The policy issue concerning the choice of method to deal with doping.

• Author: Vollmecke, Julia
• Position: Doping As a Crime?

1. Introduction

   Doping in sports has become popular within the past few years. The Tour de France scandals in 1998 and recently in 2007 or the BALCO affair in 2003 (1) are only a handful of examples of how doping infractions seriously hit the news' headlines. More and more athletes are going to use performance enhancing drugs. Doping seems to have become an integral characteristic of sports competitions, despite the diverse side-effects the use of prohibited substances may have.

   Fortunately, governments seem to have recognised the alarming development of doping cases. The USA, for example, used to be very reluctant in restricting domestic professional sports by imposing drug laws to sports. (2) To ensure a sustainable successful economy, the government deferred decision-making to private organisations. Since government regulation was seen as potentially profit limiting, restrictions should only have been imposed if necessary. (3) The attitude changed significantly when steroids in sports became a national issue and began to make headlines in the news on a regular basis. (4) Most importantly, the US government recognised the effect steroid use can have on youths and amateur athletes (5) and now sees regulation as a necessary step to address the issue. The Clean Sports Act of 2005 has been introduced to keep teenagers and youths away from performance enhancing drugs by eliminating their use by professionals in the US. (6) The bill provides for the uniform adoption by the four major American sports leagues of rules similar to the strict Olympic enhancement policies in order to eradicate steroid and enhancement use in competitive professional athletics. (7) Some European countries also have implemented anti-doping laws including criminal provisions to combat doping infractions. France, Spain, Belgium and Italy are only a few countries to mention here. (8)

   Switzerland, for example, adopted a dual doping sanction system where sanctions can be imposed by sports governing organisations or by public authorities. (9) The Federal Act on the Advancement of Sports of 2002 provides criminal sanctions in order to expand the sanctions of sports organisations.

   This year, Germany finally introduced an Anti-Doping Law. The government recognised that doping tends to destroy ethnical-moral values of the sports world and took it as its obligation to protect society's health. (10) Since 66 percent of all adults living in Germany participate in sports regularly and see professional athletes as their heroes, politicians assumed that the fight against doping would have a positive effect on society's health. (11) Whether the new Anti-Doping Law can be seen as innovative in the fight against doping is still contested. Opponents still question whether the government should get involved in the combat against doping and face the difficulties the introduction of such legislation entails.

   The policy issue concerning the choice of method to deal with doping is not over yet.

2. The Situation in Germany

   In Germany, both the sport itself and the state are dealing with doping. Whilst the sport and its authorities are primarily controlling and sanctioning athletes, the state is more reluctant in regulating doping issues. This might have changed within the past few years.

   The state has become seriously concerned about the increase of doping incidents.

   Consequently, it has been thinking of extending its legal provisions to profoundly regulate anti-doping violations. By this time, the State is already processing a so called Anti-Doping Law (12) which expands existing regulations.

   Before the new law was introduced by the German government, the debate of whether to interfere in sports regulations through governmental legislation, and criminal sanctions in particular, had been broad and controversial. Since the new Anti-Doping Law is not satisfying for many opponents, the discussion is still ongoing.

   A The Debate

   1 The pro arguments

   The supporting arguments primarily consider the doped athlete as being a delinquent rather than a victim. They refrain from protecting an athlete using prohibited substances and encourage the government to get involved with the doping issue One of the biggest doping scandals in Germany is a good example with which to show the impact doping can have upon the sporting community. In the 1980s, the East German government was behind a doping scandal involving nearly 10,000 athletes. (13) The government implemented "State Plan 14.25", a secret initiative to develop sports nationwide by providing steroid pills to coaches. The coaches then gave the pills to unknowing athletes in their daily dose of vitamins. (14) The athletes were also given testosterone injections under the premise that the injections were "vitamin cocktails". (15) A similar scandal happened in 2003 in the USA. The Bay Area Laboratory Co-Operative (BALCO) supplied some of America's top track and field athletes with tetrahydrogestrinome (THG). THG was only identified after a prominent coach came forward and sent a syringe containing the drug to the USADA. (16) The USADA then developed a test for detecting the substance. (17) However, during the Sydney Olympic Games the international sporting community faced the shock of having a new undetectable drug in use without any means of testing for the substance. (18) Hence, the BALCO scandal illustrates how athletes can cleverly circumvent testing standards and procedures, while anti-doping agencies struggle to maintain accuracy and credibility in the system. (19) In addition, the 1998 Tour de France marked the eruption of a major scandal in cycling, revealing that doping was widespread within the cycling world at the elite level. This scandal was the driving force behind the creation of the World Anti-Doping Agency (20) and, unfortunately, repeated similarly this year.

   The doping scandals indicate that the sports world needs assistance from the state. It seems as if the sports governing bodies are unable to regulate doping in sport and as if the current anti-doping framework is ineffective. The application of criminal law on doping infractions could be a way to protect the individuals as well as the society from harm (21). It is argued that state coercion, in terms of criminal sanctions, is an appropriate method to avoid serious threat to society's welfare, integrity and existence (22). The adoption of such legislation is intended to reflect the important role sport plays in society and citizens' lives (23). People like sport, they play sport and they regard sport as one of the most important elements of pedagogic development (24). Sport promotes values that society creates and wishes to safeguard. Such values are known as health, honesty, fairness and fitness. It is submitted that doping in sport threatens all these values (25). Doping is deemed to be unhealthy. Doping is cheating and yet immoral (26). The methods used for cheating have become more and more innovative and have reached epidemic proportions (27). Doping therefore is of public interest and demands a public rather than a private response (28). It is argued that the application of criminal law has a moral element in its enforcement (29) and that "(...) it is in the public's best interests to invoke the law and protect sport from the disintegration it faces posed by an uncontrollable degree of cheating" (30). It is submitted that the application of criminal law on doping infractions fills up the elements currently missing in the sporting bodies' regulatory framework, such as certainty, consistency and transparency (31). A criminal framework is supposed to function as the protection of athletes' health as well as the protection of the social and cultural role of sports, the "fair-play" principle, the genuineness of the results, as well as a means of general and specific prevention (32).

   Moreover, both the increase of doping infractions and technologically undetected substances invite for criminally organised networks of pharmaceutical trading. During recent years, the misuse of steroid anabolic in Germany has significantly increased in the field of fitness and body building (33). This has lead to an organised criminal network where it is necessary to implement criminal investigation methods and deterrent sentences to solve the problem (34). This is true for leisure sports level as well as for professional sports.

   Hence, since the doped athlete is part of a network around him, the sports world is in need of the state's assistance. The state has to implement new laws in order to enforce methods, which the sports world does not cover (35). It is submitted that by means of creating new legal provisions, the state is supposed to assist the sports world in an effective way (36). An anti-doping law would offer new ways of criminal investigations and measures. Public prosecutors and judges would be able to order searches, seizures and interceptions of telecommunications (37). This would lead to improved methods for clarifying doping infractions. Therefore, the doped athlete needs to become subject of a criminal accusation in order to become the centre of any investigation (38). Once this is legally permitted (by an anti-doping law), the doped athlete is not immune from prosecution anymore. It is argued that a doped athlete facing a criminal procedure is likely to cooperate with the authorities.

   Certainly, he or she would cooperate in order to prove innocence (39). An incentive for cooperation would also be the fear of ending up incarcerated at the end of the trial. Also, the threat of costly legal proceedings can be intimidating enough to cooperate. This is also a factor not unknown to those who have an economic or other interest in having the accused athlete continue in competition (40).

   Likewise, the international anti-doping network seems to lack certain methods to efficiently and fairly combat doping. The fight against doping is the number one priority...