The politics of steroids

Story by Chris Graham

Last year it was baseball. Now it’s Floyd Landis and Justin Gatlin … and baseball.

The issue of the use of performance-enhancing drugs by athletes continues to get scads of press – and you know what that means.

Come on – it’s an election year.

One would assume that Congress would want to jump into the fray – given the attention being afforded the Landis and Gatlin cases, in particular, one, and two, didn’t they make an issue of the steroid-abuse problem in Major League Baseball last year?

They did, but it doesn’t look like they’re going to be revisiting the issue anytime soon.

“I would be surprised if Congress acted again on this issue in the near future,” said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog.

“This certainly has garnered the attention of the sports world. But with elections coming up, with the war in Iraq, with Israel, it doesn’t seem as if there is a window of time to address this,” McCann told The Augusta Free Press.

Bob Thompson, the director of the Center for the Study of Popular Television at Syracuse University, points to another issue that could be serving to hold back congressional action.

“I don’t feel yet like we’ve really reached that point of total public outrage all united together in one sort of voice,” Thompson said.

“There are people who are outraged about steroid use. They think it’s dangerous. They find it destroying the whole spirit of the game. And I think there are people out there who are confused by it – did Floyd Landis really use them, did such-and-such really use them? And I think there are people who are out there who liked all the home runs and don’t have a big problem with it,” Thompson said.

“It’s easy to get people outraged about, say, child molesters. I don’t know that we’re at that point with steroid use. I think there are a lot of people who are kind of confused by the whole thing,” Thompson told the AFP.

Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, thinks it is wise of Congress to steer clear of getting involved in the issue any more than it has.

“The issue here is that there really isn’t any right or wrong about what to ban or prohibit in sports once you get past risk,” Caplan said.

“Obviously you don’t want athletes doing dangerous things – and you want to discourage them from using them because you know they’ll try to use them even if they shouldn’t, because they’re competitive by nature. So you sometimes have to tell them – no growth hormone, no steroids, no blood doping, because these are all considered risky for you,” Caplan said.

“But when you get over to questions of – can you use a bamboo pole vault, or can you use certain running shoes, or can you use that clap skates, or can you curve your stick in hockey, or can you wear body armor in football – that’s up to the athletes and the fans. They decide what kind of competition that they want to see. And there isn’t any right or wrong about it,” Caplan said.

“The setting of rules should be done by fans, athletes and sports officials – not government, not anybody else. We make the games. It’s not like there’s some platonic form or essence of what the game is. Because games have evolved,” Caplan said.

Paul Haagen, the co-director of Center for Sports Law and Policy at Duke University, offers two other reasons for Congress to keep its nose out of the regulatory end of things.

“With the international sports, I think there is a really strong case that this ought to be left to the World Anti-Doping Agency – and the reason for that is when you’re dealing with international competitions, there’s a lot of suspicion from country to country that individual countries are protecting their athletes, that they’re not interested in rooting this out. And so to have an international, independent body without the conflict of interest of promoting sport and policing it, really I think makes sense,” Haagen said.

“When you’re dealing with the professional sports – basketball, football, baseball, hockey – I think there’s another consideration, and that is, there you’ve got a union of players, and it seems to me to make a great deal of sense for basically this to be a matter of collective bargaining. There’s an obvious objection that can be made – that Congress may want to pressure them into negotiating seriously. But things like drug use in the workplace traditionally in American labor have been left to collective bargaining,” Haagen said.

“With all of the attempts to root this out, what we’re dealing with are risks of false negatives and false positives. And if you have the rules the way they’re written now, it is virtually impossible for athletes to defend themselves. They’ve stacked the procedural rules so strongly against the athletes that the chance of a false positive being in there is relatively high. I think it makes sense when you’re dealing with that sort of risk to have the principal stakeholders decide for themselves when too much process is protecting people who should be removed from the sport – which was almost certainly the case in most American professional sports in the 1990s,” Haagen told the AFP.

That isn’t to say that there isn’t something that can be done by governmental entities with relation to the problem, to hear McCann tell it.

“If the resources are there, the enforcement of laws is crucial,” McCann said, referring to laws already on the books making the sale, possession and use of many performance-enhancing drugs federal crimes.

“We often see legislatures pass law that aren’t subsequently enforced – or aren’t enforced with real effort in part because there aren’t the resources available to enforce them. So I think to the extent that these laws on the books could be enforced with fairness, then that seems to me to be the right solution – because the law reflects the will of the people. The laws that pass, presumably our legislatures are representing our interests, and this is something that we wanted to happen,” McCann said.

“I think enforcement of laws is probably the best way to go about doing it,” McCann said.



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