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Tuesday, 12 February 2013

Sport and the law: should performance-enhancing drugs be banned?

Following on from the Lance Armstrong scandal comes news that a major report into Australian sport has concluded that the use of performance-enhancing drugs (PEDs) is widespread throughout major events in that country. Before asking what can be done about this situation, it is worth considering whether anything needs to be. The issue of illegal drugs in general society is hotly debated in every respect – not least in the sense of whether any drugs should be illegal at all – and if anything the arguments about legalising sporting drugs are stronger. In a recent editorial in the New Zealand Law Journal ([2012] NZLJ 321), Bernard Robertson argues that objections to PEDs are rather reminiscent of the backward-looking geriatrics in Chariots of Fire complaining about professional coaches.

The primary objection to illegal drugs in society is that they harm the user and so, for paternalistic reasons, the state should ban them. In the sporting context this ignores two things. First, many PEDs are not otherwise illegal and so the state does not consider them to pose a significant enough health risk to warrant being banned.

Secondly, talk of the threat to the health of athletes ignores the fact that many sports at the highest level carry severe long-term health risks anyway. Gymnastics, for example, has well-documented risks of long-term serious back problems, as does weightlifting, or fast bowling in cricket. Then there is boxing, where brain damage is a mathematical certainty for professionals who have any sort of long-term career. In all of those cases, we leave it to the individual athletes to make the choice about how hard to train and therefore what health implications they are willing to risk. There is no principled distinction between the risks of boxing and the risks of taking PEDs; both are for the individual to judge. At most, the health risk of PEDs is an argument for athletes to be well-informed, so they may judge the trade-off between success when young and health issues when old. It is not a conclusive argument for PEDs to be banned as such.

The next objection is that PEDs give the athletes who take them an unfair advantage over those who do not. But, at the level of professional sport, many things also offer advantages to some countries and some athletes over others that no-one thinks of banning, primarily the quality of training facilities and coaching available. Some entire sports contain barriers to entry which preclude most of the world’s population from ever aspiring to compete internationally. The cost of an Olympic bicycle, for example, never mind the velodrome in which to ride it, is prohibitive for about 99% of the globe; so too rowing boats, equestrian facilities, sail boats and indeed most Olympic sports in which Great Britain tends to excel (Britain’s authorities having cleverly worked out that their great comparative wealth could enable them to invest in expensive niche sports where the number of competitors would be very few compared with cheaper events).

Unfairness, therefore, cannot by itself justify the banning of performance-enhancing drugs, or at least not without looking like an arbitrary decision compared with all the other equally unfair things currently permitted.

A related objection is that PEDs are “unsporting” in a broader sense. As Mr Robertson points out in the editorial mentioned above, this sort of objection is more than a shade redolent of the debates over amateur and professional sport in years past. For years the rugby union authorities stubbornly came out with pious utterances about money sullying the purity of sport, while they themselves pocketed salaries and bonuses as administrators quite happily. They also cheerfully ignored the fact that the concept of amateur status – the paradigmatic example of which was the distinction between Gentlemen and Players in county cricket – was originally devised as a way of keeping the working class out of sport because they could not afford the time off to practice.

There are two stronger arguments for banning PEDs. The first is that the paying public expects PEDs to be banned as “unsporting” whether there is a rational reason for it or not. Indeed, watching sport does not have to be a matter of hard logic, so reason does not have to have the last word. To the extent that there is a rational explanation, it would probably be along the lines that the natural admiration one has for great players does not exist so far as their achievements are down to PEDs as opposed to hard training or natural ability.

The second reason is that even if Britain convinces itself that PEDs should be permitted, most of the rest of the sporting world disagrees and so Britain will find itself a pariah if it legalises them. Again, the reasoned arguments for or against PEDs do not really come into it; if everyone else disagrees then Britain will have to go along with it in order to be allowed to play.

If those two points are accepted, however, it does not follow that PEDs have to be banned by the state as opposed to individual sporting authorities. The latter are better placed to judge what the public might or might not accept, and will learn swiftly by means of gate receipts if they get it wrong. It is already the case in that different substances are banned in some sports and not others. Anabolic steroids would not, one imagines, help someone play snooker, but drugs steadying nerves or sharpening senses might; the reverse would be the case for weightlifting. Individual sporting bodies cannot impose criminal sanctions but they can impose life bans and strip titles from competitors, which ought to be effective enough as a punishment. Then again, the individual sporting authorities may not (save in respect of very large and powerful ones such as in football) have the resources to police PEDs on their own.

Of course the ban on PEDs has resulted in an arms race between methods of detection and methods of evasion. Difficulties in enforcement are always cited as a reason for not banning drugs in wider society, though the point can hardly be decisive: if it was difficult to stop murder, it would not be a reason to give up trying.

As Mr Robertson cautions, allowing the state to interfere with sport is a dangerous move. We might agree with it helping sporting authorities eradicate PEDs. But it was the Communist bloc which provided the worst examples of the health of athletes being sacrificed for short term gains, and needless to say that was a result of the state believing it had a monopoly on what was best for everyone. Sport is normally, and rightly, considered a private activity constituted by a series of contracts between organisers, sponsors, players and the public; allowing the state to supervene requires caution to say the least.

Coda: an amusing legal story comes from the United States, where Mr Armstrong’s autobiography has been moved from the non-fiction sections of bookshops to the fiction sections. He is also apparently to be sued by readers who thought they were buying the former category of book and not the latter. It rather goes without saying that Mr Armstrong, though purporting to offer a true story of his career in his book, was not making some legally binding commitment in doing so. If it were otherwise, would there be a single memoir by a public figure of the past hundred years (or ever) which would not be vulnerable to the same challenge?

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