Cultural dynamics of the anti-doping regime by James A.R. Nafziger

Cultural dynamics of the anti-doping regime

 

by James A.R. Nafziger[1]

 

Sports competition is a fundamental aspect of culture around the world. It is therefore surprising that the relationship between sports and culture is sometimes viewed as disjunctive rather than conjunctive. For example, governments designate ministries of sports and culture, as if they were distinct. The London Olympic Organizing Committee, bidding successfully for the 2012 Games, promised “cultural” exhibits and activities in addition to sports events. And within UNESCO, the United Nations Educational, Scientific and Cultural Organization, sports activity generally falls under the rubric of education, not culture. Still, distinctions between “sports” and “culture” are essentially semantic, colloquial, and perhaps bureaucratic. The traditions and patterns of athletic activity, accompanied by a complex of social expectations and formal sanctions, surely brings sports competition within the framework of relationships between culture and law that defines the broad field of cultural law.

 

In forecasting trends in this body of law, the challenge is to define the cultural variables that are apt to be the most influential. This essay is one attempt to do so by focusing on doping activity – that is, the use of prohibited performance-enhancing drugs and techniques by athletes and the encouragement of such use by other athletic stakeholders. This focus is significant because of the persistent threat that doping activity poses to the cultural values of fair play and the integrity of international sports.

 

During the last 25 years, a robust legal regime has grown at the international level in response to this problem. For example, the Court of Arbitration for Sport (CAS) has handled hundreds of cases involving appeals by athletes of their doping-related suspension from sanctioned competition. Its awards, which are enforceable internationally under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,[2] are nearly always effective. Indeed, CAS has been termed “one of the world’s most successful attempts at bringing order to transnational issues…a valuable example of how an international tribunal can succeed”.[3]

 

A newer but also effective mechanism is the World Anti-Doping Agency[4] (WADA). Headquartered in Montreal, it operates partly through official bodies at the national level such as the United States Anti-Doping Agency (USADA). Under WADA supervision, these institutions form a global network for testing and sanctioning athletes and other athletic stakeholders under the World Anti-Doping Code[5]. Within the UNESCO framework, the International Convention Against Doping in Sport[6] provides intergovernmental cooperation to the same ends. National legislation, such as the Anabolic Steroids Control Act of 1990[7] in the United States, supports this regime of anti-doping controls. What has been emerging is essentially a new legal culture within the process of international sports law.

 

The cultural variables that are apt to influence the efficacy and further development of the international anti-doping regime fall into two categories: those that operate within sport (internal variables) and those that impact sport from outside (external variables). As we shall see, these internal and external cultural variables can interact in important ways.

 

In sport as a whole, the internal cultural variables incorporate such values as the sheer excitement and personal challenge of competition for athletes, physical fitness, character-building opportunities for youth, and global peacemaking. The elitist aspirations of Baron Pierre de Coubertin, father of the modern Olympic Games, as well as the interlocking rings of the Olympics logo, come to mind. Field-of-play rules, reinforced by an etiquette of good sportsmanship and fair play, define the balance within each sport between competition and cooperation. Imbalances lead to yellow or red cards, ten- or fifteen-yard penalties, expulsion from play, and other sanctions, depending on the particular sport.

 

These field-of-play sanctions, so fundamental in sports, nevertheless operate beneath the radar of international sports law, which seeks to avoid any direct intervention in the sports arena. Field-of-play rules, not legal rules, are meant to govern the conduct of sports activity. But a legal posture of non-intervention turns out to be impossible in the real world of international politics[8]; terrorism[9]; ethnic, gender and disability discrimination[10]; bribery of athletes and officials[11]; spectator and player violence[12]; and, as will be seen, highly organized doping activity. Such externalities, all of them imported from larger cultures, readily corrupt the purity of field-of-play rules. The need for legal regulation of sports is obvious.

 

Doping has troubled organized sports since at least the 1930s, although it was overshadowed for many years by the problem of amphetamines and other so-called recreational drugs.[13] It became of paramount concern only at the 1988 Olympic Games in Seoul when Ben Johnson, the Canadian sprinter, was forced to give up his gold medal after lab tests revealed the presence of a prohibited anabolic steroid in his urine.[14] In 1988 lab tests were still haphazard at best, but were nevertheless quite reliable. During the 1990s it became clear that entire sports were infested with doping – most notoriously cycling, baseball, and track-and-field, in about that order of magnitude and visibility.

 

Think of the cases of Lance Armstrong, Floyd Landis, and Alberto Contador, in cycling[15]; the indictments of Barry Bonds and Roger Clemens in baseball[16]; and the sad curtain calls for such talented world-class runners as Marion Jones, Tim Montgomery, and Butch Reynolds in track and field[17]. Think of the disappearance of entire teams from cycling’s Tour de France, as their members, one by one, were disqualified after testing positive, primarily for the presence of the red blood cell-boosting drug Erythropoietin (EPO).[18] One can only hope that the slower performances in the 2011 Tour de France betoken a new and sustained commitment by cyclists and the cycling industry to clean competition.[19] Think of the Congressional hearings in the United States that implicated superstars of Major League Baseball (MLB) and required MLB to get off the bench and swing into action by testing and sanctioning players, particularly for andro (androstenidione) and other steroids. After all, the bulging biceps of Mark McGuire and other home-run heroes were obviously attributable to more than a lifetime of weightlifting.[20] And think of the BALCO scandal in track and field.[21]

 

Why has doping activity infested entire sports? Very simply: their ethical cultures had become rotten to the core, and nobody cared about the problem as long as records fell and more heroes emerged. An even playing field was out of the question. Interestingly, when the baseball superstar Alex Rodriguez was compelled to admit his use of performance-enhancing drugs, including steroids, he blamed it on “a different culture” of baseball then.[22]

 

Sometimes, however, the cultural norms of entire nations are instrumental. For example, given the porous border between Canada and the United States, Canada’s substantially greater tolerance for the use of drugs has inhibited United States efforts to interdict access to human growth hormone (HGH) by athletes.[23] Of course, this difference may be attributable not only to general cultural norms, but also to more formal legal requirements and considerations of law enforcement that are at most only indirectly traceable to such norms. In any event, HGH has posed a particularly difficult challenge because until recently it was nearly impossible to detect in lab testing. The problem is that such testing is generally based on finding chemical abnormalities in urine samples whereas HGH does not appear to be an abnormality because it is a clone of a natural hormone and acts only indirectly in the body to produce an insulin-like growth factor.[24]

 

An epicenter of HGH distribution in North America has been the Institute of Sports Medicine Health and Wellness Centre near Toronto, run by Dr. Anthony Galea. In Canada, HGH can generally be prescribed for “off-label” use in order to enhance athletic performance, among other purposes, in addition to explicitly authorized uses. Dr. Galea has discreetly employed this loophole in Canada’s compliance with the international anti-doping regime, often by smuggling HGH into platelet-rich plasma injections, which are perfectly acceptable without the HGH. The United States, however, does not permit such “off label” use of the hormone. It can therefore be used legitimately to treat only three disorders – namely, AIDS-related wasting, a particular disorder of the bowels, and, of course, growth hormone deficiencies. Not surprisingly, then, Dr. Galea has attracted a steady flow of top-notch athletes from south of the border mostly by aggressively peddling HGH there and occasionally by accommodating the athletes in Canada.[25] Although the Canadian government fully cooperated with Washington in investigating Dr. Galea, the scene then shifted to his satellite laboratory in Israel, whose culture is even more permissive of doping than Canada’s.[26] Gradually, however, national cultures are becoming more uniform and less intolerant of prohibited agents and controversial practices.

 

Perhaps the single most important cultural influence on the anti-doping regime is the global media. It is hard to exaggerate its expansive role in sports. It often dictates the selection of sports and events in major competition, determines the scheduling of events, promotes the advancement of particular athletes, and identifies sports-related legal issues, disputes, and means for resolving them. The media’s quest for sports records has given new meaning to the Olympic motto “citius, altius, fortius” – “faster, higher, stronger.”[27] In effect, the media has succeeded in trumpeting sports activity as pure entertainment, at the expense of the traditional internal cultural values such as physical fitness for its own sake, character-building, and peacemaking.[28]

 

The overwhelming emphasis on winning at all costs and general spectator amusement has had a profound effect on the subcultures of spectators. Although public opinion polls consistently show that spectators overwhelmingly oppose the use of performance-enhancing drugs, they equally oppose any significant constraints other than field-of-play rules on the ability of athletes to set records and pummel each other beyond normal capacities. The biochemical origins and dynamics of their performances are therefore of little concern. It is not surprising, then, that in a recent survey to determine the biggest threat to sports, only 3.23% of the respondents selected “use of performance-enhancing drugs”, putting doping in eighth and last place among the alternative threats.[29]

 

In addition to the negative cultural influence of the media and perhaps the public as a whole, efforts to combat doping have been handicapped by “[d]eliberately inept and unwilling administrators, not wishing to upset the status quo.”[30] Moreover, although arbitration, civil litigation, and criminal prosecution have become increasingly sophisticated in dealing with the doping problem, they are also becoming alarmingly complicated, protracted, and expensive procedures for resolving disputes.[31]

 

As for the future, the frontiers of doping are endless. Science is always one step ahead of the law. Masking agents and micro-dosing that are ever more difficult to detect, sophisticated methods of boosting synthetic epitestosterone within acceptable margins, and gene-splicing are just a few of the challenges.[32]

 

In response, the frontiers of anti-doping efforts include greater reliance on athletic profiling and related techniques such as WADA’s Athlete Biological Passport[33] as substitutes for scientific proof so as to detect any physiological anomalies in a single athlete over time that may hint at otherwise undetectable doping. Such frontiers of control raise questions of due process. Greater use of circumstantial evidence is already redefining what process is due to athletes whose eligibility for competition may be at stake. For example, in the absence of conclusive analytical tests, the admission into courtroom evidence of coded sales receipts and recorded phone conversations spelled doom for BALCO and its gilded clients. Importantly, WADA’s Anti-Doping Administration and Management System – the ADAMS Database –, though purely voluntary for national governments, has been a promising and well-received development in systematizing information from anti-doping initiatives and compliance by athletic stakeholders.[34]

 

There is also growing support for a stronger partnership between sports federations and governments in combating the menace of doping.[35] WADA and the UNESCO Anti-Doping Convention help to forge such a partnership, and the criminalization of doping has gained momentum, particularly in Europe. It is likely that within the next ten years national governments and sports federations, by sharing their otherwise independent investigative and sanctioning powers, will be working much more closely in a united front against doping.

 

Such teamwork between private and public sectors is still only beginning and may raise serious issues of civil liberties, however. These issues include the fairness of the “whereabouts rule” that requires athletes, year-round, to make their whereabouts known for purposes of out-of-competition drug testing.[36] Other civil liberties issues involve the standard of strict liability with mandatory sanctions for violations of the WADA Code, as well as significant disparities in both laboratory testing and sanctioning processes among different sports and legal systems. Further, in the realm of dispute resolution, CAS arbitrators are struggling to define proportionality in their consideration of appropriate sanctions against athletes and other athletic stakeholders.[37]

 

Five years ago, in an article on the future of international sports law,[38] the author listed ten trends in international sports law in what he considered to be their approximate order of importance. The #2 trend in importance referred to the rampant problem of doping. A rough assessment of trends in the influential cultural variables, including an emerging legal culture determined to combat doping, augurs well for continued progress in building an effective regime to combat doping.

 

To be sure, the external cultural variables promoted by the media and sports industry of pure entertainment and the cultivation of superheroes, as well as derivative changes of attitude in the subcultures of spectators, may overshadow traditional internal variables within the arena of sports. Baron de Coubertin’s late Victorian aspiration for a lofty role of sports in society seems almost quaint. Also, sports administrators and the dispute resolution process have limited the effectiveness of anti-doping efforts in the past. On the other hand, the positive trends that have been identified in this article are also apparent. We can therefore be optimistic that the emerging regime to combat doping,[39] shaped as it will continue to be by the dominant cultural variables of the entertainment world, manifests a new legal culture to help ensure a more level playing field for all athletes during the next ten years. If so, we can expect to witness a major example of international sports law in action as a vital dimension of cultural law.

 



[1] Thomas B. Stoel Professor of Law and Director of International Law Programs, Willamette University College of Law; Honorary President, International Association of Sports Law. This article draws on the author’s remarks at the International Law Weekend-West, organized by the International Law Association (American Branch), Southwestern Law School, Los Angeles, 26 February 2011.

[2] Done 10 June 1958, 330 U.N.T.S. 3.

[3] Daniel H. Yi, “Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal”, 6 Asper Rev. Int’l Bus. & Trade L. 289, 290, 291 (2006). See also Richard H. McLaren, “Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror”, 20 Marq. Sports L. Rev. 305 (2010).

[4] For a summary, see James A.R. Nafziger, International Sports Law 161 (2d ed. 2004).

[5] World Anti-Doping Code (2003).

[6] United Nations Educational, Scientific and Cultural Organization, International Convention Against Doping in Sport, ED/2005/CONV-DOP rev.2, adopted 19 October 2005.

[7] 104 Stat. 4851, incorporated into and modified in 21 U.S.C. §§ 801-971 and cited in § 801 note, § 802 note, and § 829 note (2006 ed.).

[8] See generally Nafziger, supra note 3, at 195-296 (tracing the history of politics in modern sports competition, an issue that has been greatly minimized, however, since the end of the Cold War).

[9] Id. at 167, 200, 214.

[10] See James A.R. Nafziger, “International Sports Law”, in :Handbook on International Sports Law (James A.R. Nafziger & Stephen F. Ross eds. 2011) (forthcoming).

[11] See, e.g., Jack Anderson, “Corruption in Sport: Time for an EU Statement of Integrity and Good Conduct in Sport”, in: Int’l Sports L.J., 2007/1-2, at 108; Urvasi Naidoo & Simon Gardiner, “On the Front Foot Against Competition”, in: Int’l Sports L.J., 2007/1-2, at 21 (drawing from bribery scandals in cricket).

[12] See Nafziger, supra note 3, at 164-67, 214-15 (noting the European Convention on Spectator Violence and Misbehaviour at Sports Events and in Particular at Football Matches, ETS 120, reproduced in 24 I.L.M. 1566 (1985)).

[13] See Albert Dirix & Xavier Sturbois, The First Thirty Years of the International Committee Medical Commission 1967-97, at 14 (1999).

[14] Altman, “New “Breakfast of Champions”: A Recipe for Victory or Disaster?”, in: N.Y. Times, 20 November 1988, at 1, 34.

[15] See, respectively, Bill Strickland, Endgame, Bicycling, May 2011, at 48, and Selena Roberts & David Epstein, Special Report: The Case Against Lance Armstrong, Sports Illus., 24 January 2011, at 45 (discussing the Armstrong case); Juliet Machur & Michael S. Schmidt, Investigations in Doping Fraud Case are Facing a Long, Hard Challenge, N.Y. Times, 29 June 2010, at B14 (discussing the Landis case); Juliet Machur, New Test, Introduced Without Warning, Could Give Antidoping Officials an Edge, N.Y. Times, 10 October 2010, at SportsSunday 8 (discussing the Contador case).

[16] See, e.g., Ben McGrath, “King of Walks”, in: New Yorker, 28 March 2011, at 32; George Dohrmann, “The U.S. vs. Barry Bonds”, in: Sports Illus., 28 March 2011, at 16 (discussing the Bonds case); George Vecsey, “Clemens Fell as Pettitte Refuse to go Along and Lie”, in: SportsSunday 8. Int’l Herald Trib., 21-22 August 2010, at 12 (discussing both Bonds and Clemens cases). See also José Canseco, Wild Times, Rampant ’Roids, Smash Hits, and How Baseball Got Big (2005).

[17] See James A.R. Nafziger, “Circumstantial Evidence of Doping: BALCO and Beyond”, in: 16 Marq. Sports L. Rev. 45 (2005) (focusing on the Bay Area Laboratory Co-Operative (BALCO) scandal involving the widespread purchase and use by world-class athletes of a BALCO-produced anabolic steroid called tetrahydrogestrinone (THG)).

[18] The collapse of the team sponsored by the U.S. Postal Service (USPS), an independent federal agency, was both embarrassing to the government and potentially devastating to Lance Armstrong and other team members under investigation who, by virtue of federal law to protect the USPS, might face federal criminal charges of conspiracy, wire fraud, money laundering, racketeering, drug trafficking, and fraud. Roberts & Epstein, supra note 14, at 58.

[19] See Ross Tucker & Jonathan Dugas, A Doping-Free Tour de France?, 24 July 2011, at SR3.

[20] See, e.g., Anne E. Kornblut, “Now Batting: Hearings in Congress on Steroids”, in: N.Y. Times, 13 March 2005, § 8, at 8.

[21] Nafziger, supra note 16, passim.

[22] Selena Roberts & David Epstein, “Confronting A-Rod”, in: Sports Illustrated, 16 February 2009, at 28.

[23] See generally David Epstein & Melissa Segura, “The Elusive Dr. Galea”, in: Sports Illus., 27 September 2010, at 57; Ian Austen, “H.G.H.’s Conundrum: Does Costly Treatment Enhance Performance?”, in: N.Y. Times, 20 December 2009, at SportsSunday 2.

[24] Austen, id.

[25] See Serge F. Kovaleski, “Assistant’s Loyalty May Be a Key for Doctor”, in: N.Y. Times, 25 July 2011, at D1; Greg McArthur, “The Galea Files: The Many Faces of a Disgraced Sports Doctor”, in: Globe and Mail (Toronto), 9 July 2011, at A12.

[26] McArthur, id. at A13; Epstein & Segura, supra note 22, at 60.

[27] Olympic Charter, ch. 1(10) (2007).

[28] The tension between sport as pure entertainment and as a means to achieve loftier goals was traditionally expressed by the distinction between professional and amateur sports. Today, however, that distinction has largely disappeared from international sports law, thanks to the general practice of national laws such as the Amateur and Olympic Sports Act in the United States, which decouples the definition of an “amateur” athlete from financial considerations and has gradually been extended, at least indirectly, to all athletes in this era of open competition. The European conceptualization of an integrated pyramidic structure of clubs from the grassroots on up has blurred the traditional distinction between amateurs and professionals. Of course, the distinction remains significant in such domestic practices as collective bargaining of player contracts, limitations on remuneration of high school and college athletes, and exclusively professional tournaments. The important cultural point is that the traditional ambiguity in defining the social role of sport is being resolved by recognizing that all international competition is, indeed, entertainment. It is subject, however, to rules, practices, and rituals – post-game handshakes, for example – that are designed to help achieve more noble aspirations. This trend toward the reconciliation of conflicting cultural variables is apt to continue.

In a narrower sense of the term, the internal culture of sports activity, on the field of play, is also changing rapidly. The introduction of cameras and computers into the sports arena is gradually blurring the distinction of field-of-play rules, scoring, and decisions, on the one hand, and overarching legal requirements on the other. Increasingly, spectators expect that new technologies should overcome the frailties of human observation and exercise of discretion.

[29] See “Special Report: The Readers Speak”, in: Sports Bus. J., 29 November-5 December 2010, at 17.

[30] Richard H. McLaren, “Is Sport Losing Its Integrity?”, in: Marq. Sports L. Rev. 551, 551 (2011).

[31] Id. at 569, 571, 572.

[32] For example:

Every advance in the detection of [performance-enhancing drugs] has been met with an advance in masking. When a method for detecting excessive testosterone using the body’s testosterone/epitestosterone ratio was developed in 1981, East German doctors began synthesizing epitestosterone for their athletes to inject along with testosterone to keep their ratios stable. The strategy surfaced again in “the cream”, the rub-on steroid lotion made infamous in the BALCO case. BALCO client Marion Jones never failed a drug test, and she was caught only through a criminal investigation.

One popular current doping method is micro-dosing, or frequent use of small quantities of testosterone or EPO; enough to get a benefit, but not to exceed the testing threshold. And then there’s HGH. The current method of detection is so feeble that an athlete who injects HGH for lunch can be clean for testing by dinner.

David Epstein, “Test Patterns”, in: Sports Illus., 30 May 2011, at 16.

[33] See T.M.C. Asser Instituut; The Implementation of the WADA Code in the European Union 33 (2010).

[34] Id. at 13.

[35] The Founding President of WADA and former Vice-President of WADA urged the formation of a 50-50 anti-doping partnership between governments and sports bodies. Richard Pound, “Idea: New Sheriff to Police Sports Doping”, in: Christ. Sci. Monitor, 27 December 2010-3 January 2011, at 2. See also McLaren, supra note 29, at 572 (urging “better cooperation between sports administrators and the various governmental agencies that can help them out”).

[36] See, e.g., James Halt, “Where is the Privacy in WADA’s ‘Whereabouts’ Rule?”, in: Marq. Sports L. Rev. 267 (2009).

[37] See, e.g., Hoch v. F.I.S., CAS 2008/A/1513 (deciding that a lifetime ban on eligibility would violate the principle of proportionality).

 

[38] James A.R. Nafziger, “The Future of International Sports Law”, in: 42 Willamette L. Rev. 861 (2006).

[39] Foremost elements in this regime are the WADA Code, the UNESCO Convention, more systematic and thorough databases, and the prospect of a united front of governments and sports bodies.