Written by Rick Collins, Esq J.D.
26 May 2020

 

The-Juiced-Elephant-in-the-Room

 

 

MD’s Legal Muscle

By Rick Collins, J.D.

 

The Juiced Elephant in the Room

 

Q: Are they thinking about making the use of steroids in sports a crime?  

 

A: In certain countries, like Italy, it already is.1 Some anti-doping advocates are suggesting such policies be universally accepted. Check out “The spirit of sport: the case for criminalisation of doping in the UK,” by Claire Sumner.2Sumner makes the case that criminalizing sports doping is needed to reverse a cynical public perception that sports are dirty, and also to support the “spirit of sport”– defined as the “essence of Olympism, the pursuit of human excellence, through the dedicated perfection of each person’s natural talents.” In addition to existing anti-doping sanctions, she favors arresting and prosecuting doped athletes for fraud by false representation, which she says could “act as a greater deterrent” and help “raise the overall ‘price’ of doping.” She sees this approach as part of a “growing global movement toward such criminalisation at national level.”        

In a pointed rebuttal, “Do public perception and the ‘spirit of sport’ justify the criminalization of doping? A reply to Claire Sumner”,3 Jacob Kornbeck and Bengt Kayser lay out the counter arguments, finding her position “fatally flawed.” They say “Sumner’s positing of a blanket loss of faith in elite sports performance by the public” confuses “what is depicted in the media and communicated by anti-doping authorities and their allies, with what the general public’s (largely undescribed) opinion actually is.” They question Sumner’s account of the history of doping in sport, and assert that “public perceptions alone cannot suffice to justify a legislative change, especially not if this would lead to new criminal sanctions.” In other words, unverified “public perceptions” are a lame-ass basis to start locking people up. As for the “spirit of sport,” Kornbeck and Kayser find the vague concept to be an unpersuasive reason to impose “draconian” criminal sanctions. They fear for the rights of athletes who would be pursued as criminals based on a testing system of “strict liability” in which even accidental ingestion of a banned substance is a violation.             

I get it. But both sides fail to acknowledge the proverbial elephant in the room. Sports doping IS criminalized in many countries including the United States, or at least that was the idea. Congress passed the Anabolic Steroid Control Act of 1990 (ASCA) for the purpose of getting steroids out of competitive sports by making the unlawful possession of steroids a federal crime. In passing the law, Congress expressed concern over the “unfair advantage” of steroid-enhanced professional and top-level athletes. Words like “unequal playing field” and “cheating” were used throughout the proceedings by witnesses and legislators alike. Then-Senator Joe Biden gave voice to what Congress was really afraid of: “… I think you are going to see, over the next several years some real backlash from the public about sports in America, from Olympians straight through to college sports, to pro sports. There is a feeling of resentment that is growing, and I do not know how it will manifest itself.”4 Sounds like Sumner’s recent argument, huh?           

Why does this matter? It matters because anti-doping advocates hold significant sway over government policy. Congress passed the ASCA to satisfy the anti-dopers’ demands for a “level playing field” – and yet, 40 years later, these advocates want the further action of criminalizing doping as fraud. Maybe they should have asked for this remedy back in 1990, instead of seeking a controlled substance approach to the problem. If they had, then thousands of otherwise law-abiding Americans who had absolutely nothing to do with competitive sports might not have been arrested and prosecuted for the possession of steroids for personal use (merely for the purpose of looking more muscular, which is the primary motivation for most non-medical steroid use5). The curious blindness by all involved in the anti-doping debate makes a larger point. Their tussle over steroid use in sports fails to see that sports cheating is a small slice of the non-medical steroid pie chart, but that the effects of anti-doping policies spill well beyond sports.           

Hmm. Suppose Sumner is right after all, and we should prosecute drug-tested dopers for fraud. But if we do, will we stop arresting personal-use possessors who are NOT drug-tested athletes? Not likely. In a nation where most elected officials are scared of being labeled soft on crime, the juiced elephant in the room isn’t going anywhere.

 

 

Rick Collins, JD, CSCS [http://www.steroidlaw.com] is the lawyer that members of the bodybuilding community and nutritional supplement industry turn to when they need legal help or representation. [© Rick Collins, 2018. All rights reserved. For informational purposes only, not to be construed as legal or medical advice.]

 

 

 

References:

 

           

 

1. https://www.wada-ama.org/sites/default/files/resources/files/2013-Paoli-Donati-Report-Executive-Summary-EN.pdf

 

           

 

2. Sumner C. Int Sports Law J (2017) 16: 217. https://link.springer.com/article/10.1007%2Fs40318-016-0103-2  

 

           

 

3. Kornbeck J and Kayser B. Int Sports Law J (2018) 18: 61. https://link.springer.com/article/10.1007%2Fs40318-018-0120-4

 

           

 

4. Steroids in Amateur and Professional Sports-The Medical and Social Costs of Steroid Abuse: Hearings before the Comm. on the Judiciary U.S. Senate, 101st Cong. 45 (1990)(Quote by Sen. Biden contained in Statement of Dorothy R. Baker, April 3, 1989)

 

 

 

5. https://jissn.biomedcentral.com/articles/10.1186/1550-2783-4-12