable substances. A system incorporating retroactive sanction might alleviate the pressure on WADA to rapidly develop new tests for presently undetectable drugs, reducing the costs of research.
Another proposal would be to place the bulk of responsibility for regulation decision-making on the athletes. Studies have indicated that most athletes would prefer a clean sport. Many athletes may dope simply because of the possibility that others are. Since athletes are the entities most affected by doping controls, they have a strong claim to greater ownership of the process. This method might increase the sensitivity of the regulations to athlete concerns and may be just as strict in punishing doping. However, allowing athletes to govern the process might introduce similar conflict of interest problems that involved the IOC. Many athletes have a pecuniary interest in the success of the sport commercially and incredible performances may aid in this. However, the overarching harmfulness of the drugs involved might prove to be a powerful counterweight to any possible corruption of the regulatory process.
Some other possible ideas include criminal sanctions for violators. In many nations it is already illegal to traffic performance enhancing drugs for purposes other than their intended therapeutic use. This would be an alternative way of deterring doping, but going after doctors distributing performance enhancing drugs illegally and after athletes and coaches doing the same. The US has placed drugs like anabolic steroids under the strong (and perhaps draconian) Controlled Substances Act. An approach such as this raises question of enforcement, at least with respect to enforcement that would effectively deter doping. Criminal sanctions might be expensive to enforce against sophisticated distributors like doctors and coaches.
A final regulatory strategy that might prove useful is enlisting help from the pharmaceutical industry, hospitals, pharmacies and medical professional associations. As doping techniques become increasingly advanced in order to stay ahead of detection technology, athletes will necessarily require increasingly sophisticated medical support. Technology of an especially advanced nature will likely be concentrated in terms of its production and distribution. Monitoring the technology at this point might be more effective than simply testing athletes after that technology has proliferated.
Finally there are some radical solutions to the doping issue that deserve mention, although perhaps only because they represent points too far that our society would be unwilling to accept. On one end of the spectrum there is the total lack of regulation. A South African sports scientist, Dr. John Hawley, has advocated removing doping regulations since they are ineffective publicity ploys. He asserts that all of the records in sport now are already doping products. Of course, this extreme proposal ignores the health costs of such a regime, even it it introduces a “fairness” of sorts amongst athletes. On the other end of the spectrum, some have suggested sequestering athletes. This approach would ensure that athletes are not engaging in doping by making them veritable prisoners in special athletic facilities. While this would be an effective approach, its draconian nature tramples upon the rights of athletes and seems to push too far the notion that athletes accept some restrictions in exchange for the privilege to compete.
The state of affairs and the future of the doping regulation project
As the international sports community looks towards the future, the immediate future seems clear. As WADA ramps up its activity and takes over regulatory and oversight responsibilities from the IOC, all attention will focus on whether it will be able to end the trend of lax enforcement under the IOC. As its design is intentionally crafted to address many of the problems in doping regulation today, it would appear that WADA’s prospects for near term success are encouraging.
Looking farther into the future, one cannot feel uneasy about the future success of the doping project. The doping project will always face three timeless problems: changing technology, lack of resources and too many much wealth interest in international games. The already problematic phenomenon of rapidly increasing medical science applied to enhance athletic performance can only worsen. As the pace of biotechnological progress continues at its present pace and future technologies, such as gene therapy or nanotechnology, have applications in athletics, how can any regulatory regime keep up without expending vast amounts of money. The funding of a regulatory regime will always be limited, especially if WADA or whatever its successor may be is to remain a independent regulator. Money from the athletic events being regulated goes to the IOC and other sporting federations, who are reluctant to part with it. Finally, with regard to the issue of wealth interest in sport, sport will continue to be a massively profitable exercise for the IOC, sporting federations, the nations supporting athletes and for the athletes themselves. The pressures of economics and the pursuit of profits despite violations of doping rules are likely to increase.
At this point we have come full circle, where the very love we have for international sport and competition pushes sport to become what we do not love. Sport’s popularity drives massive profits. Our love of competition drives athletes’ to desire to win, sometimes above all else. Our incredible desire to enjoy athletic competition makes sport a profit enterprise and emphasis winning at all costs, yet our conception of sport is such that we want it to be pure, devoid of external motives, incentives and aid. It seems that we might not be able to enjoy both the purity of sport because by enjoying it so much we change its fundamental nature.
While our love drives sport to become something it was not originally, our love and conception of the sport also drives our desire to keep sport fair and healthy for all those involved and affected by sport. Even if doping technology reaches a point where it no longer does harm to the athlete, there still seems to something fundamentally different between training hard with a good diet and using some sort of advanced technology to boost performance. Doping regulation is a necessary project in that it struggles to preserve the a purity of sport, an institution we desire devoid of dishonesty and cheating. In spite of the incredibly complex and difficult problems that face the anti-doping effort, the effort continues. If it did not, sport would cease to be sport.
 INTERNATIONAL OLYMPIC COMMITTEE , Olympic Movement Anti-Doping Code ch. 2, art. 2 (1999).
 DON H. CATLIN, M.D. , DOPING: AN IOC WHITE PAPER 9 (International Olympic Committee ed., International Olympic Committee 1999).
 WORLD ANTI-DOPING AGENCY , World Anti-Doping Code art. 4.3 (2003).
 BARRIE HOULIHAN, DYING TO WIN: DOPING IN SPORT AND THE DEVELOPMENT OF ANTI-DOPING POLICY 57 (Council of Europe Publishing 1999).
 Barrie Houlihan, The World Anti-Doping Agency: Prospects for Success , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 125, 138 (John O’Leary ed., 2001).
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 INTERNATIONAL OLYMPIC COMMITTEE , Olympic Movement Anti-Doping Code art. 4.
 Olympic Movement Anti-Doping Code, Table of Contents.
 Olympic Movement Anti-Doping Code, Appendix A.
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 Charles E. Yesalis III, Andrea N. Kopstein, & Michael S. Bahrke, Difficulties in Estimating the Prevalence of Drug Use Among Athletes , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 43, 56 (Wayne Wilson & Edward Derse ed., 2001).
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 John Leonard, Doping in Elite Swimming: A Case Study of the Modern Era from 1970 Forward , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 225, 228 (Wayne Wilson & Edward Derse ed., 2001).
 UNGERLEIDER, supra note 34, at 52.
 Id. at xv.
 Id. at 45.
 Id. at 46.
 Leonard, supra note 77, at 228.
 UNGERLEIDER, supra note 34, at 38.
 David Galluzzi, The Doping Crisis in International Athletic Competition: Lessons from the Chinese Doping Scandal in Women’s Swimming , 10 SETON HALL J. SPORT L . 65, 78-79 (2000).
 Id. at 79.
 Id. at 79.
 Id. at 79.
 Houlihan, supra note 69, at 318-322.
 Id. at 319.
 Id. at 320.
 Id. at 320.
 Id. at 321.
 Id. at 321.
 Id. at 324.
 Id. at 327.
 Jurith supra note 48, at 480.
 David McArdle, ‘Say It Ain’t So, Mo.’ International performers’ perceptions of Drug Use and the Diane Modahl Affair , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 91, 93 (John O’Leary ed., 2001).
 Michael S. Straubel, Doping Due Process: A Critique of the Doping Control Process in International Sport , 106 Dick. L. Rev. 523, 531-532 (2002).
 Id. at 532-533.
 Id. at 532-533.
 Id. at 532.
 Id. at 532.
 Id. at 533.
 Id. at 536-538.
 Id. at 540-544.
 Bruce Kidd, Robert Edelman, & Susan Brownell, Comparative Analysis of Doping Scandals: Canada, Russia, and China , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 153, 166 (Wayne Wilson & Edward Derse ed., 2001).
 Houlihan, supra note 69, at 332.
 E. Tim Walker, Missing the Target: How Performance-Enhancing Drugs Go Unnoticed and Endanger the Lives of Athletes , 10 Vill. Sports & Ent. L.J. 181, 203 (2003).
 Jacobs, supra note 48, at 565-571.
 Id. at 576.
 R. Craig Kammerer, What is Doping and How is It Detected? , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 3, 11-13 (Wayne Wilson & Edward Derse ed., 2001).
 Id. at 14-15.
 Jacobs, supra note 48, at 572-573.
 JanWillem Soek, The Fundamental Rights of Athletes in Doping Trials , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 57, 57 (John O’Leary ed., 2001).
 Straubel, supra note 98, at 545-546 (German courts have ruled that there is a limited right to compete contained in the right to work.).
 Id. at 538-540.
 Oschütz, supra note 47, at 685.
 Id. at 688.
 Jim Ferstle, World Conference on Doping in Sport , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 275, 279 (Wayne Wilson & Edward Derse ed., 2001).
 Straubel, supra note 98, at 531.
 Schneider & Butcher, supra note 54, at 146-7.
 Galluzzi, supra note 84, at 94-95.
 John Hoberman, How Drug Testing Fails: The Politics of Doping Control , in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 241, 260 (Wayne Wilson & Edward Derse ed., 2001).
 Galluzzi, supra note 84, at 95-96.
 Walker, supra note 108, at197-198.
 UNGERLEIDER, supra note 34, at 23.
 Galluzzi, supra note 84, at 79.
 UNGERLEIDER, supra note 34, at 23.
 Galluzzi, supra note 84, at 97-98.
 Hoberman, supra note 123, at 253.
 Id. at 256.
 Id. at 250.
 Jacobs, supra note 48, at 579-580; Andy Curtis, Running Scared: An Athlete Lawyer’s View of the Doping Regime , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 109, 111 (John O’Leary ed., 2001).
 Galluzzi, supra note 84, at 103-105.
 Hoberman, supra note 123, at 266.
 Id. at. 266.
 Houlihan, supra note 5, at 133.
 Ferstle, supra note 119, at 276.
 Houlihan, supra note 5, at 133.
 Ferstle, supra note 119, at 280-2.
 Id. at 282.
 Id. at 283.
 Id. at 284.
 Id. at 285.
 Houlihan, supra note 5, at 142.
 Id. at 144-5.
 World Anti-Doping Agency, World Anti-Doping Code (May 16, 2003) at http://www.wada-ama.org/en/t2.asp?p=30464&pp=29641.
 WORLD ANTI-DOPING AGENCY , World Anti-Doping Code, art. 3.
 World Anti-Doping Code, art. 1.
 World Anti-Doping Code, art. 4.3.
 World Anti-Doping Code, art. 10.2.
 World Anti-Doping Code, art. 10.2.
 Hoberman, supra note 123, at 257.
 Schneider & Butcher, supra note 54, at 148.
 Jason Lowther, Criminal Law Regulation of performance Enhancing Drugs: Welcom Formalisation or Knee Jerk Response? , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 225, 237 (John O’Leary ed., 2001).
 Id. at 238.
 Scientist Supports Legalizing Steroids , THE INDEPENDENT (London), August 1997, in DRUG ABUSE IN SPORT 8 (Craig Donnellan ed. 1998).
 Michael Verroken, A Time for Re-Evaluation: The Challenge to an Athlete’s Reputation , in DRUGS AND DOPING IN SPORT: SOCIO-LEGAL PERSPECTIVES 31, 37 (John O’Leary ed., 2001).