A thesis devoted to the study of legal and ethical implications of the use of performance enhancing drugs and new doping practices in sport

Elena Atienza-Macías

University of Deusto, Researcher at the Inter-University Chair in Law and the Human Genome, University of Deusto and University of the Basque Country UPV/EHU.  Bilbao, Spain

We would like to announce the Thesis Presentation and Defense of one of our members: Elena Atienza, concerning The legal and ethical implications of the use of performance enhancing drugs and new doping practices in sport, supervised by Prof. Dr. iur Dr. med. Dr. h. c. mult. Carlos María Romeo Casabona and Prof. Dr. Aitziber Emaldi Cirión. The presentation will be held at the University of Deusto, Bilbao-Spain, in the Graduate Assembly Hall, next 7th of March 2016.

The Chapter II of the mentioned PhD thesis is of particular interest to our international network of doping research. In this Chapter II Elena has dealt with the justification of the legislator´s intervention (or in general the Law) on doping issues. In this sense, she has examined the close relationship between sport and the fundamental principles of law and the values involved in sport with special reference to those values related to the conduct of doping (or improvement), trying to answer questions such as: Is sporting credibility at stake after corrosive doping scandals? What can be said about doping and physical enhancement? What does it mean and involve the fact of increasing athletes' capabilities? Are human enhancement treatments in sport ethically acceptable and legally viable? And if so, where can we put the boundary line between what is legal and what is not? In other words, what should be the criteria for ethical-legal evaluation of these treatments?

On the basis of the observations developed during the thesis, thus the following conclusions can be drawn (concerning Chapter II). The classical view of doping has been to consider it as a “problem”, a “threat”, a “scourge” —and a long etcetera of pejorative terms— that have compromised the sport in this new century. This kind of doping has been historically condemned by athletes, sports officials, government and society. Alongside such classical trend, we have observed and analyzed that in the past decade other approaches have been built: they are questioning the traditional idea of doping and therefore the anti-doping policy adopted by national and international organizations. Hence, concerning the justification of intervention of the Law in this area, we have noticed that from the point of view of fundamental values (from a legal and ethical perspective) the reasons that stigmatize doping need to be carefully reviewed. On this basis, we conclude that there are no compelling reasons to condemn the possibility that, under certain conditions, athletes can use certain mechanisms in order to increase their performance (enhancement treatments).

This thesis has critically analyzed the three central pillars on which any antidoping policy is based, namely: 1) ensuring equal opportunities for competitors; 2) preserving sport values (i.e. fair play); and 3) protecting the athlete´s health. Subsequently the following conclusion can be drawn:

A) It seems clear the justification for the prohibition of doping in order to ensure equal opportunities for competitors and fair play, as long as it occurs a deception in the counterparty when substances or methods that are not permitted according to the current game rules are assumed. However, the approach would be different in a scenario in which other kind of sport could be conceived (such as “sports-entertainment”) and some forms of doping were permitted, so we could not justify the prohibition based on a deception in the counterparty; and

B) The argument of health protection as a basis for antidoping regime can be contested because of the weakness of its justification in two ways: 1) it means adopting a paternalistic attitude and ignoring the principle of athlete’s autonomy and 2) it may turn out to be inconsistent since there are certain sports which are also harmful practices but they are admitted and perfectly regulated