Introduction
Humans have always shown an extraordinary creativity in trying to get a physical edge on other humans. Each innovation has had side effects, both positive and negative. The innovations in techniques that current athletes seek and use to garner a competitive advantage are a natural continuation of this longstanding pattern of behavior.
In recent decades, there has been increasingly comprehensive legislative and regulatory activity at various levels regarding the use of such performance enhancing substances and techniques. There are strongly propounded arguments both for and against these legal and regulatory prohibitions.
For sports commissions, in particular, the responsibility of enforcing current laws and rules raises a number of ethical issues. In this paper, the arguments both for and against the legalization of performance enhancing drugs will be reviewed, and the perspective and ethical considerations relevant to a hypothetical sports commissioner will be examined.
For regulatory and legislative bodies, and for the physicians and allied medical personnel involved in the care of athletes, research into the science of performance, and consumer education, it is critical to understand what techniques and substances are currently available and what their impacts are. There are manifold medical arguments against the use of many substances and technologies.
However, there are equally strongly held beliefs on the other hand that the use of performance enhancing techniques are safer if permitted, regulated, and seen, than when prohibited, illegal, and uncontrolled.
Individual commissioners, who have a direct impact on how the issue of performance enhancements is handled, may have strong feelings, and experience powerful pressures, one way or another, about these issues, based on their personal experience.
The ethical frameworks that such prominent and responsible individuals adhere to, far from inhabiting the wispy realms of philosophy, affect their decision-making directly. The choices that such officials make can shape the way athletes compete throughout a sport and how fans support and appreciate the sport.
Performance enhancement in historical context
The human species is characterized by a persistent urge to modify itself or enhance its abilities in order to achieve an advantage, whether against prey animals or other people.
From the first spear thrower that offered a Cro-Magnon hunter a fighting chance against a large mammal, to the (presumably) mythical breast removal that the Amazon women were reputed to have performed to ensure unfettered archery, to the chewing of coca leaves by Andean populations to inure the body to pain, cold, and fatigue, to the most modern gene therapy, humans try to become better physically.
Every action along these lines has an impact above and beyond the obvious ones.
The glorification of the athlete is not new either. The ill-fated Athenian soldier, Feidipides, who ran 150 miles in 2 days to report victory against Sparta, was an early exemplar of the ‘superhuman”, “ideal” athlete that we still honor today. This event was so striking that it inspired the event of the marathon in the first modern Olympiad.
Even today, the image of the long distance runner achieving the apparently impossible inspires literally thousands to emulate Feidipides in cities such as Boston, New York, and Philadelphia, sometimes even to the point of dying in the attempt, just as he did .
There is attestation that even the 7th century Greeks tried to enhance performance of their athlete heroes with psychoactive mushrooms, brandy, sesame seeds, and other similar traditional herbal and food remedies . We know that a participant in the third modern Olympiad, in 1896, used a strychnine injection during a foot race. By 1928, there was a written policy on drugs at the Olympics . Clearly, little is new under the sun.
As the number and effectiveness of potential performance enhancers has expanded, and use has expanded , the interest of sports bodies, the medical and allied professions, and regulatory and legislative entities has increased as well. The result has been an increasing specificity of laws, regulations, and rules, accompanied by increasing sanctions.
The interest of legislators focused on the use of steroids, a category first understood in the1950s as used in baseball, in particular, in the 1980s.
The US Congress held hearings from 1988 to 1990, and in spite of the opposition of government agencies such as the Food and Drug Administration, the Drug Enforcement Administration, the National Institute on Drug Abuse, as well as the American Medical Association, the legislature passed the Anabolic Steroid Control Act in 1990.
The concern of Congress seemed, according to Collins, to be primarily focuses on the control of cheating in sport through legislation. The American Medical Association testified, at the time, that steroids were not physiologically or psychologically addictive in the same way that, for example, barbiturates are .
The 1990 Act placed steroids on Schedule 3 of the pre-existing Controlled Substances Act . This was the same category as controlled substances such as narcotics, LSD or its precursor chemicals, ketamine, and barbiturates. All of these are defined by the law as follows:
“(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II. (B) The drug or other substance has a currently accepted medical use in treatment in the United States. (C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.”
In 1993, the International Olympic Committee took action to forestall the tide of performance enhancing drugs. They published a rather broad definition of inappropriate practices as follows:
“the administration of or use by a competing athlete of any substance foreign to the body or any physiological substance taken in abnormal quantity or by an abnormal route of entry into the body with sole intention of increasing in an artificial and unfair manner his/her performance in competition.
When necessity demands medical treatment with any substance which because of its nature, dosage, or application is able to boost the athlete’s performance in competition in an artificial and unfair manner, this too is regarded by the IOC as doping.”
The continuing issue of athletic drug use has spawned other regulatory and monitoring entities. In 2000, an organization was established to coordinate US efforts regarding Olympic competitors.
“The stated mission of the United States Association of Drug Agencies (USADA), the official anti-doping agency for America’s Olympic athletes, is to preserve ‘the wellbeing of Olympic sport, the integrity of competition, and the ensuring health of athletes.’ ”
Before January 2005, steroid precursors could be purchased in health food stores, legally. Doctors could prescribe anabolic steroids, legally. 2004 testimony before Congress by the DEA asserted that not only steroids, but also the precursor substances, which were being marketed as dietary supplements, needed to be controlled.
The DEA also contended that the previous requirement that substances be demonstrated in laboratory studies to increase muscle growth constituted a major loophole for the introduction of new “designer” chemicals.
The passage of the Anabolic Steroid Control Act of 2004 made prescription and possession of all these substances for other than medical reasons a criminal act punishable with jail time. This spawned a black market. As one fitness industry businessperson put it,
“Where once you could take them [steroids] under a doctor’s supervision, now, you had to turn to the black market to find them. The irony here is that almost no doctor was ever going to prescribe steroids to teenage guys, but the black market dealer has no problem doing so”
Partially as a result of the 2008 police raids and discoveries of various performance enhancing substances during the Tour de France, the World Anti-Doping Agency was founded “to promote, coordinate, and monitor the fight against doping in sport in all its forms” .
The list of possible enhancements is long and getting longer. To avert exactly this problem of the public creating and using new substances that were not explicitly mentioned on the list, the 2004 legislation included the following four qualifying questions:
- “Is the steroid chemically related to testosterone?
- Is the steroid pharmacologically related to testosterone?
- Is the steroid an estrogen, progestin, or corticosteroid?
- Does the steroid promote muscle growth?”
Arguments against legalizing performance-enhancing agents
Many of those who oppose legalizing performing enhancing agents, including all those substances implied above, are concerned with the health of the athletes, as well as the spirit of sport. They point to evidence that substances used to enhance performance carry some sort of potential risk associated with them.
The opponents of legalization also object to the perceived inequity between athletes that these substances impose. By substituting substances for effort or supplementing effort, the use of drugs changes the competition from one that occurs between people to one that occurs between dueling prescriptions.
Medical risks over the long term include potential damage to the liver, the heart, and other organ systems. Studies by Baggish, et alia suggest an association with left ventricular dysfunction, for example . Ritesh, et alia, list cardio-toxicities, including those causing sudden death, associated especially with ephedra but also with anabolic steroids.
Wingert, et alia, records the case of hepatitis and personality changes associated with the use of hormone precursors, and their subsequent complete disappearance when the steroid use was discontinued.
Schwingel, et alia, suggest that anabolic steroids play a role in toxicant-associated fatty liver disease in individuals with no other risk factors, such as excessive body fat. All these scholarly investigations demonstrate the kind of harm that performance enhancing agents can cause .
The effect of legalization on the nature of sporting competition disturbs some observers nearly as much as the potential health impacts. Opponents are dismayed at the prospect of the transformation of sport into a chemical arms race. The uneven distribution of athletic talent has been described as a ‘natural lottery’, in which those lucky enough to have helpful characteristics are accorded an advantage relative to their peers.
Some opponents of legalization assert that doping would not entirely eliminate such unevenness, but add to it the additional differences between individuals in their response to various drugs. The skill of the prescribing physician, in the view of opponents to permitting PEDs, could become as important a determinant of success as the effort and commitment of the athlete .
The implications of this change are well expressed by Weising. ” There would be no gain in ‘justice’ (i.e. fairer results that reflected efforts made) for athletes as a result of legalizing doping” . Weising does not, thus, trust that the addition of legalized drugs, across the board, to athletes, would ‘level the playing field’.
Weising goes on to assert that, “Legalization would not reduce restrictions on athletes’ freedom; the control effort would remain the same, if not increased”.
To be otherwise than an invitation for disaster, legalized performance enhancing drugs would need close monitoring, and thus a great deal of additional testing. Weising thus envisions even more frequent and stringently administered tests, limiting the mobility and autonomy of athletes.
Weising’s vision of a world of legalized drugs includes “Extremely complicated international regulations”. He also foresees a continued attempt on the part of athletes and their backers to come up with practices which are either undetectable or not yet prohibited in any way.
The relationship with fans is another potential casualty of legalization, in Weising’s view. He suggests that,“Audience mistrust, particularly toward athletes who achieved outstanding feats, would remain because it would still be possible that these athletes were reliant on illegal doping practices.
Doping entails exposing the athletes to avoidable risks that do not need to be taken to increase the appeal of a sport. Most importantly, the function of sport as a role model would definitely be damaged. It is not necessary to clarify the question of what constitutes the ‘spirit of sport’ and whether this may be changed”
There are many additional concerns associated with legalization of PEDS. For example, the cost of drugs is an extra expense above and beyond the normal demands of training and good nutrition. This could constitute a burden on athletes from disadvantaged families or poorer countries. As long as athletes are prohibited from using such substances, they can honorably and proudly avoid using them and train “clean”.
However, if these substances were legalized, there is a chance that all athletes would feel the pressure to use such aids. Although sports among youth are outside the scope of this paper, it is also hard to avoid the conclusion that prospective athletes, even at a very early point in their lives, would see performance enhancements as a necessary part of their future development.
Some scholars suggest that the lure of performance enhancing drugs can and should be offset through emphasizing less potentially harmful alternatives. These alternatives might include protein supplements, administered at crucial moments before or after a workout or competition.
Another avenue to increased performance without drugs is the ingestion of, or carbohydrate supplements during endurance events . Oxygen breathed in before and/or after exercise has a continuing appeal, and seems to occupy a space between drug and not-drug, although its effectiveness is still unclear
Arguments for the legalization of performance enhancing agents
Although the evidence of potential harm to the athletes seems ubiquitous, and fears for the corruption of the purity of sport are manifold on the anti-legalization side, the proponents of allowing performance enhancing drugs have equally strongly held opinions.
The arguments in favor of allowing performance enhancements address the issues of fairness to all athletes and greater safety and control of drugs already de facto in use, among other concerns.
Those who favor legalization point out that the non-drug methods for increasing performance, such as high altitude training, constitute an economic barrier to less financially well-supported athletes, whereas drugs are far less expensive. Savalescu, et alia, even suggest that the money spent on current drug tests could be better allocated to the subsidy of drugs for financially strapped athletes .
There is also an objection that testing is not 100% accurate. This detracts from the fairness of the testing system . There are apparently many points at which the test can be undermined. Perhaps the most dramatic and risible is the use of a prosthetic penis filled with warmed drug-free urine to generate an apparently clean sample .
Savalescu points out that some individuals are blessed with genes that give them a greater advantage. For example, some people’s packed cell volume is naturally high. Savalescu proposes that safe values be determined on the amount of a particular substance in the blood, for example, the concentration of red blood cells, or the level of testosterone in circulation.
He suggests testing that the athlete’s blood not exceed that safe level, whether it arises from a natural genetic peculiarity of the individual, or was achieved via injections .
Currently, many athletes risk a criminal record in order to do what they feel they need to do in order to achieve their goals. This situation would largely disappear with legalization. Physicians also face a difficult decision to make regarding the risk they take now in providing drugs to athletes. Legalization would immediately remove this threat of being labeled a criminal.
The perspective from the office of a Sports Commissioner: Ethical considerations
The ethical considerations applicable to this problem are vigorously argued.
The position in which a Sports Commissioner finds him or herself vis-à-vis performance enhancements is subject to a number of competing pressures. His/her views might well depend on the relative weight the Commissioner places on the job’s responsibilities for maintaining safety, maintaining fairness, or selling tickets.
As an example of how these goals are described and ordered officially, consider the definition of the aims of the position in a recent job listing for Commissioner of a ten-college conference:
“Promoting the general well-being and growth of the GNAC by guiding and enforcing policies regarding student-athlete welfare, equal opportunity, affirmative action and equity of participation consistent with the GNAC Constitution, and principles set forth by the NCAA, 2) serving as the principal enforcement officer of NCAA and GNAC legislation, policies and regulations,…”
The ethical systems that could apply to the Commissioner’s situation are varied. It should be noted that the ethical stance of the Commissioner qua Commissioner may be different from the ethical stance of the Commissioner as a private individual. This is congruent with the distinction between duty-based, or deontic moral theories on the one hand, and personal virtue-based, or aretaic moral theories.
In other words, what the Commissioner’s duty is might be at odds with his personal ethics. (This sort of incongruity is not unheard of in public life, as witnessed by the personal/official disconnect regarding the death penalty discussed in a recent radio interview with the former head of a state correctional system. )
The ethical pressures on the Commissioner will depend on the specific goal in his job description on which he/she places greatest emphasis. Deontology, the science of duty, calls on the individual to do, or refrain from doing, certain categories of action, no matter what the obstacles, no matter what the potential for could be thought of as collateral damage.
This requires that the duty of the Commissioner be defined or “identified” . If the Commissioner accords greatest importance to the duty of protecting the health of the athletes, then he/she must protect athlete health no matter the costs.
However, what constitutes protecting athlete health? In an ideal world, a Commissioner might wish that all athletes could train and compete with no substances in their bodies except organically grown foods, unpolluted water, and air free of toxic chemicals and particulates. The Commissioner might wish, personally, that no athlete were forced to take any drug except for healing.
This is not an ideal world, however, and the reality is that all athletes are exposed to less than optimal substances, whether involuntarily, through all the toxins in their environment, and or voluntarily through ingesting various drugs and substances.
Thus, the Commissioner must, from a deontological perspective, fulfill the duty to protect athlete health in a setting where drugs are being used despite prohibitions and sanctions, both within sports, and according to national legislation.
In this imperfect environment, fulfilling the duty to protect health is obstructed by circumstances. If drug use cannot be prevented by injunction or sanction, in practical terms, then the Commissioner may choose to protect health by making the drug use the least damaging possible.
Given that resources are limited, the Commissioner may find that his/her duty lies in reducing the potential harm of use and promoting any possible beneficial use, rather than expending resources to prevent use, when it is so endemic in the sports world.
Reducing harm may, in practical terms, mean lobbying for legalization. This course of action would need to be accompanied by an associated push for assiduous monitoring of blood levels, quality controls on the manufacture of the drugs to ensure purity and sterility, and intensive education to avert the worst potential ill effects of misuse.
This distinction between “harm elimination” and “harm management” is the subject of lively debate .
Legalization would offer the Commissioner the option to focus disciplinary action and attention on the most dangerous drugs or techniques and impose sanctions differentially on users of such maximally risky substances. This is not currently possible because of the broad nature of the legislation.
This would facilitate the Commissioner’s ability to follow the duty to protect athlete health in the environment of widespread use.
Alternatively, the most important duty that the Commissioner confronts may be the preservation of “equity in sport”, or an equivalent concept . Again, in an ideal world, all talented persons would have an equal chance to obtain the training and support that they need to be their best. The real world, however, has massive inequities that affect athletes as surely as they affect the rest of the population.
If the main duty of the Commissioner is to protect the rights of all athletes, then this might also lead to adopting a stance of support for allowing performance-enhancing drugs. Such drugs can be more conveniently distributed evenly and equitably than, for example, the more cumbersome access to high altitude training to increase endurance.
Additionally, the Commissioner could accomplish the duty of preserving equity better under legalization, because the most egregious substances and practices could be openly and directly disciplined. Less dangerous or objectionable substances could be treated with situationally appropriate measures. Thus, the Commissioner might support legalization in order to fulfill his/her duty better to protect the fairness of sport.
Still a third possible duty of the Commissioner is the promotion of the sport. In this regard, drugs increase the level of achievement, and potentially contribute to terrific spectacles. On the other hand, such a course could make viewers cynical, and lead to fan abandonment of the sport. Alternatively, the legalized use of drugs could create an insatiable demand for ever-rising drama on the field and court.
The Commissioner, operating under a deontological system, would need to evaluate these alternatives and pursue the one that seemed to protect the sport best, thereby fulfilling that duty.
A different ethical system is the teleological approach. This system focuses on the results of actions rather than the duty of the individual. Under this moral theory, the Commissioner would be free to select from all the above alternatives without necessarily worrying about what his/her duty directed. The Commissioner would need to evaluate which one of these courses of action would result in the “best likely consequence”.
This moral system would require the Commissioner to design a response to the problems of, on the one hand, drugs being currently routinely used unsafely because of a lack of supervision and quality controls, and on the other hand, athletes being discredited because of the existing laws, regulations, rules and sanctions.
Faced with these issues, a Commissioner could choose to support legalization and intense monitoring, and hope to achieve the best of outcomes in a teleologically sound fashion.
The teleological system is congruent with a utilitarian perspective on individual acts, which asks which choice leads to the best result for the most people . If the Commissioner can identify, and implement, which course of action helps the largest number of athletes and fans, then that is the most utilitarian choice.
The choice to push for legalization and implement a concerted program of controls could be the one that pleases the most people, and might therefore constitute the most utilitarian act.
The existential perspective would lead the Commissioner to push for legalization because each individual is, in this view, responsible to follow his or her own conscience. Legalization would allow each athlete to make this decision personally and freely without pressure from the legal system.
The issue of who (in the medical insurance system) takes care of the person after they have made decisions that turn out badly appears not to be resolved under this ethical system.
Conclusion
The issue of performance enhancing drugs, substances, and techniques, is complex and the ethics associated with it are thorny, as well.
Although the long term health consequences of any such practice are an ongoing concern, and the long term impact of such practices on the relationship of sport and its fans is still not fully tested by experience, a sports Commissioner can find ethical support from several moral systems for his/her advocacy for legalization.
Such legalization would need to be combined with careful and consistent monitoring, controls on manufacturing, and in-depth education of everyone involved in the process.
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