Athlete Drug-Testing, Research Paper Example

When Harold Connelly, the 1956 Olympic hammer-throw champion, testified before a U.S. Senate committee in 1973, he claimed that the majority of athletes he had known “would do anything, and take anything, short of killing themselves to improve athletic performance” (“Sports in society,” 2007). That has apparently been a common attitude among champion athletes, because doping  — the use of performance-enhancing drugs (PEDs) in athletics — has a history dating back to the beginnings of competitive sports itself (“A brief history,” 2010 ). In the 1920s, formal bans were first instituted, but there was little capacity to test for the most popular illegal substances, which at that point were all still “natural”, non-synthesized in a laboratory. However, that situation would soon be changing.

Another historical continuum is that there is still no universal agreement that strict standards of testing are even needed (Savulescu, Foddy & Clayton, 2004), given the awkward fact that spectators and fans in general can legally purchase and consume a range of performance-enhancing supplements at any number of retail outlets while competing athletes can be disqualified for doing the same thing. Many supplements are labeled as food and cannot be regulated by entities such as the U.S. Food and Drug Administration as long as no special claims are made for them, while anabolic steroids in the U.S. are technically Schedule III controlled substances. Each country has its own testing procedures and standards of enforcement, which has caused considerable friction among them in the past (Longman, 2000). Finally, legal standards are different for amateur, college, and professional athletes. (For the pros, drug testing issues will primarily center on contract, consent, and collective bargaining rather than constitutionality.)

We can see that the problem of illegal PEDs isn’t strictly a technical matter of accurate and economical testing. There must be the political will to test athletes in the first place, and to disqualify them (or not) for illegal PED use; and there must be a reasonably uniform set of laws to specifically define such tests constitutionally and statutorily. Only then must there be a mechanism to keep track of the latest drugs and test uniformly for them. But we can expect that last requirement to get harder and harder to satisfy. As the technology to detect PEDs advances, they have become more difficult to detect because they have gotten better and better at mimicking the body’s own natural high-intensity metabolism. Eventually, there may be some PEDs undetectable except through increasingly expensive and invasive testing procedures, and perhaps not even then.  In this paper I will discuss how the International Olympic Committee (IOC); the World Anti-Doping Agency (WADA); the National Collegiate Athletic Association (NCAA); and (collectively) the National Football League (NFL), the National Basketball Association (NBA), the National Hockey League (NHL), and Major League Baseball (MLB) try to accomplish all this in a legal, economical, and practical way.

It should be born in mind that these organizations do not each have their own labs full of white-coated technicians researching possible new PEDs and new ways to test for them. For example, the IOC, as of 2000, had contracted with the University of Southern California at Los Angeles (UCLA) to have its drug testing done there. The World Anti Doping Agency has accredited over thirty independent laboratories around the world. And just as the profit motive is ever present even in Olympic competitions through the winning of valuable endorsements and later professional competition (as in boxing), so the profit-motive is ever present in drug testing. The company (or university, or the university’s leading scientist) that develops a popular test will earn money through patent rights for that test, and through sheer visibility. In 2012’s Summer Olympics, the pharmaceutical conglomerate GlaxoSmithKline will be a participant in drug testing by providing the clinical equipment and facilities for scientists from the King’s College Drug Control Centre. It is a $30 million, fully state-of-the-art laboratory near Olympic Park in east London and is fully accredited by WADA. That facility is a target of a lively competition among drug companies eager to market their own unique drug-detection tests (Frick, 2011).

The IOC

The International Olympic Commission (IOC) is the representative governing entity for the most serious and competitive amateur (and, in some countries, “amateur”) sports around the world. Possibly because of the Olympic ideal (if not always the reality) of amateurism, the IOC has been the most active sports organization to fight doping. It began testing in 1968 in Grenoble, France, during the Winter Olympics. It tested forty Olympic athletes. Since then, the Olympic Games has been the torch-bearer for drug testing, but as mentioned above, enforcement is local, being left to each country’s National Olympic Committee (NOC) and the specific national governing body (NGB) for each Olympic sport. The result is something of a mess: the regulations governing PED testing undergo more or less ongoing change to reflect evolving social consensus and new PEDs and new ways to find them. The number of programs devoted to PED control is increasing, and the combination of these variables results in inconsistency and confusion. Some organizations are either unable or unwilling to interpret their own rules consistently, opting instead to react to a lawsuit or other crisis on a more or less ad hoc basis.

The IOC’s basic procedure, that of collecting a testable sample of bodily fluid (blood or urine) follows a strict regimen logically akin to Koch’s Postulates for determining the presence of an infectious agent. It may be considered something of a template for athletic drug testing in general: the testing athlete personally divides the sample into two separate containers, one of which is randomly pre-labeled with an A, and the other labeled B.  In the event a banned drug is found in the A sample, then the B will be tested to confirm the first result. The potential PEDs such traditional tests have looked for have expanded so steadily, and the technology for finding them takes such time to develop,  that the testing process is now evolving into what is called a Biological Passport. This approach carefully measures various specific markers of human metabolism unique to any given individual (as in the ratio of certain chemicals, such as testosterone, to others), virtually guaranteeing that the results can’t be traded among test-takers. By establishing certain natural benchmarks specific to the athlete, a baseline is provided against which later test-results can be measured. In short, a biometric profile is created that will be changed by certain biological and chemical drug interactions. If an athlete has taken a PED in anticipation of a particular event, then any relevant metabolic differences will stand out.  Critically, a biological passport also holds the promise that any future varieties of popular drugs will be detectable. This program is being used in conjunction with the Olympics Whereabouts program, which requires that competing athletes be available to be tested within a 60-minute time frame after they are randomly selected and located by IOC agents. As might be imagined, the Whereabouts program has been highly controversial (Frick, 2011) as a potential violation of the rights to privacy and (in the U.S.) the Constitution’s 4^th and 5^th amendment guarantees against unreasonable search and seizure and violation of due process. Hopes aside, increasingly sophisticated PEDs may eventually moot both the Biological Passport and Whereabouts.

The NCAA

Since 1986 the NCAA has had its own drug-testing policy. It is reported to test fully for street drugs and PEDS. However, collegiate athletics fall into another category of sport than the Olympics for drug testing purposes. Because they are performed in both public and private schools, the issue of what is known in law as state actors comes into play. The term describes someone or something representing a government in the performance of certain duties. In the U.S., this power subjects state actors to adhere to the U.S. Bill of Rights, particularly the 4th and 5th Amendments as noted above. To help get around the issue of such constitutional protections, intercollegiate student athletes at private colleges (which, although not state actors, often follow baseline constitutional protections, thus acknowledging that they are, in effect, implied state schools) sign consent forms before they represent their schools in athletic events.  Currently under law the NCAA itself is not actually considered to be a state actor, although the question has not yet been fully settled by the courts. The IOC has not been considered a state actor in the U.S. since 1988 (Koller, 2008).

Professional Leagues

Professional sports are still another category for drug testing. Here the important factor isn’t being or not being a state actor, but rather collective-bargaining agreements, as well as whatever is included in an individual’s contract, itself the product of negotiation between the athlete’s agent and the team’s management. There is another important distinction: the goal of drug-testing in professional sports is to discover who needs treatment, rather than arbitrary dismissal and disqualification, as is the case in the Olympics. The reason is not hard to understand: imagine having to dismiss a multimillion-dollar player because traces of marijuana (medical or otherwise) were found in his urine! The ticket-buying public wouldn’t tolerate it. Basically, we can say that the goal is to prevent another Len Bias, the former University of Maryland basketball player who died of a heart attack in 1986 shortly after being selected by the Boston Celtics. (Cocaine was later found in his blood and the school later was revealed to have known of his drug habits.) This incident may be said to have started a new phase of drug testing in athletics, and indeed given the long-running War on Drugs a shot in the arm.

The jurisdictional uncertainties found in Olympic testing is mirrored in professional sports. There is no one standard that applies to the MLB, NHL, NFL and NBA. Treatments and punishments differ between them, and testing laboratories are not necessarily shared. MLB does have its Joint Drug Prevention and Treatment Program (JDPTP), providing for uniformity within professional baseball. The differences between its representational policy and that of the IOC are striking, primarily in that testing is not done randomly, but rather based on reasonable cause as determined by the collective members of the JDPTP’s Health Policy Advisory Committee (HPAC). The retroactive time period for such evidence being submitted is one year. Upon the decision to test a team member, that individual must undergo testing within 48 hours. However, an appeal can be made to the HPAC within that 48 hours. A decision by the HPAC must be made within 48 hours of the registration of the appeal. The decision to test or not test must be made within 24 hours of receipt of the appeal. If the decision is to test, then the test must be made within another full 48 hours. Thus a maximum of 168 hours may pass between notification to take a drug test, and the actual taking of the test. Depending on the drug involved that may be plenty of time, or it might not be enough. Increasingly, it will probably be plenty of time.

The example of major-league ballplayer Manny Ramirez is illustrative of the pro system. In 2009 the New York Times reported that Ramirez had first tested positive for a banned drug in 2003 (along with a hundred other players). After failing a drug test while playing for the Dodgers in 2009, he was given a 100-game suspension, but permitted to use the facilities for training, as well as play in minor league games. In 2011, while playing for the Tampa Bay Rays, his A sample tested positive. Upon his B sample failing as well, Ramirez retired. But later that year he reconsidered the matter, and applied to be reinstated. He was, and for good measure his 100-game suspension reduced to 50 games, an outcome that no doubt was not lost on his teammates.

The Future: Faster, Cheaper, Smaller, Better

Athlete drug testing will follow those standard four parameters in the field of technology. But for that to fully happen, drug testing may have to expand in the non-athletic world as well. That is likely, given that the PEDs favored by athletes will be useful (or at least enjoyable) to some extent among non-athletes. Currently, although drug testing has become an increasingly powerful and pervasive part of the economy and daily life, it may only have just begun. As in the athletic world, the bar to faster cheaper smaller better drug tests is the issue of civil rights. In the case of the Olympics Whereabouts program, the issue of overly intrusive tracking of athletes may hinge on the pervasive use of GPS tracking in cell phones. By carrying a cell phone, an athlete may be deemed to have agreed to be available for testing. But that’s a small matter.

In spite of civil rights objections, drug testing may inevitably become ubiquitous in non-athletic daily life: employers may begin mandating more of them, both for job applicants and staff, if their own insurance companies begin offering discounts for requiring them. Those discounts may become effectively mandatory as part of the federal government’s long-term goal of increasing health insurance among populations traditionally lacking such coverage. Failure to pass such a test could provide insurance companies and employers with the legal means to deny employment and coverage to the least desired demographic groups, which would include, by definition, anyone who fails a drug test. Certain food supplements currently banned for Olympic athletes may also be banned for anyone else taking such tests. As more substances become effectively illegal, the War on Drugs will have spread from the street to the arena to the office to home, following the newest PEDs as they are invented, passed around, and, eventually, tested for: faster cheaper smaller better tests for faster cheaper smaller better drugs.

Plus ça change, plus c’est la même chose. Drugs and asterisks are here to stay.

References

A brief history of anti-doping. (2010 , June). Retrieved from http://www.wada-ama.org/en/About-WADA/History/A-Brief-History-of-Anti-Doping/

Frick, L. (2011, August 4). Ultra-fast analysis of benzodiazepines in human urine using dilute and shoot methodology and spe-ms/ms. Retrieved from http://www.selectscience.net/olympics-exclusive/application-note/?&apptypeID=1,2,3,4&keyword=Agilent

Koller, D. (2008). Frozen in time: The state action doctrine’s application to amateur sports. St. John’s Law Review, 82(1), 183. Retrieved from http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1099&context=lawreview

Longman, J. (2000, September 27). Drug testing in u.s. comes under fire from olympic officials. Retrieved from http://www.nytimes.com/learning/teachers/featured_ articles/20000927wednesday.html

Savulescu, J., Foddy, B., & Clayton, M. (2004). Why we should allow performance enhancing drugs in sport. Retrieved from http://bjsm.bmj.com/content/38/6/666.full

Sports in society. (2007). Retrieved from http://highered.mcgraw-hill.com/sites/0073047279/student_view0/chapter6/related_readings.html