A Critical Analysis of Doping in Sports

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Can altering the meaning of ‘Spirit of the Game’ be a Solution?

Abstract

Malcolm Gladwell once remarked, ‘The sad thing about doping is how much it obscures our appreciation of greatness.’ However, we often rule out the fact that greatness of an athlete, as a character, cannot be judged by his/her achievements and honours alone. In pursuit of greatness, the athlete mustn’t compromise on the integrity of the game. However, such compromises are made today with doping being one of them. Doping is fundamentally against the health of the athlete and is argued to be against the spirit of sports by most. Since ancient times, competitive athletes have been familiar with the use of ergogenic aids while the use of unfair and harmful substances continues in future. This can be accounted towards their inclination to victory, along with the vicious mirage of fame and money which even outweighs their health. While the harm to health argument appears straightforward, the ethical dimensions are ambiguous and more contested. Doping is considered a moral and ethical wrong and in scientific literature, major emphasis is placed on doping detection, whereas detrimental effects of doping agents on athletes’ health are seldom discussed. The paper argues why athletes found guilty of doping should not be made into scapegoats and why allied factors such as penance mechanism, effectiveness of anti- doping policies, role of coaches and training officials should be taken into consideration. It is to be noted that the paper is written with empathy in mind rather than being sympathetic towards anyone. Fairness and equality- the two backbones of anti-doping policy are carefully examined here. The paper then highlights the issues and challenges face by anti-doping policies. It explains why despite rigorous anti-doping controls and measures, doping and especially masking doping methods are also advancing and always are one step ahead of testing techniques. For many years, the international sports authorities have been monitoring the adverse effects of all forms of doping, but it only recently that serious and increasingly effective regulatory mechanisms have been established for the detection and control of doping in sports. The paper questions the current techniques used to prevent doping. It questions the motive behind an athlete’s reason and decision to dope. It highlights that doping is much more widespread than initially thought. Finally, the paper tries to ascertain the current state of doping and attempts to provide recommendations for the same.

Introduction

The Tokyo Olympic Games are around the corner as the nation gears up to cheer its sporting icons. A wave of ecstasy has wrapped the globe with excitement to witness the greatest athletes across different sports on the biggest event. There seems to be new level of enthusiasm in what are called as a path breaking Olympics for Sports amid the pandemic. But, what hasn’t changed is the controversy surrounding the Games. Despite waves of Covid infection and public opposition, the International Olympic Committee and the Japanese officials remain adamant in conducting the Games. But, the paper focuses on a controversy that still plagues the Olympics since time memorial- Doping. Doping is a performance enhancement behaviour introduced as an external aid to gain competitive advantage. Its ill-effects and consequences are not hidden from anyone. Doping has become a key and complex issue in the world of sports, which deserves urgent and serious consideration, while experts still strive to understand its whereabouts. It has been called a complex issue owing to its changing trends and practices. The paper focuses on unearthing the historical background behind it while simultaneously defining it in the relevant world. An honest attempt is made to answer certain critical questions by analysing previous instances and experiences of athletes. It also stresses on the role played by concerned agencies in regulating and eventually banning substance use. The focus of the discussion is what can be considered morally ‘right’ and ‘just’ in sports competitions. An attempt is also made to understand doping from the perspective of athletes. Finally, the paper calls for certain amendments and reforms in the laws implemented by the State and its agencies for the betterment of sports and society.

Doctrinal method of research was employed as the mode of writing this paper. It is based on findings and conclusions derived from readings and references from various journals, books, articles and authoritative material among other secondary sources. These sources also provide definitions and applicability of terms, in brief, that are helpful in the understanding and summarising the legal principles of law for the field under study.

Key Words- Athletes, Doping, Drugs, Performance, Spirit of the Game

Research Questions

The paper tries to answer and explain the following research questions.

  1. Is doping within the ambit of the ‘Spirit of Game’?
  2. Should doping be allowed for all under medical supervision?
  3. How can the usage of doping products be addressed from legal perception?
  4. Is fame the only reason behind turning to doping?
  5. Are athletes made scapegoats for doping?
  6. How does India approach the issue of doping?
  7. Can the fight against doping be fought even outside courtrooms?

Defining Doping

Although attempts to enhance athletic performance are probably much older, the word “doping” was first mentioned in 1889 in an English dictionary.[1] It originally described it as a mixed remedy containing opium, which was used to dope horses. The term stimulant comes from an ancient African dialect “doop” which means a mixture or part. “Dope” was a spirit prepared from grape residues which was used by warriors at times of war and religious procedures. Doping methods were also used in Norwegian mythology and in the Roman Empire. Later, its meaning was extended in a broader sense to other beverages with stimulating properties. As it is evident, several definitions have been developed over time, sometimes even partially conflicting. The first official definition of doping dates back to1963 when it was issued by the European Committee Council.[2]  Doping, more specifically in sports, has also been defined as the intentional use of drugs or methods aimed at obtaining an improved sports performance beyond the limits possible only by training by the athletes. However, this definition doesn’t take into account the medical needs of athletes/professionals, which are among other unintentional and accidental instances of consumption of banned substances. It is therefore concluded that no definition stands without limitations when it comes to defining doping, since it is an ever-evolving situation where more sophistication comes into the picture. It therefore, becomes absolutely necessary to trace the roots/origin of doping in order to understand the subject under study better.

History

It has been argued at times that the history of doping is as old as sports itself. Doping dates back to the ancient Greek Olympics that took place in 776 BCE to 393 BCE. It is reported that the Greeks used opium and hallucinogens[3] to enhance their performance in the athletic activities (Hallman and Petry, 2013). It is also believed that at the ancient Greek Olympic Games, athletes were encouraged to consume sheep testicles, which contained testosterone, as a means of boosting strength. However, these antique doping techniques were strictly prohibited by the regulations of the ancient Olympics, just as today, with their sanctions being much more severe as compared to today. According to Dirix and Sturbois (1998), doping served as one of the principal causes for the abolishment of the ancient Olympics.

The modern day doping is believed to have started in the late nineteenth century by French cyclists. It is believed that they used the coca leaves[4] to prevent themselves from experiencing fatigue during their competitions. Consequently, the expression “dope” was introduced into the English Turf Sport in 1900s for illegal drugging of racehorses. According to Paoli and Donati (2014), there were a growing number of athletes using performance enhancing drugs in the early twentieth century. In 1904, marathon-runner Thomas Hicks received two injections containing the stimulant strychnine with brandy during the race itself, which almost claimed his life. Numerous doping cases were reported between late nineteenth and early twentieth century, when official testing was initiated. It was not until 1928, that The International Association of Athletics Federations (IAAF) became the first sport governing body to ban the use of doping agents for performance enhancement. The IAAF, however, was limited in its ability to enforce the new ruling as it remained inefficient until testing facilities were made available. It was only after 32 years that anti-doping testing was implemented. The fight against doping commenced after the creation of the International Olympic Committee (IOC) Medical Commission in 1961 following the death of Danish cyclist, Knud Enemark Jensen during the Rome Olympics the year before. In 1976, the first reliable test was developed to detect steroids, which enabled the governing bodies to ban these substances for future use. The World Anti-Doping Agency (WADA) was jointly created by the International Olympic Committee and the public authorities in 1999. It was created with the intent of harmonizing the wide variety of rules that had developed both in the International sport organizations and at the domestic level with an aim to promote anti-doping activities. In 2009, The Athlete Biological Passport programme was launched that could mark and track an athlete’s biological information over time. This provided a big breakthrough for the investigators as it allowed them to spot the introduction of doping agents into the body. Despite all these measures, violators still find a way of catching-out these tests. There remains a constant tussle between the perpetrators and the watchdogs to use technological advancements in their favour to be better prepared than before.

Impact of Covid-19 on Doping and its Aftermath

Life came to a standstill, last year, owing to the Covid pandemic. The Global lockdown that was imposed was unavoidable and absolutely necessary last year, when the infection took its most severe form and the death toll was at its peak in most of the countries. It’s not hidden that Covid-19 outbreak had an impact on everyone’s life. What was even worse was the impact it had on people’s careers. The Covid-19 pandemic has thrown the world of sports out of gear. As we are aware that sports is a demanding profession where practice and perseverance matter the most. With everything shut, most of the athletes were left with not much to do. It therefore, posed a greater challenge for athletes who were pushed against the wall in their quest to remain healthy, both physically and mentally. There were concerns whether the athletes could maintain themselves naturally without consuming any prohibited substances. However, various heads of the anti-doping agencies around the world have strongly insisted that they are not worried by athletes who may have tried to take advantage of reduced testing programmes during the pandemic. Olivier Niggli, the Director General of the World Anti-Doping Agency (WADA) argued that testing is not the only option/weapon available at their disposal. He added that longitudinal profile and the athlete’s passport, storage of samples are among other methods. WADA, with regard to Covid-19 vaccines, even stated that they would check whether the vaccines have any substances that violate the rules of WADA before allowing the athletes to take the vaccine. Despite such stringent measures by the testing agencies, perpetrators still indulge in the consumption of banned- harmful substances. The question that arises here is what lures athletes into doping despite such strict regulations, harsh punishments and health consequences attached to it?

Why do Athletes indulge in Doping?

Doping cannot simply be understood as a case of individual misconduct due to lack of ethics. The explanations linked to social change provide a clear framework that helps in understanding substance abuse. But what they are often unable to explain, are the reasons why athletes do it. Therefore, only by combining disciplines and analysing the phenomenon can we begin to understand why athletes give into doping. The first and the foremost reason is the culture of excellence in which we all are born and brought up in, which only values victory. Often, an athlete is trying to remain in a team to gain recognition of his work. It is a pre-conceived notion that winning a competition requires many sacrifices which drives an athlete to any extent. Consequently, doping becomes an important way of living upto expectations. The role played by sports physicians in solely focussing on producing better performances rather than treating injuries is another problem that contributes to the cause. Another factor which goes unnoticed is the commoditisation of sports which has increased the flow of funds in sports. With professionalization of sports, investments and profits are given more emphasis which pressurises the athletes to deliver. As stated earlier doping is a complex subject. These different factors form favourable conditions yet they are hardly sufficient in explaining doping. However, they do make us understand that doping is not only an individual misconduct but it is also largely due to other factors. Therefore, blaming only the athlete, without complete investigation, makes him a scapegoat and an easy target for the public. This dichotomy between individual misconduct and social explanation must be overcome to understand doping better. 

Doping Conviction- A Strict Liability or Vicarious Liability?

Just like most of the legal systems, anti-doping jurisprudence is not flawless. The principle of strict liability, enshrined in Article 2 of the WADC[5], is one of the primary pillars in ascertaining guilt in cases of doping among athletes. A strict liability system can lead to injustices at the individual level. The principle of strict liability, where the burden lies on the sportsperson to ensure that his/her body is not intoxicated with banned substances, is seen by the international sports body as an effective measure to clean up sports.[6] However, the authorities must be mindful of the serious repercussions that inevitably arise out of such a system. Their career and reputation are at stake when doping allegations are made against them. It is therefore, necessary on the part of authorities to ensure a fair and transparent system while investigating such cases. Strict liability has also overlapped with vicarious liability[7] in many aspects. Vicarious liability arises when an athlete gets affiliated by a federation/association thereby accepting it rules and by-laws. This constitutes a contract between the athlete and the federation, which automatically makes the federation, comply with the anti-doping provisions by virtue of the athlete’s participation in an event. However, to establish vicarious liability two conditions must be satisfied. First being that the relationship between the primary wrongdoer and the individual/federation alleged to be liable must be established. Secondly, a connection must exist between the course of employment and the wrongful act that was committed so as to prove that the act can be regarded as being within the scope of the employment. Generally, it is seen that vicarious liability applies in team sports. The most prominent example was Russia being banned for four years in 2018 from competing in international events on accusations of doping and manipulations of database. Although, the ban was reduced to two years yet it doesn’t allow Russian athletes, who are cleared from doping charges, to compete under Russian flag. These athletes being under the provisions of the Russian Anti-Doping Agency (RUSADA), which came under fire, were allowed to compete as “neutral athletes”.

Yet, it is seen that it is an athlete who is primarily held responsible for the presence of any banned substance in the sample as it entails strict liability on his part. The violation is counted whether or not the athlete intentionally or unintentionally consumed such a substance irrespective of whether he was negligent or otherwise at fault. This raises an important question whether an athlete accused of doping can be held guilty in the first place? The answer is pretty clear that the onus lies on the athlete to prove his innocence. This rule creates a personal duty upon the athlete for ensuring that no prohibited substance enters his body. It is argued that the drafters opted for the system of strict liability; in the first place, as they believed that it was the best way of fighting doping. Eventually, they ensured fairness for other athletes as well. Thus, doping convictions can be amounted to strict as well as vicarious liability or sometimes even a blend of both, depending upon the facts and arguments of case.

Anti-Doping Policies of Agencies

Despite the heightened attention these controversial performances attract to the issue of doping, much ambiguity remains in regards to the nature of athletes’ offences, the sanctions that violations entail and who actually levies them.[8] Thus, the anti-doping regimes also rely upon a multitude of regulatory instruments that don’t fall into different legal spheres. In 1928, the International Amateur Athletic Federation became the first International Sport Federation to ban the use of performance enhancement drugs. However, a significant step was taken in 1967, by the International Olympic Committee (IOC) when it set up the Medical Commission with an aim to organize and supervise the battle against doping. Despite criticism in its early days, the IOC insisted on increasing the list of banned substances of the Committee which was made possible by the scientific advancements in the medical field of that time. Even though it wasn’t efficient in implementing the regulations yet it laid the foundations of anti-doping measures. The Anti-Doping Convention of the Council of Europe (1989) was the first step on the part of States to tackle the global issue of doping. In response to the international outcry on doping, the IOC and USOC[9] together established the World Anti-Doping Agency (WADA) in 1999. The elaboration of the World Anti Doping Code (WADC) was marked as a big success as it replaced the IOC Committee. Among other Codes laid down by the WADC, an athlete can be asked to undergo drug tests anytime and anywhere during training, during competition and even during their vacation. Refusal to undergo testing will be considered as positive test and sanctions follow. Out-of-competition tests are done without giving any notice to the athlete. The success of doping control largely lies on such out-of-competition tests.[10] Subsequently, the IOC formulated the ‘Medical Code’ in 2009 ‘to protect the health of athletes and to ensure respect for the ethical concepts implicit in Fair Play, the Olympic Spirit, and medical practice” that remains unchanged.

In addition to this, The Court of Arbitration for Sports (CAS), an institution established under an IOC initiative, is labelled as “Supreme Court of Sports World” with the purpose of addressing unique dynamic of sporting disputes like doping. With reference to India, The National Anti-Doping Agency is responsible for promoting, coordinating and monitoring the doping control programme for sports in the country.[11] Without venturing much into the provisions, the main function of NADA is to implement anti-doping rules, anti-doping policies with the holistic aim of increasing testing and promoting research in education for anti-doping. India is also a signatory to the Copenhagen Declaration on Anti-Doping and the UNESCO International Convention against Doping.

Coming back to the current scenario, WADA continues to respond to the Covid-19 outbreak as it relates to the Global Anti-Doping Program. WADA is today carrying on the fight supported by the universally accepted WADC and an International Anti-Doping Convention under UNESCO. This regulatory regime is not just limited to technicalities of international law. Rather, WADA has established partnerships with local governments, police agencies and legal authorities of States. The First Article of UNESCO Convention against Doping in Sports clearly lays down that both governmental and sports authorities ‘have complimentary responsibilities to prevent and combat doping in sports.’ The implementations of these sanctions has left many athletes enduring black marking of their accomplishments, while some have had their medals revoked along with long and short term suspensions. In extreme cases, some of them have even faced criminal sanctions. Such strict codes and regulations are laid down with the purpose of sending a strong message to violators that the ‘Spirit of Sports’ should not be compromised at any cost.

What is ‘Spirit of the Game?’

Nowadays, it seems like some sporting disciplines have managed to surpass the human limits. It is a fact that human performances can’t be improved beyond a certain extent. ‘Spirit of the Game’ is often interchangeably used with ‘Fair Play’ and ‘playing by the rules.’ WADA defines the ‘Spirit of Sport’ as, ‘the essence of Olympism, the pursuit of human excellence, through the dedicated perfection of each person’s natural talents. It is how we play true.’[12]

 However I find these definitions quite vague. Spirit of the game is a subjective topic and has no clear definite boundaries. For instance, the use of intravenous drip is a method – regardless of what it contains (even water) – that features on WADA’s prohibited list. Thus, spirit of sport is a fundamental principle and use of intravenous drip is contrary to the spirit of sport, then it should be punishable. However, it isn’t punishable. This can create confusion on the ‘Spirit of the Game’. Some argue that doping should be allowed as it helps in recovery from injuries faster. Some say physiological doping should be allowed putting limits on hormone levels and simultaneously testing whether those levels are maintained or not. Doctors and experts can help athletes to take drugs in a limited manner which is taken by them in an uncontrolled manner which eventually affect their health. The spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport.

So, should doping be allowed for everyone?

Even if we, for once, consider the use of performance-enhancing methods for everyone, it still remains unfair because they can still create situations of inequality and injustice. Performance enhancement drugs have high variations in their efficiency. Some athletes might have mild responses as compared to others. This again gives rise to inequality. In addition, it would give rise to more complexities as more tests would have to be conducted and tested. Eventually, it would lead to added expenses. Developed and better off countries would lead the race to procure the best drugs for their athletes which would be a consequence of financial disparity leading to inequality. Also, there is a limit upto which these drugs work after which even they become inefficient or dangerous in producing better performances.  Thus, fairness as a character can’t be ensured even after doping every athlete. There are various ethical difficulties involved if we legalise doping. If this is permitted then the lines between what is permitted and what is prescribed will become so blurred that any distinction will be unjustifiable. This needs to be stopped before they cross the legal limits as well. Fairness in sport has a large conventional element and, within certain limitations, is satisfied only if rules of the sport are made public and athletes comply with them.

Challenges Ahead and Recommendations for Doping

India maintained its unpleasant record of being ranked among top ten nations with regards to doping violations as World Anti-Doping Agency (WADA) published its report in 2018.[13] According to the latest report published, India is ranked joint sixth with Russia with 69 Anti-Doping Rule Violations (ADRV). The report shows that NADA tested 2831 samples during 2018. As a result, the International Association of Athletics Federation has put India in high doping risk category. NADA faces the additional burden of conducting doping test in WADA certified labs outside India, putting additional financial burden on government. This report gives an insight into doping violations in India and calls for immediate action. The challenges which lie ahead include the lack of legislation with regard to doping in India. Very often it is seen that there is lack of uniform laws as the national laws of States differ. Testing standards maintained in most of the laboratories are not upto the mark which allow the athletes to escape. Recently in India, The National Dope Testing Laboratory (NDTL) got a six-month suspension for not conforming by International standards for laboratories. The easy availability of doping substances and drugs also adds to the menace. Another important factor that leads to doping is the commercialisation of sports, though beneficial yet it leads the athletes to shift their focus to financial aspect of game often compromising the credibility of the game.  

Despite these challenges, India can take solace from the fact that the number of dope violations in India has reduced significantly. India improved from the third position to the sixth position in just a span of three years. Credit should be given but much work needs to be done to achieve desired results. The expertise required to formulate and implement an effective anti-doping policy in India may take some time to materialise. Nonetheless, things can’t be left unnoticed and untouched on the grounds of inexperience. It is therefore suggested that doping should be tackled at its grass-root level itself. By this I mean that educational awareness campaigns and programmes must be organised for all. Regular tests must be conducted even at the junior level. An important aspect which is not given due consideration is the detrimental effect of doping on an athletes’ health. The emphasis is placed only on the detection and punishment of doping. Mental health, other than health consequences, too should be given great emphasis as it is seen that athletes succumb to pressure at the highest stage. Arranging counselling session can help them alleviate their stress as it is seen that in cases of prolonged injuries an athlete’s desire to return can force him to make compromises at his end. Most importantly, the role of coaches is instrumental in shaping an athlete’s career. They can easily avoid it in the firsthand by intervening, objecting or by reporting. Lastly, criminalisation of doping can also be an option apart from other punishments.

Therefore, future anti-doping works should rely and be based more on prevention strategies. The battle against doping is far from being over and it must be fought both on and off the field.

Conclusion

With technological advancements, the phenomenon of doping in sports is increasing and diversifying, as are the drugs used for doping. Scientific interventions have expanded the scope of doping in sports. There’s a permanent race among those who invent new doping methods and sport ethics organizations that still search for more precise methods to detect them. Although, the anti-doping struggle continues, yet it is seen that manufacturers of new undetectable substances have always maintained a lead over anti-doping agencies. Yet, the jurist and legal circle have been divided when it comes to taking a stand against anti-doping regime. The paper makes an attempt to understand the ambiguous nature of doping in a systematic manner. It begins by first introducing the topic by defining doping by unravelling its past. The paper is written with empathy rather than sympathising with the athletes or any organisation. It focuses on its causes while trying to understand the mindset of athlete and the issues prevailing. It highlights the role played by various agencies in regulating it. Finally, it provides recommendations in the current system while raising the issue of criminalisation of doping. The fight is just not limited to the world of sports. The fight against doping in sport can be considered analogous to major public health challenges. The solutions that are pointed in this paper include that strict liability should be examined properly and precisely. It is worth noting that World Anti-doping Agency (WADA) has achieved a reasonable amount of success in the pursuit of its mandate to establish a drug free sports world. The rules developed and disseminated by WADA have created cohesion and significant consistency in the manner that doping cases are conducted world-wide. The paper suggests that a proper balance of power and mutual respect should be maintained between athletes and WADA, so as to ensure that proper vigilance be maintained in sports. We all wish to witness a day where doping won’t be prevalent in the world as it works in hindering the quintessence of all sports and questions its character and its existence.

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[1] Detlef Thieme and Peter Hemmersbach (eds.), Doping in Sports 1 (Springer Science & Business Media, Berlin, 2010).

[2] Doping represents the use of substances or physiological mediators, which are not normally present in the human body, introduced as an external aid to increase the athletes’ performance during a competition.

[3] Hallucinogens are a class of drugs that cause profound distortions in a person’s perceptions of reality, otherwise known as hallucinations. They also alter a person’s awareness of their surroundings as well as their own thoughts and feelings.

[4] The coca leaves are a source of cocaine that eventually boosts the performance of an individual.

[5] World Anti Doping Code (WADC) is a document which aims at harmonising codes and regulations regarding doping in sports.

[6] A Comparative Study of the Application of Strict Liability Principles in Sports: Critiquing Anti-Doping Policies; Examining ‘Illicit Crowd Chanting’ and Match Fixing, available at: http://docs.manupatra.in/newsline/articles/Upload/1AE2DCAF-EAAD-4028-BDB8-5A26CF3CDDF1.pdf (last visited on July 14, 2021).

[7] Fault based liability; as making an innocent party pay for the damages of another appears unjust on the face of it, on perusing the legal system of the common or civil laws however, we can see it is necessary.

[8] Kathryn Henne, “WADA, the Promises of Law and the Landscapes of Antidoping Regulation” 33(2) AAA pp. 306-325 (2010).

[9] United States Olympic Committee (OSOC).

[10] P.S.M. Chandran, “The COVID-19 Lockdown Could Lead to a Rise in Doping Among Sportspeople”, The Wire, April 29, 2020.

[11] National Anti-Doping Agency, available at https://www.nadaindia.org/ (last visited on July 16, 2021). 

[12] Claire Sumner, “The spirit of sport: the case for criminalisation of doping in the UK” 16 Int Sports Law J 217-227 (2017).

[13] World Anti-Doping Program-2018 Anti-Doping Rule Violations (ADRVs) Report, available at: https://www.wada-ama.org/sites/default/files/resources/files/2018_adrv_report.pdf (last visited on July 17, 2021).

Author: Jalaj Tokas, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University

Editor: Kanishka VaishSenior Editor, LexLife India.

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