MEMORANDUM To: Dr. Anita Cava Esq. From: Chloe Harrison Date: November 7, 2016 RE: An Examination of Doping in Track and Field in the United States . Doping is one of the most common problems in sports, especially in track and field. Internationally, the Russian Federation could only send one track and field athlete to the Games of the XXX Olympiad in Rio de Janeiro, Brazil in 2016 as a result of a vast majority of the team abusing drugs in a years-long, state-run doping scandal. In the United States, the infamous Bay Area Laboratory Co-operative (BALCO) doping scandal led to the stripping of the titles of once-multiple Olympic gold medalist Marion Jones. Athletes like Tyson Gay and Justin Gatlin that continue to participate with United States Track and Field (USATF) and compete for Team USA in the Olympics despite serving past suspensions for use of performance-enhancing drugs (PEDs). The United States Anti-Doping Agency (USADA) has jurisdiction over such scandals, alongside the American Arbitration Association (AAA) and the Court of Arbitration for Sport (CAS). With an ever-changing list of banned substances and newly-discovered PEDs, how can USADA keep up with the war on doping and properly enforce anti-doping rules in track and field? Examining numerous documents concerning doping and the arbitration process in the United States, I will delve into three proposed solutions: non-analytical positive and circumstantial evidence; athletic, or biological, profiling; and allowing the use of PEDs in competition, getting rid of USADA and WADA. The World Anti-Doping Agency (WADA) Code, which USADA uses as its own code, defines doping as “the occurrence of one or more of the anti-doping rule violations”1 stated throughout Article 2 of the Code. Violations listed in the WADA Code that are considered doping include failure to submit a sample for testing, tampering with any part of the doping control process, and—arguably the most obvious offense— prohibited drug(s) found in an athlete’s sample during testing.2 Once a violation has been identified, the USADA Anti-Doping Review Board determines if USADA will charge the athlete with an anti-doping rule violation. If USADA charges an athlete, a sanction will be enforced; only then can the athlete decide to accept the sanction or challenge it in an arbitration hearing in front of judges from the American Arbitration Association (AAA). After the AAA releases a decision, the athlete, USADA, WADA, or the IAAF can choose to appeal.3 In the United States, USADA has the burden of proof; the standard of proof is greater than probability, but less than proof beyond a reasonable doubt.4
World Anti-Doping Agency. World Anti-Doping Code. 2015. p. 18. Ibid., p. 18-24. 3 United States Anti-Doping Agency. “Adjudication Process.” 2014. 4 Ibid. 2
A sample case involving doping in track and field is United States Anti-Doping Agency v. Mohamed Trafeh. Trafeh is an American originally from Morocco who was known for running marathons.5 Trafeh faced multiple violations, including use and trafficking of prohibited substances. The United States Department of Homeland Security detained Trafeh on February 8, 2014 at John F. Kennedy Airport in New York after he tried to smuggle six syringes of erythropoietin (EPO).6 EPO, a hormone produced by the kidney, promotes formation of red blood cells and is abused as a PED through the practice of blood doping.7 Blood doping of EPO increases aerobic capacity, but there is the risk that too many red blood cells in the blood stream can lead to sludgy blood and clots, causing a myriad of cardiovascular problems.8 Detaining of the drugs, along with circumstantial evidence, satisfied USADA’s burden of proof, and the AAA ruled that Trafeh would not only serve a four-year period of ineligibility, but that he would also have to return any awards and prize money from the time of EPO abuse in 2012 to 2014.9 Trafeh retired from competition before the arbitration hearing began.10 Three possible solutions to doping are non-analytical positive and circumstantial evidence, athletic (biological) profiling, and ridding USADA and WADA together. As mentioned in United States Anti-Doping Agency v. Trafeh, circumstantial evidence was a large factor in the arbitration hearing. Unlike analytical positive cases, which involve direct evidence, non-analytical positive cases are those where circumstantial evidence points to commission of the doping offense.11 Circumstantial evidence is that which relies on inference to connect it to a conclusion of fact.12 For instance, EPO, like many PEDs, can go undetected in many drug tests. Though Trafeh never failed a drug test despite evading the delivering of samples for testing, it is reasonable to conclude that Trafeh used EPO that was never detected in any of his tests. More concrete examples of citing circumstantial evidence can be found in the case: “First, [Trafeh’s] admission that he ‘…made an unwise decision to purchase EPO…’ clearly establishes that he possessed a prohibited substance in violation of the applicable rules. Second, when considered in combination with the admission above, [Trafeh’s] admission that ‘[he] was stopped before [he] was able to use EPO…’ establishes that he also violated the provision barring the attempted use of a prohibited substance as well because he failed to take any steps to relinquish the EPO prior to its discovery by the [Department of Homeland Security]. Finally, [Trafeh’s] admission that his EPO was discovered ‘[d]uring [his] return trip home after purchasing EPO…’ clearly indicates that
Runner’s World. “8-Time U.S. Champ Mo Trafeh. Retires after Being Found with EPO.” 2014. United States Anti-Doping Agency v. Trafeh. American Arbitration Association. 2014. p. 8. 7 MedicineNet.com. “Erythropoietin (EPO, the EPO Test).” 2016. 8 Wedro, MD, FACEP, FAAEM, Benjamin, and Melissa Conrad Stöppler. “Blood Doping Side Effects, Sports, Methods.” 2012. p. 2. 9 United States Anti-Doping Agency v. Trafeh. American Arbitration Association. 2014. p. 26-27. 10 Runner’s World. “8-Time U.S. Champ Mo Trafeh Retires after Being Found with EPO.” 2014. 5 6
McLaren, Richard H. “An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports.” 16 Marquette Sports Law Review 193. 2006. p. 194. 12 Wikipedia. “Circumstantial evidence.” 11
he was transporting or attempting to transport a prohibited substance at the time of EPO discovery.”13 The two biggest issues with circumstantial evidence are that a lack of direct evidence can lead to assumptions in an arbitration hearing, and that circumstantial evidence merely reasonably concludes a doping violation has occurred rather than preventing a doping violation altogether. Athletic profiling, or biological profiling, would provide more direct evidence of doping violations. Each track and field athlete would have a computer file that contains an index of physical characteristics, or a biological map; significant deviations from the map would trigger an investigation into possible PED use.14 One major issue with such profiling are that the evidence is still not direct, analytical positive evidence; it merely raises a red flag that doping is occurring or may have occurred rather than providing concrete proof that doping is occurring or may have occurred. Another issue with athletic profiling is that it is invasive, bringing up the privacy question for track and field athletes. There must be a debate as to whether or not athletes have the right to privacy concerning a new form of drug testing. The final proposed solution is to allow use of all PEDs, ridding USADA and WADA. Case Western Reserve University bioethics and law professor Max Mehlman is a proponent of this argument. Because there is no compelling enough argument to this school of thought to conclude why doping is unfavorable, PEDs should be allowed to better ensure equality in performance level.15 One issue with this solution is, as former cyclist Andrew Tilin pointed out, “it becomes an arms race as to who can get the most in their veins, the choicest in their veins.”16 Though Mehlman claims that doping levels the playing field,17 allowing abuse of PEDs makes the playing field worse by allowing the richer, greedier athletes to have greater access to said drugs than the poorer athletes. From a personal health standpoint, PEDs in large quantities could have adverse effects on the body. Again, overly abusing EPO leads to the thickening and clotting of the blood, causing potentially fatal cardiovascular diseases. Another issue, as I will soon explain, is how PEDs can uphold the definition of sport. If USADA and WADA remain, there are other ethical dilemmas to consider, from the pressure to avoid whistleblowing and the credibility of scientific evidence behind PEDs to the pressure to keep up with the competition and the creation of such PEDs. The pressure to keep up with the competition is arguably the most common reason why athletes take PEDs. For many, being the best means cheating to catch up to the best or cheating with the best. Andrew Tilin provided a hypothetical to VICE Sports:
United States Anti-Doping Agency v. Trafeh. American Arbitration Association. 2014. p. 19. Nafziger, James A.R. “Circumstantial Evidence of Doping: BALCO and Beyond.” 16 Marquette Sports Law Review 45. 2005. p. 55-56 15 Hruby, Patrick. “The Drugs Won: The Case for Ending the Sports War on Doping.” VICE Sports. 2016. p. 27-28. 16 Ibid., p. 27. 17 Ibid., p. 28. 14
“Imagine you're best writer at a magazine, you've basically been given all the best feature stories for years, and then one day Joe Smith comes in—who has always been mediocre—and suddenly and inexplicably, he's getting all the good work and adulation," he says. "Then his dealer pulls you aside and says, 'Here are the green pills I've been giving Joe.' What would you do?” One way to answer this hypothetical question ethically, but by actually applying it to PEDs, is using the rights test. The first step in the rights test is to decide the right being upheld or violated. Rights are defined as “a way of thinking that recognizes human beings as valuable in and of themselves (intrinsic value), regardless of their physical and mental attributes or position in society and regardless of what they are worth to others (extrinsic value).”18 The WADA Code considers “the spirit of sport” an intrinsic value.19 On the other hand, Article 27 of the United Nations’ Universal Declaration of Human Rights states that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”20 One question in need of an answer is whether or not sport is considered an art; the other question is whether or not PEDs can be considered beneficial scientific advancements that humans have the right to enjoy. Compelling arguments on why sport is not an art note that art is a creative expression, whereas sport is a physical activity; some sports, like dancing, use physical activity for artistic purposes, but sport is not considered an art according to these arguments.21 Moreover, sport is defined as “a physical activity (such as hunting, fishing, running, swimming, etc.) that is done for enjoyment ” according to the Merriam-Webster Dictionary.22 Concerning PEDs, though the drugs continuously advance, they only advance in order to be undetected on a drug test; therefore, PEDs’ advancements are motivated by a means to avoid following rules and avoid protecting the intrinsic value of sport. Because PEDs focus more on being the best in competition rather than enjoyment of the sport, the drugs further jeopardize the spirit of sport. If the spirit of sport is an intrinsic value, it must be protected from abuse. The WADA Code explains that sport deserves the status of a right because it is “the pursuit of human excellence through the dedicated perfection of each person’s natural talents.”23 If the said pursuit of human excellence can be argued as essential to a person’s dignity and self-worth, sport therefore deserves the status of a right. To people like Max Mehlman, this right conflicts with the right to use PEDs, granted that Mehlman’s school of thought views PEDs as an advantageous technology that, if no longer banned and accessible to all athletes, will level the playing field.24 Again, major risks with leveling the playing field are the side effects on a person’s body when it comes to using PEDs, especially those track and field athletes that would use the drugs heavily. Another major risk is how the sport of track and field can continue to be defined as Hamilton III, Ph.D., Brooke J. “How to Use the Rights Test.” 2009. World Anti-Doping Agency. World Anti-Doping Code. 2015. p. 14. 20 United Nations. “Universal Declaration of Human Rights.” p. 7 21 Debate.org. “Are Sports a Form of Art?” 2016. 22 “Sport.” Merriam-Webster Online. 2016. 23 World Anti-Doping Agency. World Anti-Doping Code. 2015. p. 14. 24 Hruby, Patrick. “The Drugs Won: The Case for Ending the Sports War on Doping.” VICE Sports. 2016. p. 27-28. 18 19
“amateur” by the International Amateur Athletics Federation (IAAF). Merriam-Webster defines the word as “a person who takes part in sports or occupations for pleasure and not for pay.”25 The “pay” portion is a debate unrelated to the topic at hand, but one must ask the question if whether or not a reasonable person would willingly use PEDs to engage in a sport for pleasure in order to be a champion while retaining an amateur status. In spite of Mehlman’s school of thought, this argument concludes that it is ethically wrong to take PEDs in track and field. One also must consider the weight of the motivating factors to use or refrain from using PEDs. These factors are usually the deciding factors to dope or to avoid doping. Personally, it would be a matter of keeping up with the rest of the competition versus facing the consequences of being caught years down the road. I would also consider the stress that comes with covering up the fact that I would be doping. All things considered, doping is a choice that individuals make as to whether or not to participate. In order to combat doping, we as individuals will have to challenge and possibly reconsider the meanings of “sport,” “amateur,” and “cheating” in sport altogether. We must also examine on what we are basing ethical standards when discussing the issue of doping, and how such standards are applied to specific situations. Finally, circumstantial evidence in arbitration hearings and athletic profiling during testing are the best methods for USADA to combat doping at the moment. Though these methods do not prevent doping, they can detect doping violations.
“Amateur.” Merriam-Webster Online. 2016.
BIBLIOGRAPHY 1. United States Anti-Doping Agency v. Trafeh. American Arbitration Association. 1 December 2014. Web. 6 November 2016 2. Debate.org. “Are Sports a Form of Art?” Web. 6 November 2016. 3. Hamilton III, Ph.D., Brooke J. “How to Use the Rights Test.” 2009. Handout. August 2016. 4. Gambaccini, Peter. “8-Time U.S. Champ Mo Trafeh Retires after Being Found with EPO.” Runner’s World. 2014. Web. 6 November 2016. 5. Hruby, Patrick. “The Drugs Won: The Case for Ending the Sports War on Doping.” VICE Sports. 1 August 2016. Web. 13 October 2016. 6. McLaren, Richard H. “An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports.” 16 Marquette Sports Law Review 193. 2006. p. 194. 7. Merriam-Webster Online. “Amateur.”2016. Web. 6 November 2016. 8. Merriam-Webster Online. “Sport.” 2016. Web. 6 November 2016. 9. MedicineNet.com. “Erythropoietin (EPO, the EPO Test).” 2016. Web. 6 November 2016. 10. Nafziger, James A.R. “Circumstantial Evidence of Doping: BALCO and Beyond.” 16 Marquette Sports Law Review 45. 2005. Web. 13 October 2016. 11. United Nations. “Universal Declaration of Human Rights.” Web. 6 November 2016. 12. United States Anti-Doping Agency. “Adjucation Process.” 2014. Web. 6 November 2016. 13. Wedro MD, FACEP, FAAEM, Benjamin, and Melissa Conrad Stöppler. “Blood Doping Side Effects, Sports, Methods.” MedicineNet.com. 2012. Web. 6 November 2016. 14. Wikipedia. “Circumstantial evidence.” Web. 6 November 2016. 15. World Anti-Doping Agency. World Anti-Doping Code. 2015. Web. 13 October 2016.