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Juridical and ethical peculiarities in doping policy
  1. Mike J McNamee1,
  2. Lauri Tarasti2
  1. 1Swansea University, University of Wales, Swansea, UK
  2. 2Supreme Administrative Court of Finland, Helsinki, Finland
  1. Correspondence to Professor Mike J McNamee, Swansea University, University of Wales, Swansea, Singleton Park, Swansea SA2 8PP, UK; m.j.mcnamee{at}swansea.ac.uk

Abstract

Criticisms of the ethical justification of antidoping legislation are not uncommon in the literatures of medical ethics, sports ethics and sports medicine. Critics of antidoping point to inconsistencies of principle in the application of legislation and the unjustifiability of ethical postures enshrined in the World Anti-Doping Code, a new version of which came into effect in January 2009. This article explores the arguments concerning the apparent legal peculiarities of antidoping legislation and their ethically salient features in terms of: notions of culpability, liability and guilt; aspects of potential duplication of punishments and the limitations of athlete privacy in antidoping practice and policy. It is noted that tensions still exist between legal and ethical principles and norms that require further critical attention.

  • Anti-doping
  • applied and professional ethics
  • legal aspects
  • liability
  • privacy
  • sports medicine ethics

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Footnotes

  • Competing interests MJM has been a consultant for the World Anti-Doping Agency.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i There are exceptions. Much ink has been spilt over the status of Barry Bonds, the American baseball player who broke the alltime record for home runs while openly using steroids.

  • ii An argument similar to this is put forward by Miah3 among others. Nevertheless, two counter-arguments might be made: (i) that doping-induced hyperaggression would harm opponents in certain sports; and (ii) that denying no-doping ahtletes their just rewards in itself represented a harm to others.

  • iii We follow MacIntyre's practice/institution distinction in which the former refers to various complex social activities (eg, agriculture, chess, football), whereas the latter refers to its mediating bureaucracies (eg, the International Olympic Committee, Federation of International Football Associations, and so on).

  • iv Responses to doping do not stop at sports bodies. In 2004 the first WADC was signed by 186 states.

  • v The latitude opened up by the precise wording warrants further consideration: ‘any (…) type of complicity involving an anti doping violation’ will render sports physicians culpable. This seems indiscriminately broad.

  • vi Sports organisations do not have such coercive powers as authorities. Their powers are limited within their sport. Therefore, for example, they can prevent the athlete from competing in official competitions or tournaments. Similarly, the execution of the sanctions is limited.

  • vii Strictly speaking, there is no presumption of guilt: the mere presence of the doping product renders the athlete guilty of a violation.

  • viii On advice from the team doctor the 17-year-old Romanian gymnast, Andreea Raducan, took an analgesic that contained ‘pseudoephedrine’ a banned substance. She was thus subsequently stripped of her individual gold gymnastics medal at the Sydney 2000 Olympics.

  • ix The newly revised WADC includes a more flexible sanction system than the previous system to allow for this fact.

  • x On an analogous point, sports physicians have been known to offer their services on a voluntary basis even in highly lucrative sports in order to avoid what they perceive as problematical contractual terms and conditions.

  • xi One commonly cited reason for the failure is that the athlete sought an injunction immediately before the Beijing Olympics thus attempting to ‘spring’ the judge into a decision in his favour. It appears that Chambers and his team underestimated the judge's respect for due process.

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