In defense of prometheus: Some ethical, economic, and regulatory issues of sports doping

Duke Law Journal

Volumn 57, Issue 6, 2008, Pages 1725-1741

  Posner, Richard A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

STEROID;

ACHIEVEMENT; ARTICLE; DOPING; ECONOMICS; ETHICS; HUMAN; LEGAL ASPECT; MEDICAL ETHICS; SPORT; UNITED STATES;

ACHIEVEMENT; DOPING IN SPORTS; ETHICS, MEDICAL; HUMANS; SPORTS; STEROIDS; UNITED STATES;

EID: 50849105424     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (71)

1. MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING (2007).
2. Id. at 25-44, 85-100.
3. Richard W. Pound, Editorial, Taking the Lead, PLAY TRUE (World Anti-Doping Agency, Montreal, Can.), Issue 1-2005, at 1, 1 (noting possibility of "genetically-altered" athletes in the 2008 Beijing Summer Olympics and athletic trainers' reports of trainer inquiries about the therapies "solely to enhance performance");
4. see also SANDEL, supra note 1, at 11 ("The widespread use of steroids and other performance-enhancing drugs in professional sports suggests that many athletes will be eager to avail themselves of genetic enhancement.").
5. See SANDEL, supra note 1, at 32-33 (describing the problem of distinguishing between simulated high-altitude training and doping).
6. Id. at 8-9.
7. Id. at 16-19.
8. See infra pp. 1734-35.
9. For Sandel's previous writings on his political philosophy, see generally MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996);
10. MICHAEL J. SANDEL, PUBLIC PHILOSOPHY: ESSAYS ON MORALITY IN POLITICS (2005);
11. Michael J. Sandel, The Baby Bazaar, NEW REPUBLIC, Oct. 20, 1997, at 25.
12. See SANDEL, supra note 1, at 25.
13. Id. at 26-27.
14. Id. at 27.
15. See HESIOD, Works and Days, in THEOGONY AND WORKS AND DAYS 37, 38-39 (M.L. West trans., Oxford Univ. Press 1999).
16. See infra pp. 1739-40.
17. SANDEL, supra note 1, at 27.
18. Id. at 28-29.
19. Id.
20. Stephen Jay Gould, The Streak of Streaks, N.Y. REV. BOOKS, Aug. 18, 1988, at 8, 8, available at http://www.nybooks. com/articles/4337 ("Nothing ever happened in baseball above and beyond the frequency predicted by coin-tossing models. The longest runs of wins or losses are as long as they should be, and occur about as often as they ought to.... There is one major exception, and absolutely only one-one sequence so many standard deviations above the expected distribution that it should not have occurred at all: Joe DiMaggio's fifty-six-game hitting streak in 1941.").
21. See SANDEL, supra note 1, at 27 (discussing "grit and determination").
22. Yorck Olaf Schumacher & Michael Ashenden, Doping with Artificial Oxygen Carriers, 34 SPORTS MED. 141, 142 (2004).
23. SANDEL, supra note 1, at 36.
24. Id. at 37.
25. Id. at 38.
26. Id. at 37-38.
27. See WILLIAM SHAKESPEARE, KING LEAR act 1, sc. 2.
28. But see J. Savulescu, B. Foddy, & M. Clayton, Why We Should Allow Performance Enhancing Drugs in Sport, 38 BRIT. J. SPORTS MED. 666, 667 (2004). As the title of this article makes clear, this is not the only possible view to take of the aim of sports; and if it is rejected, the case against sports doping is gravely weakened, as the authors explain.
29. SANDEL, supra note 1, at 37.
30. This is a distinction Sandel emphasizes. Id. at 43-44.
31. This was the subject of a Supreme Court decision, PGA Tour, Inc. v. Martin, 532 U.S. 661, 691 (2001), in which the Court required the PGA Tour to allow a disabled golfer to use a golf cart, which Sandel discusses, SANDEL, supra note 1, at 42-43.
32. See SANDEL, supra note 1, at 42-43.
33. Id. at 27.
34. Andrew B. Parkinson & Nick A. Evans, Anabolic Androgenic Steroids: A Survey of 500 Users, 38 MED. & SCI. SPORTS & EXERCISE 644, 648 (2006) (reporting that 90 percent of steroids users surveyed administered anabolic androgenic steroids in cycles of four to twelve weeks with drug-free intervals in between these cycles);
35. Miia Pärssinen & Timo Seppälä, Steroid Use and Long-Term Health Risks in Former Athletes, 32 SPORTS MED. 83, 84-85 (2002) (explaining that athletes generally use steroids in cycles of six to twelve weeks);
36. Chris Street, Jose Antonio & David Cudlipp, Androgen Use by Athletes: A Reevaluation of the Health Risks, 21 CANADIAN J. APPLIED PHYSIOLOGY 421, 434-36 (1996) (noting that most athletes use steroids intermittently and that moderate use produces only minor and reversible side effects).
37. J.C. Bradbury, What Really Ruined Baseball, N.Y. TIMES, Apr. 2, 2007, at A27.
38. See SANDEL, supra note 1, at 36-44.
39. Id. at 43 (footnote omitted).
40. Id; see also supra text accompanying note 28.
41. Id. at 11.
42. See, e.g., Fred Hartgens & Harm Kuipers, Effects of Androgenic-Anabolic Steroids in Athletes, 34 SPORTS MED. 513, 534-43 (2004);
43. J.J. Patil et al., Case Report, Near-Fatal Spontaneous Hepatic Rupture Associated with Anabolic Androgenic Steroid Use, 41 BRIT. J. SPORTS MED. 462, 462 (2007).
44. Richard D. Collins, Anabolic Steroid Legislation: The Wrong Prescription?, 9 CRIM. JUST. J. 98, 103 (2001) ("[I]t is time for our laws to discard the view of anabolic steroids as 'deadly drugs' for mature adults, based on the medical and scientific truth. The current scheme, with its unsupervised self-administration of potentially dangerous black market pharmaceuticals... is the wrong prescription indeed.");
45. see also Street et al., supra note 31, at 436 (arguing that controlled administration of moderate doses of steroids "could induce positive changes... with little to no side effects").
46. George Fan, Comment, Anabolic Steroid and Human Growth Hormone Abuse: Creating an Effective and Equitable Ergogenic Drug Policy, 1994 U. CHI. LEGAL F. 439, 442 (citing Herbert A. Haupt, Anabolic Steroids and Growth Hormone, 21 AM. J. SPORTS MED. 468, 469 (1993)).
47. Hartgens & Kuipers, supra note 37, at 518. Drs. Parkinson and Evans report that 89 percent of the users of anabolic androgenic steroids obtain the drugs illegally. Parkinson & Evans, supra note 31, at 649.
48. Hartgens & Kuipers, supra note 37, at 527 ("After drug withdrawal the alterations of body composition fade away slowly, but may be partially present for time periods up to 3 months. However, on the basis of scientific data, the final net result of short-term [androgenicanabolic steroids] administration on body composition seems to be rather small." (footnotes omitted)).
49. Id. at 517.
50. SANDEL, supra note 1, at 43.
51. There are sports in which this not true, or less true, like professional wrestling and auto racing.
52. SANDEL, supra note 1, at 43 (emphasis added).
53. See infra pp. 1738-39.
54. See Jane Gross, Right School for a 4-Year-Old? Find an Adviser, N.Y. TIMES, May 28, 2003, at A1.
55. See, e.g., Rajendrani Mukhopadhyay, Catching the Bad Sports: Don Catlin Has Made a Career of Developing Techniques That Strike Out Athletes Who Use Illicit Performance-Enhancing Drugs, 79 ANALYTIC CHEMISTRY 3963, 3965 (2007) (characterizing performance-enhancing drugs as "sophisticated" and arguing that testing methods must match the heightened level of sophistication);
56. Bob Nightengale, Is HGH Hiding Steroid Use?, USA TODAY, Sept. 12, 2007, at 1C (reporting that the use of human growth hormone helps athletes conceal the use of steroids).
57. See, e.g., Maria Cheng, Scientists Racing to Catch Gene-Dopers, USA TODAY, Dec. 15, 2006, available at http://www.usatoday.com/tech/science/2006-12-15-gene-dopers_x.htm. This may, however, be changing.
58. See id.; Sal Ruibal, A New Tool to Catch Sports Cheats: Test for Gene Doping Could Be Breakthrough, USA TODAY, Dec. 5, 2006, at A1.
59. See supra p. 1736.
60. For more on the economics of sports doping, see generally Kjetil K. Haugen, The Performance-Enhancing Drug Game, 5 J. OF SPORTS ECON. 67 (2004).
61. See SANDEL, supra note 1, at 6-8.
62. See id. at 89.
63. Id. at 86. Here, as throughout the book, Sandel's emphasis is on genetic alteration; but his concern with performance-enhancing measures in sports is not affected by whether the enhancement is brought about by a drug or by altering the athlete's genes.
64. See id. at 27.
65. Id. at 86.
66. Id. at 87.
67. Id. at 89.
68. Id. at 89-92.
69. Id. at 92.
70. Id. at 27, 37-38.
71. See, e.g., RICHARD A. POSNER, CATASTROPHE: RISK AND RESPONSE 12-13 (2004).