Fordham Law


How, and Why, Should Performance-Enhancing Drugs be Kept Out of Sports?

February 19, 2014

Given the difficulty of enforcing them and the acrimony and lawsuits surrounding them, should bans on athletes’ use of performance-enhancing drugs simply be dropped?

That question was posed to a panel of experts at the 18th annual Fordham Sports Law Symposium, sponsored on Feb. 14 by Fordham Law School. In trying to answer it, the three panelists found themselves grappling with fundamental questions of fairness and safety in professional sports.

Moderator Michael Petegorsky kicked off the talk by noting that athletes have powerful incentives to use the drugs—whether it’s amphetamines in endurance sports, anabolic steroids in football, or blood doping in professional cycling—and evade any curbs placed on them.

“Even small differences in stamina, speed, and strength can be the difference between merely qualifying for an event or winning a championship, with millions of dollars and careers hanging in the balance,” said Petegorsky, a Fordham law student and executive vice president of the Fordham Sports Law Forum.

Panelists offered good reasons for restricting the drugs: setting a good example for young people, protecting players from drugs’ dangers, and protecting the integrity of the game.

“If (the game’s integrity) is corroded, and you don’t think that the guy who won the hundred-meter dash is ‘clean’ … then you sort of lose interest in the sport,” said panelist Arthur Caplan, Ph.D., the Drs. William F. and Virginia Connolly Mitty Professor of Bioethics at NYU Langone Medical Center. “It becomes pro wrestling. It’s kind of interesting, but we sort of know it’s fixed. It shifts from a sport to an exhibition.”

But invoking the drugs’ health dangers as a reason for restricting them opens a big conversation about what’s good and bad for players, noted panelist Marc Edelman, a professor at Baruch College’s Zicklin School of Business and an adjunct member of the Fordham School of Law faculty. He gave examples of injured players who were treated with an eye toward getting them back on the field as soon as possible, rather than helping them heal properly.

“If we’re really talking about player safety … then do we need to sit back and look at some of the other things that we consider par for the course for a sport, maybe because they get our favorite players back more quickly?” he said. “Maybe they need to be banned as well, or at least regulated and curtailed in a greater way.”

Panelists were asked who is in a best position to regulate performance-enhancing drugs. Panelist Matthew Pace, a partner at the law firm Arent Fox, gave an example from the world of professional cycling, saying teams implemented their own stringent anti-drug policies in response to blood doping scandals that scared off sponsors.

“The teams have taken back control of this sport,” he said. “Because sponsors will not dump you for losing. They will dump you for doping.”

Edelman raised the idea of a third party getting involved when teams and players’ associations negotiate drug-testing policies as part of collective bargaining. “Perhaps we need some kind of federal legislation to give a third party a voice,” he said.

Pace agreed that society needs to be represented in some way: “To allow the chicken and the fox to agree as to how we’re going to regulate each other doesn’t make a lot of sense to me,” he said. “It doesn’t end up preserving the integrity of the sport.”