BackgroundAccording to the World Anti-Doping Agency, the term "doping" probably comes from the Afrikaans word "dop," a concoction made from grape leaves that Zulu warriors drank before going into battle. In sports, the term was first used to describe the illegal drugging of race horses at the beginning of the 20th century.
Doping in sport now includes a range of practices, including "blood doping" (the practice of autologous or homologous hemoglobin transfusions) and the use of synthetic erythropoeitin (EPO) to increase the number of red blood cells; anabolic steroids and human growth hormone to grow skeletal muscle; stimulants to improve cognitive function and reduce fatigue; and nitrogen tents and "houses" to simulate the effects of sleeping at high altitude. The future holds the promise of more powerful and exotic interventions.
At a recent meeting of the American Society for Gene Therapy, for example, Barry Byrne, Professor of Molecular Genetics and Microbiology at the University of Florida, described a considerable amount of research currently underway to identify biological determinants of athletic performance, including vascular endothelial growth factor (VEGF) to increase vascularization; leptin as a fat metabolizer; myostatin to increase the number of muscle cells; and therapeutic antibodies and cytokines to reduce susceptibility to athletic injuries.
Additional enhancement interventions are expected from the knowledge gained by the Human Genome Project. In July 2003, for example, researchers reported finding that different versions of the alpha-actinin gene were associated with sprinting and endurance running,3 opening the door to genetic testing at an early age to identify promising athletes, and to potential biomedical interventions based on this genetic discovery.
Ethical Principles in SportLed by the international Olympic movement, organized sport has attempted to prevent the use of performance-enhancing drugs by banning them, establishing testing programs and punishing athletes caught using prohibited substances. The basic anti-doping principles of sport were laid down in 1967 by the International Olympic Committee:
- "protection of the athletes' health";
- "respect for medical and sports ethics"; and
- "ensuring an equal chance for everyone during competition."
Of Risk and AutonomyAn obvious answer is that the fact that some sports are already dangerous does not justify making them more so by allowing the use of dangerous enhancements. But this begs the question of why enhancements should be singled out to ban. Why not require professional boxers to wear enormous protective helmets or to use much more highly cushioned gloves? Why not ban downhill ski racing, extreme sports, tackle football or rigid hockey sticks? The answer is that these actions would alter the fundamental nature of the sports. But that does not explain why we allow these sports to be fundamentally dangerous, or why risks from enhancements are deemed especially unacceptable.
Perhaps the answer lies in the assumption that the use of enhancements violates athletes' autonomy. We might feel less hostile to enhancements, for example, if athletes truly had a choice about whether or not to use them, but we know that, if some athletes use them, they all will have to. Coaches have admitted that athletes must use doping to succeed at highly competitive levels of sport. In short, the objection to the health hazards of enhancements may be that they are not freely chosen.
Yet athletes presumably still have a choice about whether or not to be athletes. Arguably, if you don't want to put up with the risks of enhancements, you can avoid them by becoming a computer nerd or an accountant, just like if you don't want to risk injury from football, you can simply not go out for the team. Why, therefore, focus on enhancements, rather than other risks?
Moreover, athletes routinely lose their autonomy in all sorts of ways. They give up sleep, certain foods, relaxation, recreation and certain relationships to adhere to their rigorous training schedules. Why is the loss of autonomy that characterizes the use of enhancements different from these other sacrifices that may be just as compulsory in order to be competitive?
One argument that is often heard is that the use of enhancements causes a particularly pernicious loss of autonomy because it is ultimately futile. If everyone has to use enhancements to be competitive, enhancement will not offer anyone any advantage. If an enhanced weightlifter can bench-press 50 extra pounds, everyone who uses enhancements will be able to as well, but their relative abilities will stay the same. The use of enhancements will be unavoidable but pointless, like an athletic version of the nuclear arms race. No one will be in any different position from using enhancements than if no one used them. But everyone will have to, and everyone will be exposed to the health hazards.
Equality and SafetyYet this argument assumes that enhancements affect everyone to the same degree — producing, say, a 50-pound increase in weightlifting ability. But this is not necessarily, or likely, to be the case, since people tend to react somewhat differently to biological interventions. An athlete might hope that by using enhancements he or she would derive a greater advantage than the next person. More importantly, the same criticism made against enhancements can be lodged against all forms of training. Assuming that practicing for hours every day gives all athletes the same degree of improvement, why bother? The athletes would be just as well off if no one practiced, but we don't prohibit practicing, even though it is, in this sense, futile.
The objection to enhancements on the basis of safety might be clearer if enhancements invariably caused serious injury. But some athletes apparently use even potentially dangerous enhancements like steroids and EPO without suffering significant or irreversible harm and some enhancements, like nitrogen tents, seem safe enough to permit widespread use. Moreover, if we are primarily interested in preventing harm, we ought to invest the bulk of our anti-doping money in research to develop safer enhancements, rather than in preventing their use.
This brings us to the third of the IOC's anti-doping principles, "ensuring an equal chance for everyone during competition." As noted above, it may be the case that to remain competitive all athletes have to use enhancements if any do. But what if enhancements were not available to everyone? If they were too costly or the supply were too limited regardless of how much athletes were willing to pay, so that only some athletes were fortunate enough to obtain the performance advantages, the use of enhancements would seem unfair.
On the other hand, athletes are never equal at the moment of competition. They enjoy lots of unfair advantages. Some are born with greater natural abilities. Some have wealthy parents or the good luck not to become injured. Not every Olympic gymnast can be trained by Bela Karoly; not every figure skater is able to grow up practicing on her personal backyard ice rink, like Sara Hughes. It is difficult to understand why sport tolerates these advantages but would not permit the use of enhancements by those who could gain access to them?
One answer is that it is fair to permit people to benefit from the distribution of natural abilities and good fortune because these factors lie outside of our control. But that simply is not true. While we may be unable to control the distribution of talent and luck directly, we certainly can alter their impact. For example, we can make competition more fair by using handicapping to level the uneven playing field created by natural talent and luck. This would increase the role of pure effort and determination as predictors of success, making victory more earned and therefore more deserved. Indeed, we already do this in some sports; there are weight classes in boxing and wrestling, and lead is slipped into the saddles of race horses to offset differences in abilities.
Alternatively, we could use enhancements to increase fairness, by allowing them to be used only by those who were disadvantaged by the natural lottery. For example, enhancements might enable athletes with disabilities to compete in the real rather than in "special" Olympics.
Defending the Ethics of SportsIf the safety and equality objections to performance enhancement are not completely persuasive, we are left with the final IOC principle: the defense of sports ethics. Performance enhancements must be banned because, according to those who make the rules of sport, using them is unethical. Cheating. But why? One reason is that it may allow athletes to avoid putting in the tremendous hard work required to be a successful competitor. Imagine if athletes could infuse a broth of enhancement genes and walk off with Olympic medals without going through the ordeals of practice and conditioning. The medal would seem unearned, the accomplishment inauthentic. In this sense, use of enhancements might be different from natural talents because athletes presumably must train and practice to make use of their talents, and we may be said to be rewarding the work involved rather than just the talent itself.
But hard work is not the only thing we reward. We also reward unearned advantages, like talent or luck. And there is the classic story of the English school testing system for determining whether youngsters should go on to prepare for a university or technical school education. For many years, the story goes, part of the test required the pupils to write an essay on Sir Francis Drake. Since the question was always the same, the students prepared for it in advance, writing drafts and polishing them with the help of their English teachers. The test became little more than an exercise in memorization and penmanship — and, of course, of who had the best English teacher. Then one year, without warning, they changed the question. When the students sat down to take the test, they were asked to write an essay on dogs. One student was not fazed. "There are many different kinds of dogs," he began: "Hounds, sheepdogs, Alsatians, collies, and sea dogs. Sir Francis Drake was a sea dog." The student then proceeded to copy down his essay on Sir Francis Drake.
Your reaction to this story is most likely amusement and admiration for the boy's cleverness. Yet he figured out a way to avoid doing the work the examiners expected of him and all the others. In that sense, he cheated — just as if he had been clever enough to figure out how to get his hands on an enhancement drug and not get caught.
But the story would be different, it might be said, if the student had smuggled a copy of his essay on Sir Francis Drake into the examination room. Why? Because that kind of advantage is against the rules. The IOC's defense of sports ethics might be said to be valid, then, because the use of performance enhancements violates the rules of sport. But that is circular - "enhancement is against the rules because it is against the rules." What is so sacrosanct, after all, about the rules? Rules change all the time. Look at the evolution in the size of tennis racquet heads, for example. Until the 1960s, the poles used for pole vaulting were made out of wood. Then someone began making poles out of fiberglass, which added an additional couple of feet to the maximum height athletes could attain. The rules could have prohibited the use of fiberglass poles, but they didn't, and everyone started using them. You had to in order to remain competitive. Likewise, the rules of sport can be changed, or left unchanged, to accommodate enhancements.
But it would be a mistake to dismiss the significance of rules. It is perfectly appropriate for a sport to make rules and to require competitors to stick to them, to say that you can use fiberglass poles or nitrogen tents, for example, but not steroids or EPO. Moreover, the rules can be completely arbitrary. Indeed, they often are, the reasons for them lost in the mists of their origins. There is nothing inherently wrong with a sport saying that it must be played in a certain arbitrary way, like standing on your head, or without using enhancements.
Playing by the RulesRules and the traditions they represent are important because they create a set of expectations among athletes, coaches, judges and spectators. The playing field may not be level, but everyone understands that only certain bumps and dips are permitted. You don't expect to see someone slugged in the face with a cricket bat (although you might with a hockey stick). Moreover, athletes are expected to be role models for young people. The use of enhancements, particularly banned drugs, may be taken as an endorsement of illicit drug use in general.
The consequences of disappointing these public expectations are not to be underestimated. Just look at how upset baseball fans are at reports that home-run hitters use steroids. To preserve spectator loyalty, not to mention revenues, athletic organizations like the International Olympic Committee are perfectly within their rights to make their own rules and enforce them, even if the rules are not always defensible or fair.
Furthermore, it is clearly justifiable for sport to ban dangerous practices. If enhancements are unsafe or their safety uncertain and suspect, it is appropriate to discourage their use in order to protect athletes. Nor is it a contradiction for the rules to permit other dangerous practices. Sport should strive to be as safe as possible, and this justifies not allowing athletes to add to their risk with a new set of dangerous or potentially dangerous behavior, at the same time that the nature of the sport, as defined by the rules, creates inherent dangers. On the other hand, the costs of enforcing a ban may be too high in light of the risk. Testing programs are expensive. Moreover, it is especially difficult to design tests to detect enhancements that are synthetic versions of natural substances found in the body, like EPO, the red blood cell stimulant. Athletes and officials may balk at the intrusiveness of repeated blood or urine testing of questionable validity. This may justify allowing athletes to assume relatively minor risks or those that are commensurate with the risks already inherent in the sport.
Should sport open the door to enhancements that appear to be relatively innocuous? Prohibiting them would be justified if they were not widely available, on the ground that there is no point in adding to the unfairness in sport already created by differences in natural talent, luck or unearned wealth. A ban also can be supported simply on the basis that enhancements violate the rules. But sports organizations should weigh the costs of enforcing the rules against the impact of changing them to permit the use of safe enhancements. A ban against the use of nitrogen tents may be futile, for example, since it may be next to impossible to develop tests to determine if an athlete had done so.
Even in cases where accurate tests could be developed, sport should consider letting the market decide whether relatively safe enhancements should be permitted, especially if they are widely available and the costs of prohibiting them would be substantial. Enough people enjoy watching or participating in power-lifting, an offshoot of weightlifting that does not test competitors for enhancement drugs, that the sport has survived since the early 1960s. On the other hand, XFL football died when people refused to watch it.
The Role of the PhysicianThe availability of performance enhancements creates special problems for physicians who have athletes as patients. In general, the anti-doping rules of sport are aimed at athletes, teams, and, to a lesser extent, coaches and trainers, and not at physicians who may be the source of the banned substances. While the Anti-Doping Code of the World Anti-Doping Agency prohibits anyone from administering or attempting to administer a banned substance, or assisting, encouraging, aiding, abetting, covering up or being complicit in a violation or attempted violation of an anti-doping rule,1 sports organizations rarely impose penalties on physicians, and then only on team doctors. For example, a Romanian team physician was asked to leave the Olympic Village at the 2000 Sydney Olympics after he gave a banned over-the-counter cold remedy to a gymnast.
Since no drugs have been approved by the FDA to enhance sports performance, physicians who prescribe them to their athlete-patients are engaging in off-label prescribing. With one notable exception — human growth hormone, discussed below — this is not illegal under federal law unless the drug is a controlled substance, such as anabolic steroids or amphetamines. It is a felony to prescribe a controlled substance for other than a legitimate medical purpose and doctors have been prosecuted for prescribing them for use by athletes (e.g., State of Ohio v. Spencer 1998; In re Grand Jury Proceedings 1986).
Human growth hormone, however, is different. In 1991, Congress amended the Federal Food, Drug, and Cosmetic Act to make it a felony to distribute or possess human growth hormone "for any use in humans other than the treatment of disease or other recognized medical condition." Thus, a physician who prescribed human growth hormone for enhancement use by athletes would commit a federal felony even though it is not a controlled substance.
Physicians who prescribe controlled substances to athletes also may be subject to disciplinary action by state medical boards and professional societies. Moreover, physicians in some states may be sanctioned by state medical boards for prescribing certain non-controlled substances. Ohio, for example, prohibits physicians from prescribing, in addition to anabolic steroids, "growth hormones, testosterone or its analogs, human chorionic gonadotropin (HCG) or other hormones for the purpose of enhancing athletic ability."
Confidentiality v. ReportingWhat if a physician, other than one employed by a team or sports organization, becomes aware that an adult patient is using banned performance-enhancing drugs in athletic competition? Not only is the physician not required to report the abuse to the sponsoring sports organization, but it is a breach of confidentiality to do so. The only exception would be if the athlete's behavior constituted a serious threat to the health or safety of an identifiable third party.
Although it might be argued that an athlete who uses banned substances jeopardizes the health of competitors by making it necessary for them to do so as well, this is too indirect a threat to health or safety to entitle the physician to breach confidentiality. The physician should make an effort to counsel the patient about the health hazards associated with the use of banned substances. The physician also may terminate the relationship with the patient, provided the patient is given notice and a reasonable opportunity to obtain care elsewhere.
What if the patient using performance-enhancing substances is a minor? May or must the physician notify the parents or guardian? The answer is not clear. The law in most states allows a physician to treat a minor for drug abuse without notifying parents or obtaining their consent, since it is important for minors to feel that they can trust a physician to maintain confidentiality, and this policy encourages them to seek treatment. On the other hand, the physician may not actually be treating the minor for drug abuse, but may learn of the abuse incidentally. Moreover, the physician may feel that the drug use poses a serious threat to the minor's health and wish to notify the parents to enlist their help.