Switzerland: Doping - Legalize It!

Last Updated: 11 April 2018
Article by Thomas Rihm

The ongoing crusade against doping in elite sports has nothing to do with protecting the spirit of sport: it is just superfluous, hypocritical and unconstitutional

Shortly before the start of the Winter Olympics in South Korea, the International Sports Court in Lausanne acquitted around thirty Russian athletes from doping charges. A few days later, the same court could not manage to admit the acquitted athletes to the Games.  Whilst North and South Korea intend to meet for the first time in almost seventy years, the legal, moral and ethical demarcation lines in the global anti-doping struggle seem unalterable.

It is noteworthy that the global antidoping crusade focuses on organized elite sports. This stems from an ancient understanding of sports, according to which humanistic athletes with a healthy body and mind competed against each other. The ancient sports world, however, was very much commercially organized and doping was widespread whereby substances were used which are today banned by the World Anti-Doping Agency (Wada).

The programmatic foundations on which the global antidoping struggle of national and international sports federations are just weak. A prohibited substance is given (i) if  performance enhancing, (ii) if detrimental to the athletes' health or (iii) if violating the sport spirit. Two of these requirements are sufficient for an entry into the Wada lists.  So, if a performance-enhancing drug is not harmful to the athletes' health, only the violation of the sports spirit makes the permitted medicine an outlawed doping substance.

Wada defines the sport spirit with ethics and honesty, courage, character, pleasure and respect for rules and self-respect. However, these honorable objectives are not enough to justify medieval professional bans, physical reporting obligations obviously contrary to Western data protection laws, and the reversal of the burden of proof by ignoring in most cases subjective moments of guilt.

The myth of health furtherance

The criteria for performance increase and health risk are fluffy at best, as it is the definition of the "sport spirit". The discussions led by the antidoping guards, whether nicotine or alcohol are performance-enhancing or performance-reducing, shows the fragility of their arguments. Both substances have a stimulating, relaxing and pain-relieving effect which obviously varies depending on their dosage. A reasonable, performance-enhancing dosage thus means doping, whilst the performance-reducing overdose would free the athletes from any sanctioning. According to Wada, alcohol and its relaxing and pain relieving effects are only prohibited in sports such as motor racing or archery, whilst allowed in most other sport competitions. The global soccer legend George Best, in the go-go years of the Sixties famous for his wild drinking habits, would still be amused.

Since decades, international and national sports federations overlook the fact that elite sports are basically unhealthy if not life-threatening. Hundreds of heavily injured and even dead sports persons per year (e.g. in motorsports, boxing, ice hockey, American football, mountain climbing, extreme skiing, etc.) are telling examples that the international sports world turns a blind eye on these obvious health and life risks. A roster of constantly injured top tennis players such as Nadal, Murray, Djokovic or Wawrinka (and others) show too that elite sports are "per se" unhealthy, so veteran tennis legend Roger Federer is rather the exemption, not the rule.       

A distinction between keeping and enhancing performance is arbitrary. Wada prohibits the consumption of morphine, heroin, hashish or marijuana during the competition. However, these substances are allowed before or after the competition allowing faster physical recovery. Athletes consuming these substances gain a competitive advantage as they are in a position to resume their training more rapidly and therefore train more intensively. This obvious advantage of drug-taking athletes over their sober and clean sports fellows is tacitly accepted by Wada. Equal opportunities amongst athletes is never given if one looks at sports disciplines requiring high tech equipment (alpine skiing, bob racing, etc.) Financially strong top athlete can e.g. afford a high-altitude training, whilst their co-athletes from an emerging country are not allowed to use much cheaper EPO. Equal opportunities in raising the level of red blood cells in athletes' bodies looks different.

The current doping policy cannot be justified any longer because health risks are less and less probable. There is no doubt that totalitarian governments like the former German democratic Republic and their state doping programs produced, amongst others, many life-long injured athletes, but these are long gone times. The global anti-doping crusade started in 1960 after Olympic cyclist Knud Jensen died during a 100 kilometer bike race. Mr. Jensen was actually doped, but the demonstrable cause for his dead was a heat stroke and a heavy crash followed by a massive scull fracture. Despite these proven facts, the IOC made Mr. Knudsen a doping martyr for its global anti-doping mission.       

Doping techniques are much more sophisticated in these days as well informed elite athletes are no longer willing to ruin their health. And even WADA allows on a case-by-case basis the therapeutic use of the substances it otherwise prohibits. A large part of these substances is produced by well-known global pharma companies (and not, as the legend goes, by unscrupulous doctors concocting in their back-yards some questionable cures) and they are also approved for the therapeutic medical market by national health authorities such as the Food and Drug Administration in the United States. But national and international sports associations seem to know better - all this in the name of their self-defined "sports spirit".

The global anti-doping wardens are today confronted with gene and stem cell therapies whose therapeutic effect is beyond doubt. The faster regeneration of injured muscles, joints and tendons or the strengthening of important human organs, however, are critically eyed in the sports world. In other words: permitted therapies widely accepted in the medical world mutate into unauthorized doping in the sports world.

Constitutional right to self-harm

Finally, the constitutional question cannot be avoided. All Western constitutions enshrine the right to physical and mental integrity. At the same time, there is the constitutional freedom to waive these rights. In commercial elite sports, the right to self-harm is furthermore accompanied by the constitutional right to freely chose and exert a profession of your own choice. Even if doping should still put the health of elite sportsmen at risk, it is their choice to so. 

It is quite popular in these days to call for a general drug legalization, this at least under medical supervision. Surprisingly, his liberal call does not encompass the free use of doping. We all know that doping is widespread in the world of work, culture and academia, but also in grassroots sports. In Switzerland, 800,000 managers, bankers, members of the free profession, students, musicians or ballet dancers – just to name a few groups in our high-performance and meritocratic societies - regularly consume prescribed benzodiazepines, whilst many of these individuals will argue that top commercial sports should remain a drug-free zone. Nobody argues that the night-shifting investment banker should be barred from his presentation the morning after just because he or she was doped. All this means applying  hypocritical double standards which is difficult to be tolerated any longer. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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