The health argument

In general terms, paternalism holds that the prohibition of an activity or conduct can be justified where it is necessary to prevent harm (physical, psychological or economic) to the parties who participate in that activity (Feinberg, Reference Feinberg1984, p. 26). Consequently, the legal paternalist advocates what the liberal denies: the state may be justified in using coercive powers to force a person to act against his will in order to protect that person's welfare and well-being or, simply, to protect them from themselves. In application to doping in sport, the paternalist argues, given the health risks that might flow from the unregulated use of PEDs, the current strict liability approach is justified on the ground of, simply, protecting athletes from themselves.

In this light, proponents of the extant regime regularly refer to Goldman's infamous ‘Death in the Locker Room’ survey of 1982 in which nearly 200 elite athletes were asked if they would take an undetectable PED that would guarantee them success in their sport but would result in their death within five years (Goldman, Bush and Klatz, Reference Goldman, Bush and Klatz1984). Fifty-two per cent of athletes answered in the affirmative, and in a decade-long series of biannual surveys thereafter that figure remained consistent, with half of the athletes stating that they would accept this ‘Faustian bargain’ (Goldman and Klatz, Reference Goldman and Klatz1992).

Accordingly, those who support the current regime on PEDs argue that the liberal view is not only overly detached but is also, as revealed by Goldman, based dangerously on a misrepresentation of the ‘informed’ nature of athletes' consent in taking such substances. In short, the paternalist argues that athletes must be protected from themselves because in comparison to the general population and non-elite sports participants – who would, presumably, reject Goldman's bargain – the norms and values of elite athletes are so perversely competitive in outlook that, if left to their own devices, they would assume the risk of premature death for fleeting sporting success such that some would, to paraphrase Houlihan's (Reference Houlihan2002) evocative phrase, ‘die to win’. In wider jurisprudential terms, the decision-making abilities and autonomous capacities of the controlled individuals in question (i.e. the athletes) might be said to become ‘temporarily deranged’ by their dangerously mistaken and skewed perceptions of benefits of PED use (Fuchs, Reference Fuchs2001, p. 239).

More recently, empirical corroboration of the paternalistic approach can be found in a 2009 Australian survey that counterbalanced the Goldman dilemma for the general public and reported that only two out of 250 members of the Australian public would agree to the Faustian bargain on offer (Connor and Mazanov, Reference Connor and Mazanov2009). In reflecting on their findings, Connor and Mazanov make two additional points of interest which appear to further underpin the present paternalistic approach to PEDs. First, they argue that the marked difference between the personal health decision-making of elite athletes and the wider population might be explained by the peculiarly ‘obsessive’ and self-absorbed world of elite athletes (particularly those in individual sports such as athletics, cycling and swimming), which has its origins in the fact that ‘athletes, to reach the elite level must display a singular focus (usually from early childhood) and desire often to the exclusion of other life-affirming activity’ (Connor and Mazanov, Reference Connor and Mazanov2009, p. 872).

Second, Connor and Mazanov (Reference Connor and Mazanov2009, p. 872) observe that elite athletes tend to have what might be called a ‘real-time’ relationship with their body. They are primarily concerned with what they can push their body to do now (at its physical peak) rather than thinking about how it might cope in the future. As a result, many elite athletes, who do not have an adequate amount of objective self-awareness to understand the consequence of their actions alone, effectively assign their long-term health to, and become heavily dependent upon, their support staff – be they personal coaches or physicians or the support supplied by their national sports federation or government. The history of sports shows painfully that the ethical norms of these support staff can also become corrupted by the potential for drug-fuelled sporting success. Most infamously, there was the policy of the communist government of the former East Germany (GDR)-followed by other countries in the former Soviet bloc-which, and particularly from the mid 1970s to the late 1980s, used sporting success for political propaganda purposes and systematically forced elite athletes to take dangerous quantities of steroids resulting in catastrophic and chronic health problems for participants (Spitzer, Reference Spitzer, Loland, Skirstad and Waddington2006).

The cheating argument

This point is straightforward: PEDs are prohibited because they give an unfair advantage and this equates to cheating. In this, it is argued by advocates such as the former President of WADA Richard Pound (Reference Pound2006) that the regulated approach to PEDs is about equality of opportunity and attempting, as far as is practicable, to ensure the athlete of ‘best ability’, rather than the participant with the ‘best pharmacist’, succeeds. Three further points are noteworthy here.

First, it is contended that clean athletes ‘make and set’ better role models (Select Committee on Culture, Media and Sport, 2003–04, p. 3) and thus not only encourage more children to take up the sport but also discourage vulnerable but ambitious young adolescent athletes from taking PEDs at a critical stage in their physiological development. Miah (Reference Miah2005), for instance, develops this point to argue that sports administrators owe, in effect, an ethical duty of care, relating to the control of PED use, not only to those who now participate and enjoy sport, but also in securing sport's participative future, bearing in mind that parents have a legitimate expectation that their children will, in pursuing their chosen sport, neither be exposed to, or pressurised into taking, PEDs.

In support of this contention, advocates of current anti-doping policy highlight recent research in the US indicating that adolescents are taking PEDs in ‘ever-increasing’ numbers (Greydanus and Patel, Reference Greydanus and Patel2010, p. 729). The need for such emerging athletes to have access to independent medical advice, role models and adequate administrative support within their sport, including the need for them to be tested regularly for PEDs, is illustrated by reports in 2011 suggesting the possible increased use of anabolic steroids in schoolboy rugby in South Africa and in Ireland (O'Sullivan, Reference O'Sullivan2011).Footnote ⁶

The second point seeks to refute the contention that, because it does not result in harm to others, sports doping is thus ‘victimless’. The paternalist's contention is that harm is inflicted on others by the taking of PEDs given that ‘perceptions of drug use amongst rivals can only increase the already huge pressures on sportsmen and women preparing for competition’ (Miah Reference Miah2005, p. 874). In other words, not only does the perception of drug abuse have a demoralising affect on all clean athletes, it might also initiate them into PED-taking and thus contribute to a corrosive spiral of PED abuse at all levels of sport (Select Committee on Culture, Media and Sport, 2003–04, pp. 42–50). Furthermore, and at the elite professional level, that harm can clearly be quantified financially i.e. suffering consistent defeats by drugged athletes affects a clean athlete's prize winnings, sponsorships and endorsements.

Finally (and principally as a result of the severe physical and mental trauma of athletes who have either been coerced into taking PEDs, as in East Germany, or who, despite the associated dangers, were seduced by transient sporting glory promised by PEDs), the paternalist is unapologetically moralistic in support of current policy such that this equates to a position of strict legal moralism, i.e. ‘it can be morally legitimate to prohibit conduct on the sole ground that it is inherently immoral or evil notwithstanding both the informed consent of the party involved and the fact that the party's conduct does not harm other actors’ (Feinberg, Reference Feinberg1988, p. 270). Proponents of strict legal moralism also highlight that a strict adherence to liberalism can, in terms of, for instance, the morality of the criminal law of assault, be ‘callous’ in its implementation in that in extremis it appears to justify acts (such as a gladiatorial-type fight to the death between two willing contestants) that are otherwise morally repugnant to the general public and highly degrading and dangerous for the participants, on the sole ground that the parties have made an apparently voluntary and informed consent to participate.

In application to the debate on doping in sport, proponents of strict legal moralism reject the unregulated, autonomy-premised approach of the radical libertarian, viewing it as appeasement laced with defeatism – where one might as well replace the ‘Olympic Charter’ with a ‘Cheater's Charter’. The strict legal moralist also points out the callous nature of the libertarian's view, which in logic means that, if, for instance, all elite athletes were to be given the choice of either taking PEDs or not, the competitive nature of sport would mean that in order to have any chance of success all elite athletes would eventually be ‘forced’ to take PEDs (Wiesing, Reference Wiesing2011). To this end, the paternalist also contends convincingly that the inherent logic of the liberal fundamentalist approach to PEDs in sport would lead to participants being subjected to what might be described as a culture of ‘sporting sadism’,Footnote ⁷ which would in time result in many sports degenerating into what Solotaroff (Reference Solotaroff and Halberstam1991/1999, pp. 574–92) alluded to in his evocative essay on the grotesque, pharmaceutical and dangerously unregulated ‘circus’ that is modern professional bodybuilding.

The current approach to doping in sport: financial concerns

The contention here is that the current system of anti-doping regulation is an inefficient use of scarce resources. Libertarians argue that because doping is mainly confined to the elite professional level, where the financial rewards (and associated fame) are such that athletes are willing to endanger their health, attempting to monitor such highly motivated participants is a costly and ultimately futile pursuit. These athletes, it is suggested, will always find ways to stay ahead of anti-doping testing regimes – principally by availing themselves of more sophisticated, undetectable, ‘designer’ drugs (Teale, Scarth and Hudson, Reference Teale, Scarth and Hudson2012). It follows that the scarce resources currently spent globally on complicated testing and appeals processes by WADA and national agencies – a decade ago Maennig (Reference Maennig2002) estimated that the anti-doping measures reached six digit figures (US$) per doped athlete caught; a more recent estimate is that the annual bill for fighting drugs in sport is now £300 million (Slot, Reference Slot2009) – might be better directed elsewhere to the benefit of the wider development of sport.

Moreover, for all the resources devoted to anti-doping schemes, despite the increased frequency and enhanced sophistication of dope testing, and despite the expanding scope and power give to WADA, the perception remains among the sporting public that only ‘the unlucky or pharmacologically unsophisticated’ get caught (Connor and Mazanov, Reference Connor and Mazanov2009, p. 872). In support, Connor and Mazanov (p. 871) highlight – as Mottram (Reference Mottram and Mottram2011) has again recently – that the incidence of PED use in sport, which from positive test results carried out by WADA is typically reported at less than 2 per cent, appears extremely low.Footnote ⁸ Although the authors admit that, outside positive test results, there are difficulties in gathering reliable epidemiology of estimates of PED usage from athletes – it can either be unreported by ‘innocent’ athletes by way of an unobservable deviant behaviour effect (Petroczi et al., Reference Petroczi, Aidman, Hussain, Deshmukh, Nepusz, Uvacsek, Toth, Barker and Naughton2010) or overestimated by those ‘guilty’ of using PEDs by way of a false consensus effect (Dunn, Thomas, Swift and Burns, Reference Dunn, Thomas, Swift and Burns2012) – recent statistically adjusted analysis of self-reported drug use by German athletes suggests that ‘there is some plausibility in assuming that the rate of dopers … lies between 10 percent and 35 percent’ (Pitsch and Emrich, Reference Pitsch and Emrich2011).

More recently still, and in response to criticism of it by Lord Moynihan, chairman of the British Olympic Association (BOA), WADA's director-general, David Howman, acknowledged both that the rate of detection was ‘pathetic’ and that anti-doping schemes were catching only ‘dopey dopers’ (Broadbent, Reference Broadbent2011, p. 72). Howman further admitted that, from 258,267 doping tests carried out globally in 2010, only thirty-six produced positive reports for the blood boosting agent EPO, which he called ‘the drug of choice for dopers’ (Broadbent, Reference Broadbent2011, p. 72). WADA's director-general was of the view that, although statistically the numbers of positives against the number of tests indicates a doping rate of between 1 and 2 per cent, realistically, ‘the number of people doping are in the double digits’ (Magnay, Reference Magnay2011, p. 14). Cumulatively, this evidence (which to reiterate indicates that there is at least a fivefold discrepancy between the statistical and actual incidences of doping) suggests that current anti-doping testing regimes ‘are either flawed in administration (athletes can avoid tests or manage their drug use) or accuracy (laboratories cannot detect substances or the limits are too high)’ (Connor and Mazanov, Reference Connor and Mazanov2009, p. 871).

The above criticisms and revelations also potentially have a negative impact on both athletes' behaviour and the sporting public's attitude to doping. As regards athletes, the negativity can be equated simply to the temptation for them to write off the risk of getting caught (low) against the potential rewards (high). Utilising a game theory analysis, Haugen's conclusion is that the inherent deficiencies in the current anti-doping system are such that they present athletes with a ‘prisoner's dilemma’: although athletes would clearly be better off in a dope-free world, the advantages of taking PEDs so outweigh the likelihood of getting caught that the system works to ensure that athletes continue to engage in a ‘cheating game’ (Haugen, Reference Haugen2004).Footnote ⁹ Moreover, the two most obvious means of redressing the balance – increasing both the chances of getting caught through improved testing mechanisms and the severity of sanction – are hindered by the fact that (a) even the most sensitive of testing is unlikely ever to be able to stay ahead of advances in genetic enhancement, and (b) truly deterrent penalties would have to be of such a draconian nature as to make it unlikely that they would survive legal challenge. This leads Haugen to conclude that in the absence of the consideration of alternative regulatory policies, including those of a harm reductionist nature, the current situation is likely to get worse because logically the nearer to zero the chances of getting caught are, then the nearer it gets to a situation where all athletes are tempted to cheat.

The negative impact on the sporting public's attitude is recognised through increasing levels of public weariness with, and indifference towards, the topic of drugs in sport. Donegan (Reference Donegan2009) quite rightly identifies the emergence of an attitude amongst the sporting public that, although not extending to sympathy for banned athletes, is mindful that such athletes are likely not to have doped in isolation and that banned athletes are sometimes ‘scapegoats’ for an insidious ethos of doping and cheating within a sport. Moreover, recent empirical research on students' attitudes to doping in elite sport indicates not only a ‘lassitude’ to doping stories in the media but also a more diffuse ethical attitude on the doping issue, including a noteworthy shift from the current zero tolerance principles towards a more lenient attitude (Vangrunderbeek and Tolleneer, Reference Vangrunderbeek and Tolleneer2011, p. 354).

Overall, this raises the question (and there are close analogies to the questions that Rolles, Reference Rolles2010, and others have being asking about the sustainability of the current approach in Britain to the continuing criminalisation of recreational drugs) of if, as evidenced in low detection rates, athletes are easily evading the current testing regime, if sports administrators' arguments in favour of the cost-effectiveness of the current strict approach can be seen as almost deliberately self-deluding in outcome, and if the public is generally indifferent as to whether athletes are caught, then is it not time that an alternative approach is considered?

The current approach to doping in sport: ethical dilemmas

The contention here is that, given medico-technological advances, the monitoring of drug cheats is becoming Sisyphean in nature in the sense that the line between what can and should be prohibited will soon be impossible to maintain. The most obvious example is with so-called ‘gene-doping’ or genetic manipulation, which, it appears, may lead to doping methods undetectable by current testing techniques and possibly necessitating comprehensive and costly gene screening of participants (see further, Williams, Wackerhage, Miah, Harris and Montgomery, Reference Williams, Wackerhage, Miah, Harris and Montgomery2009).Footnote ¹⁰ Admittedly, and as McKanna and Toriello (Reference McKanna and Toriello2010) have recently noted, this technology is at a nascent stage and may be attracting a considerable deal of undeserved hype as to its potential. Nevertheless, given recent research indicating that in many athletic events humans are reaching the limits of their physiological capacities (Berthelot et al., Reference Berthelot, Thibault, Tafflet, Escolano, El Helou, Jouven, Hermine and Toussaint2008; Desgorces, Reference Desgorces2008; Gatzidou, Reference Gatzidou2009), it is likely that during this century athletes will look to such technologies in order to improve upon world records and performances.

Taking a step back for the types of PEDs that might be used in the future, it is also argued that at present the ‘ethical’ line between that which is permitted (for example, hyperbaric chambers that simulate altitude training giving the athlete an EPO-like but ‘legal’ blood boost by saturating the blood with oxygen and simulating healing) and that which is proscribed (minute traces of banned PEDs in otherwise over the counter medications) is now so blurred that it is difficult to see how the distinction can be credibly justified (Loland, Reference Loland2009; Morgan, Reference Morgan2009; Schneider and Rupert, Reference Schneider and Rupert2009). In illustration, in 2011, men's professional tennis was dominated by Novak Djokovic, who admitted to using an advanced hyperbaric chamber called the ‘CVAC pod’ in order to aid recovery. The makers of the pod claim that the technology involved ‘may be twice as effective at helping the body absorb oxygen as blood doping – the banned form of performance enhancement’ (Karp, Reference Karp2011).Footnote ¹¹

The ethical difficulties involved here are thus manifold. WADA broadly uses three principles in distinguishing between medico-technological assistance which may be tolerated and that which is proscribed (Article 4.3WADC). First, a distinction is drawn between medico-technology that promotes more ‘effective’ training and that which ‘enhances’ performance. Second, a distinction is drawn between that which is acceptable for therapeutic purposes and/or legitimately received in the course of a hospital admission or clinical investigation, and that which is used or deliberately manipulated for ergogenic purposes. Third, and ultimately, the distinction is based on that method which in WADA's opinion can or cannot be reconciled with the ‘spirit’ of sport.

This treatment/enhancement distinction is costly to implement, necessitating constant monitoring by WADA of both its Prohibited List of Substances and Methods (2011) and its ‘therapeutic use exemption’ scheme, which permits individual athletes to take substances that are otherwise prohibited, as long as their medical prescription is declared in advance (Article 4.4WADC). Moreover, despite the apparent clarity of sections M1–M3 of WADA's Prohibited List of Substances and Methods (2011), which ban various oxygen enhancement (MI), chemical manipulation (M2) and gene doping techniques (M3), the implementation of this regulatory scheme is more opaque. How is it that Djokovic's recovery pod is permitted under section MI? In addition, although section M3 prohibits gene doping, in reality is this provision not prospective, even aspirational in nature, given that the technology and testing for such doping remains at a developmental stage, and thus raises questions about the ‘comprehensibility’ of such a ban (Parzeller, Reference Parzeller2011)?

The current approach to doping in sport: a morality play?

Four points are noteworthy here: drugs in sport as a ‘moral panic’; the ‘transactional deviance’ of doping infractions; the hypocritical nature of the sports community's attitude to the immorality of doping; and the strict legal moralism of current anti-doping policy.

On the first point, might the controversy about the prevalence of doping in sport reflect what Cohen (Reference Cohen1972) has described as a ‘moral panic’, in the sense that is what we are seeing little more than a lazy vilification by sporting officialdom, media and its public of PED-taking athletes as a ‘deviant’ subgroup within sport more generally? In short, are dopers sport's ‘folk devils’? The Cohen analogy resonates neatly with his more recent work (Cohen, Reference Cohen2002) on the moral panics which have led to the demonisation of young offenders and asylum seekers. Arguably of greatest importance is the elemental part of Cohen's work, which suggests that, while the ‘deviant’ label is easy to attach to any subgroup that threatens predominant norms, it is not that easy to stop the subsequent exaggerated amplification of the threat posed and the inevitable reactionary policies that follow. This analysis lends itself to a review of the evolution of anti-doping policy in sport which has over time transformed into an ‘over-zealous’, shrill and institutionalised crusade against athletes, to the detriment of constructive deliberation and consistent policy-making (Dimeo, Reference Dimeo2007).

Further, the contention is that current anti-doping policy can, at times, be characterised by what can be described as the high-minded assumption about the ‘spirit’ of sport and the ‘solidarity’ of sport participants based on a communtarian respect for the universal sporting virtue that is ‘fair play’. As Kayser, Mauron and Miah (Reference Kayser, Mauron and Miah2007) point out, not only is this a dubious analysis of modern sport and the modern sports participant, it also imposes a ridiculously high standard of policing on modern sports administrators, one that is inevitably and regularly breached, thus further corroding the long-term integrity of sport. Kayser et al. argue that normative systems designed to police society at large, such as the criminal justice system, do not make high-minded assumptions about universal virtues and ‘are therefore, more resilient as regards the continued existence of transgressions’.

The face-saving solution, for radical libertarians at least, is attractively straightforward – permit the use of all PEDs; or, as Savulescu, Foddy and Clayton (Reference Savulescu, Foddy and Clayton2004, p. 666) put it: ‘Drugs are against the rules. But we define the rules of sport. If we made drugs legal and freely available, there would be no cheating.’ An application of Becker's celebrated work on outsiders and sociological deviance (Becker, Reference Becker1963) partly supports this perspective by illustrating that the hollowness that exists within the current approach to anti-doping in sport is a classically constructed example of ‘transactional’ deviance. Translated into a sports-specific context, the transactional approach to deviance informs that sports organisations (encapsulated in WADA) have created PED-deviance by making the rules whose infraction leads to ‘offenders’ being labelled sports deviants or drug cheats. It follows that if the efficacy and consequences of those rules are open to question, then it is reasonable to ask why these rules exist at all or at least why they continue to exist as presently constituted.

The third point with regard to the morality of the current approach to anti-doping in sport lies in the fact that modern elite sport is not just about athletes competing in races or events organised by officials and sanctioned by governing bodies. High-level professional sport is also part of the ‘entertainment’ industry, whereby the sporting public, sponsors and TV companies all play a critical role in the (financial) underwriting of these athletes and events. All three supporting parties enjoy competitive elite sport but they (we) enjoy it even more when it is accompanied by world record times in the pool or on the track, or by unprecedented acts of endurance by cyclists over mountain stages. Athletes are vulnerable to these (our) demands (and, of course, attracted to the financial rewards that accompany success in them) and thus the temptation to dope, whether it is to gain that extra hundredth of a second or simply to help pedal another hairpin twist on a mountain road, must be, and is (as reflected in those willing to risk being caught), intense.

It follows that there is an unsettling paradox within the current approach and the manner in which cyclists and athletes are asked to push their bodies to the limit for our enjoyment but simultaneously threatened with severe sanction for availing themselves of any pharmaceutical assistance (Murray, Reference Murray2008). Sullivan (Reference Sullivan2004, p. 15) also adds, with ironical reference to the level of drug dependency in Western societies generally, that this paradox also includes the imposition by the sporting public of levels of ‘pharmaceutical purity’ on athletes that we would never dream of imposing on ourselves. In this, it is of interest that in a recent review of research on attitudes to doping in elite sport, clear generational differences towards drug use are revealed, with the young generally being both more tolerant of the use of PEDs and more critical of current policy (Vangrunderbeek and Tolleneer, Reference Vangrunderbeek and Tolleneer2011).

Finally, current policy on drugs in sport clearly equates to one of strict legal moralism, and yet that philosophy, which elementally is based on a ‘repugnancy’ towards the act or behaviour in question, also frays at its extremities because, as Dworkin (Reference Dworkin1977, pp. 257–58) says, such ‘moral repugnancy’ often amounts to little more than ‘groundless prejudice’, which is clearly no premise for any policy that is punitive in nature. Moreover, proponents of a prohibitory approach based on ideas of strict legal moralism often encounter difficulties in avoiding a slippery slope ‘to interferences with relatively harmless self-regarding behaviour for trivial reasons’ (Dixon, Reference Dixon2001, p. 340). In application to the current policy on PEDs in sport, Dixon's apprehensions are epitomised by the outwardly moral value judgments on the private ‘recreational’ lives of athletes, evidenced by the prohibition in Section 8 of WADA's Prohibited List of Substances and Methods (2011), of the in-competition use of natural cannabinoids such as cannibas, hashish or marijuana. Cannabinoid use has few performance enhancing or ergogenic attributes (Saugy et al., Reference Saugy, Avois, Saudan, Robinson, Giroud, Mangin and Dvorak2006, p. i14), and thus its prohibition appears to be based solely on the moral premise that as ‘role models’ athletes should not be seen to be using such substances that give rise to ‘social concern’.Footnote ¹²

Wider societal concerns about cannabis as a ‘gateway’ drug are not underestimated (Degenhardt et al., Reference Degenhardt, Dierker, Chiu, Medina-Mora, Neumark, Sampson, Alonso, Angermeyer, Anthony, Bruffaerts, De girolamo, De Graaf, Gureje, Karam, Kostyuchenko, Lee, Lépine, Levinson, Nakamura, Posada-Villa, Stein, Wells and Kessler2010). Nevertheless, in a sports-specific sense, not only is the notion of athletes as role models unsupported by empirical evidence (O'Brien, Kolt, Webber and Hunter, Reference O'Brien, Kolt, Webber and Hunter2010, p. 682; see also Hogan and Norton, Reference Hogan and Norton2000; Keresztes, Piko, Pluhar and Page, Reference Keresztes, Piko, Pluhar and Page2008; Lines, Reference Lines2001; Long and Sanderson, Reference Long, Sanderson, Gratton and Henry2001; Payne, Reynolds, Brown and Fleming, Reference Payne, Reynolds, Brown and Fleming2003; Petersen, Reference Petersen2010; Vesico, Wilde and Crosswhite, Reference Vesico, Wilde and Crosswhite2005), Kayser et al. (Reference Kayser, Mauron and Miah2007) argue convincingly that ‘the intrusive monitoring [and sanctioning] of athletes might actually undermine this status as role models, since it stigmatizes athletes as people who, without surveillance, will behave improperly’.Footnote ¹³

The current approach to doping in sport: zero tolerance

This section contends that the central premise of current anti-doping regulation, equating to ‘zero tolerance’, is of questionable sustainability.

Zero tolerance is generally discussed with respect to the ‘broken windows’ theory underpinning the aggressive enforcement by the police of minor criminal law offences (Dennis, Reference Dennis1997; Innes, Reference Innes1999; Kelling and Coles, Reference Kelling and Coles1996). Subsequent criminological research has demonstrated that the application of zero-tolerance-led policies is not without its problems, and three of these can also be identified in the current approach to doping in sport.

First, the decisiveness of a zero-tolerance approach is beguiling, and especially appeals to policy-makers as a fast-acting antidote to corrosive anti-social behaviour, which they claim is having a wider adverse societal effect (O'Donnell and O'Sullivan, Reference O'Donnell and O'Sullivan2003). Research, and especially that done on the supposed influence that zero tolerance had on falling crime rates in New York City in the 1990s (Bowling, Reference Bowling1999; McArdle and Erzen, Reference McArdle and Erzen2001; Rosenfeld, Fornangol and Rengifo, Reference Rosenfeld, Fornangol and Rengifo2007), illustrates that proponents of zero tolerance tend to exaggerate both the perceived threat and the effectiveness of zero tolerance as a solution. As regards the latter, proponents of zero tolerance tend to downplay the more complex explanations (occurring outside or even concurrent with the strict policing of petty crime) for any associated fall in crime rates to the detriment of longer-term, less formalised but more sustainable solutions such as community policing (Lum, Reference Lum2009) or restorative justice schemes (McEvoy and Mika, Reference McEvoy and Mika2002).

In application to sport, the recent extension and frequency of WADA's testing regime notwithstanding, the proportionately low incidence of positive tests (with only around 2 per cent of athletes testing adversely for prohibited substances) casts significant doubt over the efficacy of that regime. Moreover, it is argued that the current approach, based on the presumed fault of athletes, has become an idée fixe for sports administrators, distracting from more nuanced, long-term solutions such as identifying broader risk factors in the susceptibility of athletes to PEDs.

Second, the authoritarian and puritanical nature of zero-tolerance-led policies means that policy-makers often get caught in what might be described as a ‘adherence spiral’. This spiral can result in breaches of fundamental legal rights, and ultimately corrupts the core objective of the original policy by way of ‘abuses of authority, illegal use of force, and a transformation of policing culture into one that could be inflexible or overly repressive’ (Lum, Reference Lum2009, p. 794). In terms of anti-doping regulation, this adherence spiral can be seen in recent policies which at best can be described as ‘peculiar’ in nature (McNamee and Tarasti, Reference McNamee and Tarasti2010), and at worst are so intrusive and dogmatic in consequence that they are difficult to reconcile with the (bodily and reputational) integrity of athletes, with athletes' social, economic and human rights, including privacy, and even with the fundamental principle of proportionality which underpins the current ‘presumed fault’ approach to the sanctioning of athletes.

Specific examples here include the aforementioned burden on WADA (in the light of medico-technological developments) continuously to monitor and adjust its regulations on the distinction between therapeutic/ergogenic substances and treatment/enhancement methods. Arguably, the frequency with which amendments are made to anti-doping regulations makes such rules susceptible to the argument that athletes cannot reasonably be expected to have constructive notice of what substance or method is prohibited at a given time, and thus opens the system as a whole to the criticism that it is arbitrary in nature, lacks clarity and is at odds with the principle of legal certainty.Footnote ¹⁴ Other WADC-related provisions that might potentially attract litigation include the so-called ‘whereabouts’ rule,Footnote ¹⁵ the blood profiling of athletes' samples,Footnote ¹⁶ and moves in certain jurisdictions to criminalise sports doping.Footnote ¹⁷

Reflecting on all of these policies, it must be asked how much further does WADA think it can go in order to adhere to its current zero-tolerance approach, and how much further will the courts allow it to proceed in acting so invasively towards athletes? Further, the above is indicative of what many criminologists would see as the third and arguably most important elemental flaw in a zero tolerance approach: it reflects and is invariably accompanied by a ‘populist punitiveness’ (Simon, Reference Simon2007, p. 23). Simon, echoing Garland (Reference Garland2001), holds that this contemporary crime control mentality ‘stresses personal responsibility, rather than collective risk spreading … with a harshly enforced, highly moralistic criminal law promising almost total protection against crime, while emphasizing how dangerous the world is despite these much needed measures’.

Simon discusses the negative impact that this mentality has had on the family unit, on schools and in workplaces in the US. In the workplace, for example, he notes that the fear of violence, fraud, drug use or even that an employee might ‘go postal’ (Simon, Reference Simon2007, p. 248), has now led to the routine but invasive use of pre-employment security screening, drug testing, CCTV monitoring and micro-managerialism (pp. 233–57). This ‘eternal vigilance’ in turn leads to a needlessly heightened sense of anxiety at the workplace, where (aggravated by the decline of union representation, structured dialogue and collective bargaining) key relationships of trust and confidence (between the employees but also employee to employee) are undermined because ultimately everyone in the workplace is stigmatised by the fact that the implication is that without constant monitoring they are likely to misbehave. Simon summarises his analysis (p. 257) with reference to Oliver Wendell Holmes's (Reference Holmes1881) description of ‘law for the bad man’ who ‘must be constantly monitored and penalized, for he cannot be expected to operate on the basis of any loyalties’.

It is argued that all of the above – the propensity for penal excess, the corrosive sense of anxiety, the erosion of trust between the regulator and the regulated, the collective characterisation of athletes as ‘bad’ people, as aggravated by lack of a genuine voice for athletes in policy-making – apply to the doping control mentality of contemporary sport. The stigmatisation of athletes is particularly acute given that its impact is such that almost every new, extraordinary feat of endurance or speed by an athlete or cyclist or swimmer is met with a level of incredulity, even cynicism, by the general public founded on the assumption, and even the presumption, of cheating. Accordingly, many athletes encounter a situation where any generalised notion of innocent unless proven otherwise is replaced by one of guilt by rumour or association. Four further points echo from Simon's work into the present topic.

First, Simon asserts that the central rationality of the contemporary crime mentality is premised on the ‘vulnerabilities and needs’ of victims (Simon, Reference Simon2007, p. 76). Simon argues that the over-idealisation of the victim means that in time the accompanying criminal code ‘will systematically favour vengeance and ritual rage’ over crime prevention, fear reduction and the rights of defendants (p. 106). Applying this to sport – where the victim of anti-doping infractions is ultimately the ‘spirit of sport’, such that the true ethos of sport is held by WADA to be degraded and diminished by anyone who takes PEDs – vengeance, ritualised rage, anxiety and moral panic about ‘cheats’ are characteristics of the current regulatory response in sport to doping, and in the accompanying din the debate on alternatives such as harm reductionism goes unheard.

Simon's second point concerns the supposition that a safer community for (us all as potential) victims of crime can only be secured by legislation promoting mandatory sentencing. He observes:

Again, this resonates with current anti-doping policy, where the regulatory response is based on zero tolerance, where ‘effective’ prosecutorial and punitive discretion has been delegated to WADA and national anti-doping agencies, and where the ‘law-making’ voice speaks incessantly about the ‘presumed fault’ of athletes. In this, a weakness of the current system is revealed – its blunt uniformity. This bluntness, which is driven by a fear of giving excessive rights to ‘cheaters’, including a genuine apprehension of the lengthy and costly hearing that might result if a defendant's mens rea had to be considered, means that WADC regulations fail, at the critical prosecution or charging stage in the doping disciplinary process, to differentiate between ‘committed’ cheats, who intended to enhance their performance, and those who make mistakes either negligently or through no fault of their own. Again, this blunt uniformity has a stigmatising effect on athletes.

The third point overlaps with the above in that Simon takes the view that the promotion of mandatory sentencing statutes in the US criminal justice system has resulted in ‘judicial neutering’, such that many contemporary criminal law judges play a largely passive role in their courtroom and are what he calls ‘judgment machines’ (Simon, Reference Simon2007, p. 140). The nuanced individualisation of punishment by the trial judge (who will have seen, heard and weighed the totality of evidence) is effectively supplanted, such that the some criminal trials are now in consequence almost entirely administrative in nature rather than properly adjudicatory. Genuine deliberation and argument, if it occurs at all, is largely confined to any possible mitigation of sentence, and even then ‘the length of prison sentence is established in its basic parameters either by a complex and prescribed calculus of sentencing factors’ (p. 129). A brief perusal of doping-related cases at CAS illustrates that Simon's analysis could be applied with equal force to the workings of the WADC, and particularly to the mandatory sentencing provided in Articles 10.2 and 10.3WADC and the calculus of mitigation provided by Articles 10.4 and 10.5WADC.

So what is to be done? Simon ends his analysis of the contemporary crime control mentality by arguing that in the US an increasingly technologically engaged public is beginning to question the culture of control inherent in the ‘war’ on crime (which post-9/11 gave way to the ‘war’ on terror), and to view the response of policy-makers, such as zero tolerance or the Patriot Act 2001, as dangerously ineffective, empty and largely symbolic in nature (Simon, Reference Simon2007, pp. 259–83). The pattern is similar in the UK, where the public began to tire of the ‘obsessive law-making’ (O'Neill, Reference O'Neill2010) that accompanied New Labour's time in government, when it created 4,300 new criminal offences and enacted nearly thirty separate crime and criminal justice related statutes (Centre for Crime and Justice Studies, 2011).

In application to sport, frenzied promises by, for example, the organisers of the London Olympics in 2012 that the Games would feature both a ‘world record’ of 5,000 in-competition tests for PEDs, and the introduction of ever more sensitive testing techniques for ever more sophisticated doping methods, such as human growth hormone, at a purpose-built GlaxoSmithKline laboratory in north London (Magnay, Reference Magnay2011), also have a cosmetic air to them, which may only contribute to the public's ‘doping lassitude’ towards doping-related sports stories in the media.

Simon argues that the need to address the social and governance pathologies caused by the contemporary mentality of governing through crime should be replaced by a different narrative. The narrative he uses is that which he argues has been applied successfully in the ‘war’ on cancer in the US, with its emphasis on the wider public health benefits of a preventative approach rather than a narrow focus on the treatment consequences for the individual cancer ‘victim’, and how this has been achieved by identifying risk factors (such as diet and lifestyle) and acting to reduce the associated harm through education, information and early diagnosis schemes (Simon, Reference Simon2007, pp. 259–83).

Applying this to sport, there is a need to replace the extant sporting and governance pathologies caused by the contemporary mentality of ‘governing through doping’ with a different narrative. This narrative should be based on a harm reductionist approach to doping in sport, focusing on the causes of doping (profiling why athletes feel the need to take PEDs and educating them to resist the temptation or desist from taking PEDs) rather than the consequences of doping (pursuing dopers and cheats and punishing them accordingly pour encourager les autres).

The current approach to doping in sport: repeal of prohibition?

The analogy here is to the discourse in criminal law theory as to when an activity or conduct should or should not be criminalised. Although there is no unifying theory of criminalisation (in the sense that a combination of objectives may account for any specific criminal offence such as the harm principle, upholding moral standards, advancing communitarian goals, etc.), the ‘normal presumption must be against state coercion on grounds of morality and paternalism alone’ (Wilson, Reference Wilson2002, p. 42). Accordingly, although all criminal legislation carries with it some undesirable side effects (such as the increased surveillance of certain groups or even the conviction of some innocent people), where the side effects of proposed legislation can be adjudged to be so harmful, serious and/or extensive that they more than offset any (moral/ communitarian) ‘good’ the new statute might produce, then criminalisation of the activity cannot be justified (Law Commission of England and Wales, 1995, p. 277).

In this light, does the current policy on PEDs strike the appropriate balance between ‘cure’ and ‘side effect’? It is suggested that the answer must in the negative. Moreover, emerging research appears to be suggesting that the flaws identified previously – financial, ethical, moral, etc. – are now accompanied by public health concerns relating to the fact that a ‘side effect’ of current anti-doping regulation is that athletes, especially younger participants, are seeking out ‘underground’ means of sourcing PEDs, from anabolic steroids to growth hormones (Buzzini, Reference Buzzini2007). Evidently, the accompanying medical controls are non-existent and thus athletes are currently risking their health because of counterfeit and poorly controlled products. As an example, Graham et al. (Reference Graham, Ryan, Baker, Davies, Thomas, Cooper, Evans, Easmon, Walker, Cowan and Kicman2009, p. 142) point to a WADA study indicating that 53 per cent of injectable steroids and 23 per cent of oral tablets found on the black market (in this case, unregulated sources purchased on the Internet) were counterfeit. Moreover, by purchasing products on the Web the athletes may be exposing themselves not just to health risks but to an array of secondary criminality, including consumer fraud, trafficking-related offences and even money laundering and tax evasion.Footnote ¹⁸

In the light of the above, it is argued that future sports historians might well look back at the current era on doping in sport in the same way that legal historians now view the Prohibition era in the US (1920–1933), which has been long used as an example of the dangers of coercive legislation inspired by a moral panic and premised on grounds of paternalism alone (Woodiwiss, Reference Woodiwiss1988). By 1933 it had been realised that by prohibiting a substance that was already in high demand, Prohibtion had merely promoted a ‘black’ market in alcohol, which infamously facilitated both secondary criminality and the growth of organised crime in the US (Woodiwiss, Reference Woodiwiss2001). Moreover, and it is here that the resonance with sports doping is at is starkest, it was also observed that Prohibition aggravated the problem (alcohol abuse) it had sought to eradicate because the policy carried its own intrinsic public health harms – the quality of alcohol was unregulated and thus the incidence of death from alcohol poisoning, principally from home brews, rose in the years 1920 to 1933 (Coffey, Reference Coffey1975, pp. 196–98). Lippmann's verdict on alcohol prohibition invoked:

A similar ‘circle of impotence’ could be said to encompass current anti-doping regulation, whereby the constructed response to the perceived threat is based on exclusionary and intuitive notions of athlete morality and the social value of sport by the dominant administrative stakeholders in sport who, by stubbornly imposing this ‘collective habitus’ or ‘ideological will’ (Stewart, Adair and Smith, Reference Stewart, Adair and Smith2011, p. 242) on sport as a whole, have not just failed credibly to address the matter of doping but may in fact be aggravating it. In a broader perspective, criticism of alcohol prohibition and the current approach to PEDs reflects that which surrounds the continuing policy on the criminalisation of drugs more generally and the ‘curiously self justifying logic … in which the harms of prohibition – such as drug related organised crime and death from contaminated heroin – are conflated with harms of drug use … [and thus] … bolster the apparent menace of drugs and justify the continuation, or intensification of, prohibition.’ (Rolles, Reference Rolles2010)

At public policy level, this attitude to drugs has helped to create an environment that ‘routinely ignores or actively suppresses critical scientific engagement and is uniquely divorced from most public health and social policy norms, such as the evaluation of interventions using established indicators of health and wellbeing’ (Rolles, Reference Rolles2010). Similarly, at the high level of sports policy, the current attitude to PEDs is perpetuated by ‘a climate where contradictory evidence is sidelined’ (Stewart et al., Reference Stewart, Adair and Smith2011, p. 242). The ‘sidelining’ of alternatives in both the societal drugs and sports doping debate is reinforced in two further ways.

The first relates to the fact that, although prohibition as a punitive policy can generate substantial collateral damage to the rights of individuals, nevertheless, blaming and targeting international drug traffickers and sports dopers is ‘politically easier’ than dealing honestly with the demand for psychoactive and performance enhancing substances (Andreas and Nadelmann, Reference Andreas and Nadelmann2006, p. 251). In sum, the faith shown by policy-makers in the current approach, in the face of its clear failure to address the demand for recreational / performance enhancing drugs and its many, albeit, unintended negative consequences, highlights the ‘seductive folly’ of prohibition (O'Mahony, Reference O'Mahony2008).

The second ‘sidelining’ reason relates to the fact that the ‘eloquence’ of the critiques of the drug problem in society (and in sport) has ‘not been matched by a vision for its replacement. Unless a credible public health led model of drug market regulation is proposed, myths and misrepresentations will inevitably fill the void’ (Rolles, Reference Rolles2010). The alternative model for the regulation of drug use in society tends to favour a limited and balanced abandonment of current penal policy, in favour of a medical ‘harm reductionist’ policy (Babor et al., Reference Babor, Caulkins, Edwards, Fischer, Foxcroft, Humphreys, Obot, Rehm, Reuter, Room, Rossow and Strang2010; Benavie, Reference Benavie2008; Gray, Reference Gray2001). The latter is further predicated on two pragmatic principles – a concession that universal abstinence is unlikely ever to be enforced by law or regulation and the reality of the current high level of demand for drugs. It is also accompanied by initiatives such as the decriminalisation of personalised possession and use of certain drugs and education programmes designed ‘to promote a more informed and responsible attitude towards mood-altering substances’ (O'Mahony, Reference O'Mahony2008, p. 228).

In further support of this alternative, proponents highlight that despite a hostile ideological environment, harm reductionist policies are finding favour globally – ninety-three countries are now using it in practice – and have been especially effective in curbing the spread of HIV and hepatitis infection among injecting drug users (Rolles, Reference Rolles2010). Moreover, reports from individual jurisdictions which have implemented limited decriminalisation policies, such as Portugal, are reporting positively on the initiative in terms of a levelling off of drug usage rates, an easing in the resource pressures on the criminal justice system and a marked decline in drug related pathologies such as sexually transmitted diseases and deaths due to drug use (Hughes and Stevens, Reference Hughes and Stevens2010).

What follows is an attempt to sketch the parameters of a sports doping regulatory model based on harm reductionist principles.

Theoretical paradigm

The Savulescu-Kayser proposal is rooted theoretically in soft paternalism, which with reference to its normative use in criminalisation theory can be defined as the right of the state to prevent self-regarding harmful conduct when, but only when, that conduct is either a result of a coerced, substantially non-voluntary choice or is clearly an uninformed, irrational choice, and including any temporary intervention necessary to establish whether the conduct might be voluntary or rational (Feinberg, Reference Feinberg1986, p. 120). Soft paternalism, refined by Sunstein and Thaler (Reference Sunstein and Thaler2003) into ‘libertarian paternalism’ (which is the approach used here) not only blunts the shaper edges of hard paternalistic solutions (most notably its coercive tendencies, unintended negative consequences, and reliance on dogma and a priori assumptions), it also appeals to the pragmatic or humanist side of liberalism. The key question is whether this approach can provide a platform for a consistent, sports-specific morality on PED-taking that is both ethical in its conception and sustainable in its regulatory application.

Ethical and moral premise

The Savulescu-Kayser proposal is premised controversially on a rebuttal of a key extant ethical presumption in the fight against drugs in sport – that a sporting achievement should in the spirit of fair play reflect the participant's natural athletic capacity. In contrast, in arguing that sporting success is very much ‘a genetic lottery’, Savulescu et al. (Reference Savulescu, Foddy and Clayton2004, p. 667) opine that ‘sport discriminates against the genetically unfit. Sport is the province of the genetic elite (or freak)’ and highlight the story of the Finnish skier, and multiple Olympian gold medallist in the 1960s, Eero Maentyranta, whose success was in part attributable to the fact that he had a ‘natural’ genetic mutation that meant that his blood delivered 40–50 per cent more oxygen to the muscles than the average. A modern example would be that of Spanish cyclist Miguel Indurain, who won the Tour de France on five occasions in the 1990s and who, it is claimed, had a lung capacity of eight litres compared to an average of six.

Moreover, Kayser et al. (Reference Kayser, Mauron and Miah2007) observe that, in addition to genetics, ‘several other contingent facts about athletes’ circumstances fail to be reflected adequately in the current ethical framework of anti-doping'; for instance, biological or environmental inequality. On the former, the (almost total) dominance of Kenyan athletes in elite middle-distance athletics might be said to be related to the fact that they train at altitudes of almost 8,000 feet in that country's Great Rift Valley and thus benefit from natural advantages in terms of oxygen intake capacity.Footnote ¹⁹ On the latter, and depending on the nationality and sports speciality of an athlete, there may be gross inequality in their ‘access to care, supervision and high quality medical and technological supervision’. Consequently, Kayser et al., suggest that ‘from the perspective of equality, supervised doping practice is likely to provide the greater prospect of ensuring equality of competition’, rather than the undeserved inequalities of the extant policy, which is based on genetic capacity. But how might this supervised, controlled scheme work?

How might the Savulescu–Kayser proposal work?

Savulescu et al. (Reference Savulescu, Foddy and Clayton2004, p. 670) advocate that ‘if a drug does not expose an athlete to excessive risk, we should allow it even if it enhances performance’. The practical repercussions of this approach would be that current prohibitions on the use of certain drugs would be abolished entirely, though others, for example certain forms of anabolic steroids, would remain proscribed given the well-established dangers involved. For a number of other doping methods – Savulescu et al. (p. 668) use the example of EPO – the system would be designed around permitting medically supervised ‘doping’ up to a prescribed ‘safe’ level.

The overall regulatory enforcement and oversight of this new approach could be realised in the transformation of WADA into a global sports-focused drugs and health-care regulatory agency (along the lines of the US Food and Drug Agency) whose primary responsibility would be to protect athletes by assuring the safety, efficacy and security of PEDs and biological methods, and to advance athletes' health by helping them obtain the accurate, science-based information they need to use such drugs and methods in order to improve their performance in a controlled and safe environment. Over time, adoption of the Savulescu-Kayser proposal would likely have three marked advantages over current anti-doping policy.

In the immediate term, it is suggested that the proposal would addresses the inequities of the current system that exist in terms of genetics and environment and which can also result in honest and less well-resourced athletes having to miss out on the physical and psychological advantages that ‘cheaters enjoy’. In the medium term, the Savulescu-Kayser proposal would significantly ease the administrative and legal burdens associated with anti-doping schemes on sports bodies by, for example, undermining the problems resulting from the rigidity and disproportionality of strict liability (Savulescu et al., Reference Savulescu, Foddy and Clayton2004, p. 670). Similarly, the current approach whereby athletes engage in lengthy, costly and disruptive appeal and arbitration hearings seeking to contest doping sanctions – and sometimes by forwarding the most unlikely and even bizarre excuses for the inadvertent ingestion of PEDs such as traces found in contaminated meat, sexual enhancement products, food supplements, etc. – would be avoided. In the long term, the safety driven approach might have the flexibility to deal with the challenges that will be presented by the application of genetic technologies to sport, including the ‘morality’ of such enhancement (Harris, Reference Harris2007). The argument here is that if such technologies are proven to be safe, sport should not be afraid to embrace these progressive technologies and the biological manipulation they entail, at least to the point where the use of the technology remains ‘constitutive’ of our humanness (Miah, Reference Miah2004).

Might the harm reductionist / safety liability approach ever be contemplated?

Bluntly, and for a number of reasons, a Savulescu-Kayser type proposal is not being contemplated at any level in international sports administration: faith in and loyalty to the efficacy of the current approach to which significant institutional investment (WADA) and financial resources (by governments and international sports federations) have been diverted (Catlin, Fitch and Ljungqvist, Reference Catlin, Fitch and Ljungqvist2008; Bowers, Reference Bowers2009), the sharply radical nature of the change suggested, and, admittedly, a certain immaturity in the Savulescu-Kayser proposal (Noakes, Reference Noakes2006; Dixon, Reference Dixon2008; Wiesing, Reference Wiesing2011).

In addition, a fundamental criticism of the Savulescu-Kayser proposal focuses on those directly affected – the athletes. Savulescu-Kayser proclaims to be a pragmatic attempt ‘to draft sporting rules to which athletes are willing to adhere’ (Savulescu et al., Reference Savulescu, Foddy and Clayton2004, p. 669). The riposte is that the proposal panders to the minority of athletes who under current anti-doping policy are clearly cheating, and the inevitable outcome of Savulescu-Kayser would be that it would quickly transform elite sport into a pharmaceutical-infused charade. Put simply, ‘the low ethical standards of others provides no justification for lowering one's own’ (Houlihan, Reference Houlihan2002, p. 137), and thus Savulescu-Kayser is vulnerable to the criticism that it underestimates both modern athletes' commitment to fair play as sport's universal, immutable virtue, and their genuine attempts to abide by the rules that seek to give expression to that virtue principally because it is in their mutual interest to do so. What is meant by this final point is that, outside anti-doping regulation, athletes generally operate in an intensively rule-bound environment and, although they regularly bend, break and even ignore individual rules, the ‘probity’ of the system as a whole is bound together by athletes' recognition of the mutual benefits of adhering to a generalised notion of ‘systematic restraint’ (Carolan, Reference Carolan2006, p. 43).