The use of performance-enhancing drugs is thought to violate the notions of fairness, honorable victory, and excellence that are at the heart of sport. Even if doping was not disallowed by the rules, many argue that it would still undermine the very essence of sport. I am not going to challenge those arguments here, though I will note I am not entirely persuaded by them.
At first glance, it seems like there is no place for a classical liberal take on doping. The sport federations and teams are, for the most part, privately owned and participation is voluntary. These private organizations are free to make their own rules. In a classically liberal world, if the NFL wants to make as a requisite rule of participation that no one uses anabolic steroids, they would be free to do so; as well, if the IOC wants to institute the All Drug Olympics, they would be free to do so.
At the same time, classical liberals and libertarians are often the harshest critics of drug prohibition. From economic to social to personal-use reasons, ending the war on drugs through some kind of legalization or decriminalization is a widely shared policy goal.
But PED bans and drug prohibition are not analogous. The enterprise of sport is voluntary: if you don’t agree with the rules, you don’t have to compete. The banning of PED is largely a matter of freedom of association and private rules.
The state prohibition of recreational drugs, however, is a coercive interference with individual choices. Drug prohibition brings the state into our daily lives on a very personal level—the very substances one chooses to put into his or her body. And, as we have seen over the decades of prohibition, this leads to violence and corruption that spreads out into the community and harms many—often harming the least well-off the most.
Even with these differences, there are, nonetheless, parallels worth pointing out.
WADA: Blurring the Lines
WADA, the World Anti-Doping Agency, sets and controls anti-doping policy and enforcement throughout the world. Most sport organizations have adopted WADA’s doping code and comply with its rulings regarding doping violations. (Interestingly, the major US sports (NFL, MLB, NBA) have not adopted WADA’s code).
WADA is neither a private association nor a government agency. At least 50 percent of WADA’s budget comes from participating governments. Its boards and committees are also partially composed of government representatives. It is not quite part of voluntary civil society and not quite a government agency, and yet it is both. This makes questions about proper governance and accountability vague and uncertain.
In this way, WADA is a quasi-government agency and its code, quasi-law—but without the accountability and constitutional checks, such as they are, of actual governments and laws.
In order to keep up with the cat-and-mouse game between doper and tester, WADA has pushed and advocated for more extensive and more intrusive testing of athletes. From blood testing to biological passports that keep a record of various biological markers and physiological features of the individual athlete over time, the increased testing poses serious privacy concerns.
On one hand, the rules that might undermine privacy are consented to by the athletes when they agree to participate. But, on the other hand, the quasi-governmental nature of WADA complicates this consent and raises questions about adequate redress for these privacy concerns.
The war on drugs has deteriorated our rights across the board. In particular, Fourth Amendment rights allowing us to be secure in our homes and person have been weakened in the name of fighting drugs. We see the same process—and for largely the same reasons—unfolding in sport.
- Since its introduction in 2004, the WADA code requires a standard of “comfortable satisfaction” for doping violations. This is a standard that is “greater than a mere balance of probability, but less than proof beyond a reasonable doubt.”
- The comfortable satisfaction standard parallels the civil standard of the preponderance of evidence, though in practice it is more ambiguous.
- In part, this is because it works alongside strict liability (that is, the mere presence of a positive test is sufficient to meet the standard). The ambiguity of comfortable satisfaction is made worse by the growth of non-analytic violations: athletes without positive tests being “convicted” of violations on the basis of circumstantial evidence.
These three factors mean that athletes subject to the WADA code are essentially presumed guilty until they can prove their innocence.
This partially points to the quasi-government problem. We would expect WADA, as a government agency, to be held to the appropriate norms and standards of political institutions. But if it is private organization, the norms and expectations are different.
Nevertheless, even if WADA was completely private, the undermining of due process and privacy would still be a concern. It points to a deeper process at work in our culture. It is part of the greater willingness to cede away the responsibility and discretion that is central to individuals pursuing their flourishing in a classical liberal society.
This greater acquiescence to the control and power of centralized authority, be it political or private, is potentially undermining the moral and social conditions that make free society possible.
Shawn E. Klein is an instructor of philosophy at Arizona State University. He specializes in the philosophy of sport and runs the Sports Ethicist Blog: http://sportsethicist.com.