On May 20th, on the heels of new doping allegations against Lance Armstrong, Forbes contributor Matt Herper resurrected in a short online article a long-running debate that tends to resurface each time a notable athlete is caught using a banned performance-enhancing substance or is accused of doing so. In his article, entitled “The Case For Performance-Enhancing Drugs In Sports," Mr. Herper appears to argue that any drug alleging to enhance the performance of an athlete should be made legal so long as the substance (1) has been proven to do what it claims to do and (2) is safe. A quick online search reveals many writings on the subject, with compelling arguments both for those who would open the floodgates to all performance-enhancing drugs and those who would ban them. The following is a list of arguments most often repeated by each side, although it is by no means exhaustive.
I. For
A. The Value of Spectacle: Bigger, Stronger, Faster
Whether he realizes it or not, to the average fan, bigger, stronger, and faster is always better. During the height of the MLB steroid era, baseballs were flying out of ballparks at unprecedented rates, and batting records were being shattered. Fans flocked to ballparks, and owners profits skyrocketed. Many of today’s running backs are bigger than linemen of the 1970s. Any Olympics without a half-dozen records shattered would be considered by some to be a failure.
B. Openness = Safety
Declaring a drug illegal just drives it underground, hidden by sophisticated masking agents. Once underground, it is very difficult to monitor, thus increasing health risks.
C. Loss of Therapeutic Value
Some banned drugs actually have a therapeutic value, helping athletes recover from injuries quicker. An inflexible system that draws a line in the sand and completely bans a drug having healing abilities ultimately hurts both athletes and sport.
D. Costs v. Value
Because of the success of masking agents, the banning-and-testing effort is a waste of time and money. On this topic, Matt Herper states “Our ability to detect these drugs is pretty bad,” although he later admits that detection efforts are gaining ground.
E. Equity
Those who really want banned drugs will find a way to get them, resulting in an inequity for those who cannot acquire them. Making these drugs available for everyone levels the playing field.
F. Supplements & Vitamins v. Performance-Enhancing-Drugs: A Slippery Slope
Why are vitamins and supplements like creatine, amino acids, glutamine, citrulline, caffeine, and dozens of other publicly-available products legal when hormones, steroids, and other performance-enhancing drugs are not? What about apparel like sticky gloves that allow wide receivers to haul in passes or swimwear that is more resistant to drag than human skin? Don’t all of these things provide a competitive advantage to whomever uses them? Who decides what is legal and what is illegal? Isn’t the criteria subjective? Opening the floodgates to all such products eliminates these problems.
G. Drugs In Sports is Nothing New
Those who believe that the introduction of performance-enhancing drugs into sports is a newly-introduced disease that threatens to undermine those sports are kidding themselves. The practice has been occurring since sport began. In ancient Egypt, the hooves of Abyssinian donkeys were ground up and boiled in oil. Ancient Olympians reportedly ate live bees and sheep testicles. In the 19th century, boxers regularly took heroin. For the last 50 years, professional soccer and baseball players have been known to regularly take amphetamines to fight fatigue.
II. Against
A. Negative Medical Side Effects
Although Mr. Herper calls for officials “to experimentally monitor new [drug] entrants, . . . for both efficacy and safety,” that is easier said than done, even after one determines what “experimentally monitor” means. Scientists always are creating new drugs, and the negative health effects from any particular enhancement can take decades to appear. For this reason, the FDA usually takes years to issue approval of a drug, after determining that the benefits of a proposed drug outweigh its risks.
By example, anabolic steroids once were legal and openly used by many professional athletes, primarily wrestlers and bodybuilders. Steroids are now known to have many negative side effects, including high blood pressure, coronary artery disease, liver damage, testicular atrophy, stunted skeletal growth, acne, and the appearance of male features in women, e.g., deepening voice, facial hair, and body hair.
B. Overstressing Other Body Parts
The increased levels of muscle mass achievable with modern drugs are overstressing bodies in a number of ways. Bones, tendons, and ligaments often cannot cope with the muscle growth around them. The average NFL lineman now weighs over 300 lbs., and knees often buckle under the strain. Sometimes, even the muscles themselves break down. Hall of Fame baseball player and all-time stolen-base leader Rickey Henderson denies ever having used a banned substance. Regardless, he had massive muscular legs compared to other players and was notorious for frequent hamstring pulls. On this topic, the late sportscaster George Michael said the following during a speech in 2007: "[I]n 2002...17 percent of total baseball payroll went to guys who were on the injured list with muscle tears, muscle strains, ruptured Achilles tendon, and on goes the list. [Dr. James Andrews] said that we have had a 200 percent increase in just the five years prior to 2002. Baseball owners paid $370 million to players who were not able to play. Most of them according to Dr. Andrews, were related to their use of anabolic steroids. And you now want to admit--legalize it, and govern it?”
Perhaps the biggest concern stemming from the increased size and speed of enhanced modern-day athletes is the increased risk of concussion. More mass and speed means more force. More force applied to more heads means an increased risk of concussion frequency and severity. The growing size and speed of players in both the NHL and NFL often are regularly cited as major factor for what appear to be increasing concussion rates in those leagues.
C. Effect on Children
Whatever the risks of drug use to adults, an even greater concern is their effects on children. As all parents know, “Do as I say, not as I do” rarely wins the day when dealing with kids, and the use of drugs by adults will be seen as tacit approval of their use by children. The potential dangers are severe and go well beyond the possibility of a 15 year-old field-hockey player being able to grow a thick, luxurious mustache. This was a key factor in Congress’ passing of the Clean Sports Act of 2005. Said Tom Davis, JD, US Representative (R-VA), “[The] legislation . . . is aimed at not only getting rid of performance enhancing drugs on the professional level, but also to send a message loud and clear to the young people of America: Steroids are illegal. Steroids are dangerous. They can be deadly. And there is no place for them in our sports leagues or on our school grounds."
D. Increased Costs
Medications alleged to aid performance to those making millions of dollars in professional sports are unlikely to be inexpensive. Legalizing banned substances only will result in an increase in the total number of dollars being spent on these products. It also will result in me purchasing more stock in Pfizer.
E. False Equity
Legalizing banned substances will not level the playing field. Some teams and athletes will be capable of affording them, others will not. Also, the most effective regimens are also the most sophisticated and expensive. As a result, those people and organizations with the most money would benefit most from the legalization of these products, and the gap between the haves and the have-nots only would widen. As stated by Joe Lindsey, of Bicycling Magazine, “[W]herever you draw the line, something, some technique or substance, will always be off-limits. And so you've merely moved the line, not erased it.”
F. Feeding Addiction and Abuse
Most banned substances are not chemically addictive, but they can become psychologically addictive. The desire to win can become overwhelming, and using chemicals to achieve one’s goals is far easier than spending many hours running around a gym or lifting weights. Drug abuse, both in terms of the number of drugs taken and dosages, could grow to crisis levels and result in many of the same social ills that result from chemical addiction to street drugs.
G. Undermining the Very Concept of Sport
Historical use of enhancers is not a persuasive reason to legalize currently-banned drugs because the starting effectiveness of modern drugs are fundamentally changing and potentially destroying sports. As stated by Thomas H. Murray, PhD, President of The Hastings Center for bioethics, “natural talents and their perfection are the point of sports.” Carl Djerassi, PhD, of Stanford University, agrees, arguing that sports are being changed “from a competition of athletes to one of chemists, where the emphasis will shift abruptly from body to mind.” Says psychotherapist Jay P. Granat “The purity of sports, the beauty of sports is about athletes competing with a sound mind and a sound body. We don’t want the athlete with the best chemist, best pharmacist, or the best transfusionist to be the champion." Would the NFL allow quarterbacks to wear exoskeleton arms permitting 100-yard laser-like throws? Should long-distance runners be allowed to compete using motorcycles?
III. The Winner
For me, the Against group wins. I have no desire to see my teenage daughters pop a few pills and suddenly be able to bench press more weight than I can. Further, as a Yankees fan, I prefer to keep in place the asterisks that accompany the 2004 and 2007 “championships” of their arch-rivals. In all seriousness, the advantages and risks of modern-day drugs are just too great. To be sure, it can be difficult to determine where nutritional supplements end and performance-enhancers begin. That it may be difficult does not justify quitting in making a reasoned attempt to draw that line. Further, careful exceptions should be made for those drugs that help prevent injury or help injuries to heal quicker. As for the claim that legalization is warranted because of the difficulties of testing and something far less than a 100% success rate in catching cheaters, that type of thinking would result in the elimination of 99% of all criminal statutes. Laws and rules are made to serve both as walls and guideposts.
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees Chairman of DRI's Sports Law Specialized Litigation Group, and a member of the Sporting Goods Manufacturers Association Legal Task Force.