Is drug testing of athletes necessary?
Matthew J. Mitten
IN TODAY’S SOCIETY, the economic and intangible rewards for extraordinary athletic achievements and winning performances are substantial. Therefore, there is a significant incentive for athletes to maximize their on-field performance, which is the paramount objective of sports competition. Virtually all athletes use various artificial means to enhance their body’s natural performance while playing their respective sports.
Some substances and training techniques are not characterized as “unfair” competitive advantages, even if they are not universally available to all athletes because of their differing economic resources. It generally is permissible for athletes to ingest nonmuscle building dietary supplements that facilitate athletic performance such as carbohydrates, electrolyte drinks, energy bars, vitamins, and minerals–and they often are encouraged to do so. Even the use of creatine as a muscle-building substance currently is not considered to be “doping” or an improper means of athletic performance enhancement.
However, athletes’ usage of Federally controlled substances such as anabolic androgenic steroids, which include “designer steroids” such as THC (i.e., tetrahydrogestrinone), and steroid precursors is characterized as doping by sports governing bodies and, if detected, punishable by sanctions. Anabolic androgenic steroids are synthetic variations of the male hormone testosterone that mimic its effects by having muscle-building (anabolic) and masculinizing (androgenic) characteristics with potentially harmful health consequences.
Steroids are a legitimate, therapeutic treatment for muscle-wasting conditions, but sports organizations prohibit their usage by athletes to enhance on-field performance. Also generally banned are steroid precursors such as androstenedione, which was admittedly used by former Major League Baseball player Mark McGwire. These substances function like steroids after being ingested and metabolized by the body. Sports organizations also ban and test for stimulants such as ephedrine and caffeine, which are contained in some over-the-counter products, because of their potential usage for “unfair” athletic performance enhancement.
Risking severe sanctions
Some athletes at all levels of sports competition are willing to use banned performance-enhancing drugs, even though doing so violates the rules of the game and exposes them to sanctions, could adversely affect their health, and may violate Federal or state laws. Several former Major League Baseball and National Football League players such as Jose Canseco, Ken Caminiti (deceased). Bill Romanowski, and Steve Courson have admitted using anabolic steroids to enhance their on-field performances. Prominent Olympic athletes (e.g., Ben Johnson and Jerome Young) have tested positive for steroid use, and other Olympians are suspected or accused of using steroids. Approximately one percent of the 11,000 National Collegiate Athletic Association student-athletes who randomly are tested each year come up positive for usage of banned performance-enhancing substances. According to a 2003 Centers for Disease Control and Prevention survey of ninth to 12th graders, steroid use by high school students has more than doubled from 1991 to 2003–to more than six percent.
Anabolic steroids, when combined with vigorous physical training, do enhance athletic performance by making users bigger, stronger. and faster–while also speeding up their recovery time after strenuous exercise. If steroids effectively enhance performance, what is wrong with allowing athletes to take advantage of modern medicine and pharmacology? After all, athletes frequently are given painkillers and are fitted with artificial devices designed to enable continued participation in a sport despite an injury, and these generally are considered to be acceptable practices. Although there is concern about potential health risks, libertarians point to the current lack of compelling medical evidence that steroid usage by adult athletes causes serious health risks beyond those already inherent in competitive sports. Some commentators, including physicians, advocate allowing athletes to use steroids with medical supervision after full disclosure regarding their known health risks rather than banning and imposing sanctions for their usage.
Is there really an appropriate line that can be dawn between legitimate athletic performance enhancement through artificial means and unethical doping to achieve an unfair competitive advantage? For example, athletes’ usage of artificially created low-oxygen living environments in love-altitude training areas currently is permitted, whereas their use of erythropoietin (EPO) to achieve similar effects are prohibited by sports governing bodies. Moreover, who is the appropriate entity to draw this line?
Perhaps it is easier to answer both questions by considering the second question first. Sports governing bodies have a legitimate interest in establishing uniform rules necessary to maintain the sport’s integrity and image, ensure competitive balance, and protect athletes” health and safety. Although achieving maximum individual performance and winning is the objective of athletic competition, the essence of sports is that all participants play by the same rules. Antidoping regulations are an integral part of the “rules of the game,” similar to those regulating playing equipment, scoring competition results, and penalizing infractions. Even if a sport’s rules of play are arbitrary (and they often are), the sport’s governing body has the inherent authority to promulgate clearly defined boundaries to ensure fair play and enforce them in a uniform, nondiscriminatory manner.
Moreover, anabolic steroids are a Federally controlled substance. Medical experts have identified several potential negative side effects of using them. Clinical experiments involving athletes’ use of steroids solely to improve on-field performance would raise serious ethical issues. For example, East German athletes who were given steroids under medical supervision, which enabled them to win Olympic medals during the Cold War era, now are suffering serious adverse health effects.
Courts and arbitration panels have upheld the legal authority of sports governing bodies (and educational institutions) to use random urinalysis drug testing of high school, college, and Olympic athletes. These tribunals generally conclude that protecting the integrity of athletic competition and sports participants’ health and safety outweigh athletes’ legitimate privacy interests. An athlete who uses these banned substances is a “cheater” whose unethical conduct may be punished.
Athletes who use prohibited substances directly expose themselves to potential adverse health consequences and indirectly subject others to similar risks. By nature, many athletes are risk-takers who will adopt their counterparts’ successful training methods–even dangerous ones–if doing so enhances their performance. Thus, other athletes’ actual or perceived usage of steroids creates a strong incentive to “level the playing field,” which may cause an individual who would not otherwise ingest or inject steroids to do so.
Pharmacological performance-enhancing substances are banned because of their adverse effects on both athletes’ health and competitive integrity. For example, the World Anti-Doping Agency (WADA) Code only prohibits usage of a substance that satisfies at least two of the following criteria: it enhances or has the potential to enhance sports performance; it creates an actual or potential health risk; or it violates the spirit of sport. No single criteria is a sufficient reason for prohibiting usage. For example, the first criteria includes the use of creatine and artificial low-oxygen living environments, which are permitted because neither of the other criteria presently are deemed to be satisfied. Conversely, the use of anabolic steroids is prohibited because and arguably all three, of these criteria have been met.
The WADA Code governs Olympic sports competition. It generally provides for strict liability and mandatory minimum suspensions for athletes’ usage of banned substances. Pursuant to a contract with the United States Olympic Committee, the United States Anti-Doping Agency (USADA), an independent entity, administers and oversees the drug-testing program for American Olympic athletes. An individual has the right to appeal USADA’s finding of a doping violation to an arbitral tribunal and to seek a reduced sanction because of mitigating circumstances.
The NCAA has a random drug-testing protocol applicable to all student-athletes participating in its member institutions’ intercollegiate athletics program. It provides for strict liability and a one-year suspension from participation in all NCAA sports (along with a loss of one year of eligibility) for testing positive for a banned substance, with the right to an administrative appeal before members of the NCAA’s Competitive Safeguards and Medical Aspects of Sports’ drug education and testing subcommittee. Effective Aug. 1, 2005, the NCAA’s drug-testing protocol was modified to make it more consistent with the WADA Code by withholding an athlete from NCAA competition who is under a doping suspension by a national or international sports governing body that has adopted the WADA Code, and by allowing consideration of a reduced penalty for a positive test in extenuating circumstances.
Because of the large number of students participating in interscholastic athletics and the high cost of testing ($50-100 per test), no state high school athletics governing body presently requires testing for performance-enhancing drugs. For the same reasons, very few school districts test for anabolic steroids. The California Interscholastic Federation, which regulates the state’s high school athletics, recently adopted a policy to curb steroid use. It requires a student and his or her parents to agree in writing that the athlete will not use steroids without a physician’s prescription and that coaches complete a certification program having a significant component regarding steroids and performance-enhancing dietary supplements. It also prohibits school-related personnel and groups from selling, distributing, or advocating the use of muscle-building dietary supplements.
Professional team sport athletes such as Major League Baseball, National Basketball Association, National Football League, and National Hockey League players generally have chosen to unionize, and drug-testing programs are a mandatory subject of collective bargaining. Thus, unlike the USOC, NCAA, and the governing bodies for nonunionized professional sports, MLB and the NBA, NFL, and NHL cannot unilaterally impose drug-testing programs on their players. The NFL and NBA have had collectively bargained mandatory drug-testing programs for several years.
As part of the Bay Area Laboratory Co-Operative (BALCO) grand jury, investigation into the illegal sale and distribution of THC, several prominent baseball players were called to testify in December, 2003. regarding whether they used anabolic steroids to enhance their athletic performance. In the wake of this scandal, Pres. Bush, in his 2004 State of the Union Address. urged professional sports leagues to adopt voluntarily more stringent drug policies that effectively will eliminate steroid use and set a better example for America’s youth. In January 2005, Major League Baseball and its players union established their first testing program for performance-enhancing drugs.
Current penalties for a first drug testing violation are unpaid suspensions of 10 days lot MLB players, four games for NFL players. and 10 games for NBA players. Meanwhile. the NHL’s new policy, negotiated through collective bargaining after last year’s lockout (non)season, has yet to be made public.
To protect public health and safety, the Federal government recently has taken steps to restrict access to performance-enhancing drugs and prevent their usage by athletes (particularly youthful ones). Anabolic steroids have been Federally regulated since 1990. However, many athletes used steroid precursors, which were sold as legal over-the-counter dietary supplements under the Dietary Supplement Health and Education Act of 1994. Except for dehydroepiandrosterone (DHEA), steroid precursors now arc regulated by the Anabolic Steroid Control Act of 2004, which became effective Jan. 20, 2005. As reflected by the BALCO grand jury proceeding, the Federal government also is actively prosecuting those who illegally provide performance-enhancing drugs to athletes.
In addition to these measures, there have been several 2005 Congressional committee hearings regarding professional athletes’ use of steroids and proposed Federal laws to reduce their demand for these substances. These bills would establish a uniform random drug testing policy for professional athletes, with substantial fines imposed on sports organizations for falling to implement and comply with this policy.
The Clean Sports Act of 2005–which by no means is guaranteed to become law–is intended “to protect the integrity of professional sports and the health and safety of athletes generally,” with the objectives of eliminating performance-enhancing substances. This proposed legislation would apply only to the NFL, NBA. NHL, MLB, Major League Soccer, Arena Football, and the United States Boxing Commission, which must develop drug-testing policies and procedures as stringent as those of USADA. However, the proposed bill provides the sense of Congress that all professional sports leagues should comply with these standards. Each athlete would be tested five times annually. There would be a mandatory two-year suspension for a first offense and a lifetime ban for a second offense, with the possibility of a reduced penalty lot unknown or unsuspected usage of a banned substance.
The Director of the Office of National drug Control Policy would be empowered to include other professional sports leagues or NCAA colleges and athletes within the Act’s coverage based on a determination that doing so would prevent the use of performance-enhancing substances by high school, college, or professional athletes. Noncompliance with the Act’s substantive provisions would constitute unfair or deceptive acts or practices in violation of the Federal Trade Commission Act with a potential civil penalty of $1,000,000 per violation.
A $5,000,000 fine
The Secretary of Commerce would be directed to promulgate regulations requiring testing for steroids and other performance-enhancing substances and may fine a professional sports league $5,000,000 for falling to adopt testing policies and procedures consistent with the regulations.
With some variations, similar bills titled the Professional Sports Integrity and Accountability Act and the Professional Sports Integrity Act of 2005 have been introduced in the Senate and House, respectively. Do not be surprised if more legislative proposals are on the way.
Congress clearly has jurisdiction to establish a drug-testing program for professional leagues based on its authority to regulate interstate commerce, and there are other potential bases for enacting such legislation. Nevertheless. professional athletes and their unions may assert that Federally mandated drug testing violates their rights under the Constitution. Targeted drug testing of professional athletes, but not other private employees, is inconsistent treatment. However, the Federal equal protection clause requires only a rational basis to justify treating professional athletes differently, which is satisfied by their prominence in American society and imitation by youngsters.
A more interesting issue is whether mandatory drug testing of adult professional athletes without an individualized suspicion of illegal drug usage constitutes an unreasonable “search” in violation of the Fourth Amendment. In recent years, the Supreme Court has upheld mandatory random drug testing of high school athletes for recreational drugs by public educational institutions to protect their health and safety. Other courts have rejected college athletes” legal challenges to mandatory random drug testing for performance-enhancing and recreational drugs as a condition of participation in intercollegiate athletics. This judicial precedent, which holds that random drug testing is an appropriate means of maintaining the integrity of amateur athletic competition and protecting athletes’ health, also may be applied to professional sports.
Although Congress may have valid regulatory authority, this proposed Federal legislation inappropriately would interfere with the internal governance of professional sports, which historically have not been subject to direct government regulation. Athletic governing bodies are in the best position to establish appropriate drug-testing programs in order to regulate the permissible bounds of competition and to protect athletes’ health and safety. The primary harm that results from athletes’ usage of banned performance-enhancing substances is to the sport’s integrity. Thus, the sport’s governing body should have the exclusive authority to establish sanctions that effectively reduce athletes’ incentives to engage in doping. Market considerations, combined with political pressure, should provide a strong economic incentive for a professional sports league and its players union to establish an effective drug-testing program. For example, MLB recently adopted its first testing program for performance-enhancing substances in response to these factors. Its program appears to be reducing steroid usage by its players, although Baseball Commissioner Bud Selig has called for more severe penalties than befell the Baltimore Orioles’ Rafael Palmiero, a first-time offender who tested positive for steroids after testifying under oath at a Congressional hearing in Match that he does not used banned or illegal substances.
Rather than imposing an external drug-testing program on sports organizations, the Federal government should focus on preventing access to performance-enhancing drugs that pose health risks and prosecuting persons who distribute these substances illegally. The government potentially could fine and imprison athletes for violating controlled substances laws by knowingly using illegal performance-enhancing substances, which would penalize them for the indirect harm caused to American youths who view professional athletes as role models and emulate their conduct. (However, the International Olympic Committee is opposed to using criminal law to punish sports doping.) Both the Federal government and sports governing bodies have important roles to play in eradicating the use of banned performance-enhancing substances by athletes. However, their respective roles should be complementary rather than overlapping.
Matthew J. Mitten is professor of law and director. National Sports Law Institute, Marquette University Law School, Milwaukee, Wisc., and chair of the National Collegiate Athletic Association’s Competitive Safeguards and Medical Aspects of Sports Committee, which oversees the NCAA’s drug education and testing program for student-athletes.
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