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The spirit of sport: the case for criminalisation of
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Sumner, Claire (2017). The spirit of sport: the case for criminalisation of doping in the UK. The International Sports
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ARTICLE
The spirit of sport: the case for criminalisation of doping
in the UK
Claire Sumner
1
Published online: 3 February 2017
The Author(s) 2016. This article is published with open access at Springerlink.com
Abstract This article examines public perceptions of
doping in sport, critically evaluates the effectiveness of
current anti-doping sanctions and proposes the criminali-
sation of doping in sport in the UK as part of a growing
global movement towards such criminalisation at national
level. Criminalising doping is advanced on two main
grounds: as a stigmatic deterrent and as a form of
retributive punishment enforced through the criminal jus-
tice system. The ‘spirit of sport’ defined by the World Anti-
Doping Agency (WADA) as being based on the values of
ethics, health and fair-play is identified as being under-
mined by the ineffectiveness of existing anti-doping policy
in the current climate of doping revelations, and is assessed
as relevant to public perceptions and the future of sport as a
whole. The harm-reductionist approach permitting the use
of certain performance enhancing drugs (PEDs) is con-
sidered as an alternative to anti-doping, taking into account
athlete psychology, the problems encountered in containing
doping in sport through anti-doping measures and the
effect of these difficulties on the ‘spirit of sport’. This
approach is dismissed in favour of criminalising doping in
sport based on the offence of fraud. It will be argued that
the criminalisation of doping could act as a greater deter-
rent than existing sanctions imposed by International
Federations, and, when used in conjunction with those
sanctions, will raise the overall ‘price’ of doping. The
revelations of corruption within the existing system of self-
governance within sport have contributed to a disbelieving
public and it will be argued that the criminalisation of
doping in sport could assist in satisfying the public that
justice is being done and in turn achieve greater belief in
the truth of athletic performances.
Keywords Spirit of sport Doping Criminalisation
1 Introduction
When Chris Froome won the Tour de France in 2015 he
became one of only a handful of cyclists to win the title
more than once and his success was something to be cel-
ebrated. Sports fans watching wanted to rejoice in his
magnificent achievement. However, his victory was over-
shadowed by stories in the press implying his win was not a
clean win, but one assisted by doping.
1
Despite Froome’s
efforts to assuage the press and to persuade the public of
his honesty,
2
there is still the perception, for some, that his
successes are super-human, and cannot be achieved with-
out cheating in some shape or form. What has to be done
for the public to get back it’s faith in the truth of the
performances it sees? What will it take for us to get back
our belief in the ‘spirit of sport’?
WADA define the ‘spirit of sport’ as
‘The essence of Olympism, the pursuit of human
excellence, through the dedicated perfection of each
person’s natural talents. It is how we play true.’
The WADA Code goes on to state that ‘The spirit of
sport is the celebration of the human spirit, body and
& Claire Sumner
c.m.sumner@open.ac.uk
1
Open University Law School, Milton Keynes, UK
1
Lichfield (2015). http://www.independent.co.uk/sport/cycling/tour-
de-france-2015-doping-claims-dampen-the-mood-as-chris-froome-tri
umphs-10417336.html.
2
Windsor (2015). http://www.cyclingweekly.co.uk/news/latest-
news/chris-froome-described-as-close-to-human-peak-after-physio
logical-data-release-202644.
123
Int Sports Law J (2017) 16:217–227
DOI 10.1007/s40318-016-0103-2
mind’. This is reflected in the values we find in and through
sport including: ethics, fair play and honesty; health;
excellence in performance and fun and joy.
3
It will be argued that the current system of anti-doping
sanctions are ineffective in efficiently reducing doping and
that this results in the public’s loss of faith in the perfor-
mances it sees and the loss of the ‘spirit of sport’. In a year
when Russia are banned from international athletics com-
petition and a former No 1 ladies tennis player is found to
have doped, is the current anti-doping system doing enough
to alter the public’s perception that doping is rife?
4,5
Car-
olan considers that ‘traditional notions of sporting excel-
lence’ might perhaps already be damaged permanently,
6
but it will be argued that criminalisation of doping could
change this perception by providing retributive justice and
satisfying the public that athletes have had their ‘just
deserts’.
The biggest losers in doping are those that perform
clean. The WADA Code protects athletes ‘fundamental
right to participate in doping free sport’,
7
but it is argued
that the Code is currently ineffective in fulfilling this
obligation. Nicole Sapstead of UK Anti-Doping (UKAD)
has asked the question ‘What has happened to sport?’ If
doping is allowed to continue at its current level, she
predicts that the public will stop watching. In her opinion,
the performances of clean athletes are undermined by
doping and cynicism breeds quickly.
8
This article will
address what the law can do to get back the ‘spirit of sport’
in its broadest sense and will advocate criminalisation not
as an alternative to the current system, but as an additional
weapon with which to combat doping in sport. Creating a
criminal offence could operate as a deterrent and also
satisfy the public that justice has been and is being done
and therefore alter the public’s perception of the veracity of
sporting performance.
For the purposes of this article, doping should be read to
mean violations of Articles 2.1–2.6 of the WADA Code,
which relate to the presence of prohibited substances in an
athlete’s sample, the use or the possession of a prohibited
substance or method, evading sample collection, where-
abouts failures and tampering with samples. Prohibited
associations are excluded from doping for the purposes of
this article as this violation would not fall within the fraud
model which is proposed. Trafficking is also excluded from
the definition of doping for the purposes of this article and
it will be proposed that trafficking should form the basis of
a different offence to doping by the athlete.
For the purposes of this article, harm is intended to mean
detrimental to health. Criminalisation of all forms of dop-
ing, as defined for the purposes of this article, is proposed
based on the fraud model. Under the fraud model an athlete
caught doping would commit a fraud by falsely repre-
senting that they were competing clean with the intention
to make a financial gain for themselves in the form of prize
money or sponsorship.
Criminalisation is advanced in a UK context because
supranational measures would be onerous and unlikely to
lead to any short-term change. Whilst it is not proposed
that there be a formal harmonisation of state-led anti-
doping measures amongst different states, this advance-
ment is placed within the context of a broader global trend
towards the criminalisation of doping in sport. There is
value in a piecemeal approach to the criminalisation of
doping. As more countries create criminal offences for
doping, a de facto supranational law is formed.
The arguments for legalising the use of PEDs will be
considered first (the ‘anti-anti-doping’ stance) as the
alternative to retaining the current stance (the ‘pro-anti-
doping’ stance) and by analysing the effectiveness of cur-
rent sanctions, using this debate as a backdrop to the pro-
posal for criminalisation of doping.
2 Anti-anti-doping
2.1 Psychology
The extraordinary psychology of athletes is cited by
Savulescu et al. as justification for permitting the use of
PEDs;
9
however, it will be argued that current anti-doping
policy does not do enough to alter this psychology and
deter athletes from doping. It is submitted that the psy-
chology of athletes combined with the financial rewards for
success guarantee that doping will always be a chosen path
for some and that new methods and substances will always
be sought out to achieve success. The results of Goldman’s
infamous Death in the Locker room survey revealed that
over half of interviewed athletes would be prepared to die
after five years if taking a banned substance would ensure
success.
10
These results were tested with biannual surveys
over a 10-year period and the results were the same.
11
The
2007 WADA commissioned literature review on attitudes
to drugs in sport reports that this psychology prevails in, for
3
WADA Code (2015), p. 14.
4
Gibson (2016b). https://www.theguardian.com/sport/2016/jun/17/
russia-rio-olympics-ban-doping-iaaf-sebastian-coe.
5
Mitchell (2016). https://www.theguardian.com/sport/2016/jun/08/
maria-sharapova-banned-two-years-failing-drugs-test-meldonium.
6
Carolan (2006), p. 30.
7
WADA Code (2015), p. 11.
8
Tackling Doping in Sport conference, London, April 2016.
9
Savulescu et al. (2004), p. 666.
10
Goldman et al. (1984).
11
Goldman and Klatz (1992).
218 Int Sports Law J (2017) 16:217–227
123
example, college athletes, where 34% of all male hockey
players admitted that they would take anabolic steroids if it
would help them to play in the National Hockey League.
12
Backhouse et al. report that amongst elite athletes, rea-
sons for doping include desire to win and financial gain,
and admit that, as long as testing fails to be 100% effective
in identifying drug users, the rewards for sporting success
are such that this deficiency in testing will be exploited.
Haugen goes even further in his game theoretic model,
predicting that unless the likelihood of athletes being
caught doping is raised to unrealistically high levels, or the
payoffs for winning are reduced to unrealistically low
levels, all athletes could be predicted to cheat.
13
This is a
view echoed by professional athletes. Matthew Pinsent, the
former Olympic rower has said ‘there is a simple reason
why rowers don’t cheat and that is that the rewards for
winning simply aren’t that great’.
14
Anderson extends this idea by linking the doping pres-
sures felt by athletes to the inclusion of sport in the
entertainment industry. He points out that the public want
‘world record times…or…unprecedented acts of endur-
ance’ and concludes that ‘athletes are vulnerable to these
(our) demands’.
15
Such demands lead to the use of new performance
enhancements which may be undetectable. The Cycling
Independent Reform Commission (CIRC) report on the use
of drugs in professional cycling revealed that despite the
use of blood passports, new methods of micro-dosing of
EPO are suspected,
16
and this is managed in a sophisticated
way by those outside the cycling team itself.
17
Athletes
continue to use performance enhancing substances some of
which are highly experimental until they too are banned.
18
Meldonium was added to the WADA prohibited list on 1st
January 2016 as it was deemed to have performance
enhancing capacities. Athletes were seemingly very aware
of this as a 2015 study revealed that 17% of Russian ath-
letes tested positive for meldonium, with a global study
finding positive readings for 2.2% of athletes.
19
It will be argued that the current system of penalties
imposed by International Federations, based on the WADA
Code, do not do enough to deter athletes from doping and
the potential rewards outweigh the penalties imposed if
caught. There is little that can be done to alter the size of
financial rewards available to successful athletes without
changing the entire economics of sport, but it will be
argued that criminalisation of doping could act as a better
deterrent by raising the ‘price’ of doping if caught, and
help combat the prevalent athlete psychology.
2.2 Legalise doping
Given the difficulties in detecting doping,
20
and the psy-
chology of the athlete, Savulescu et al. argue that certain
forms of doping should be legalised, provided they do not
expose an athlete to risks which are excessive.
21
A harm-
reductionist approach is proposed by Kayser et al. which
would permit the use of certain PEDs.
22
This view is
supported by Anderson.
23
Harm reductionism proposes the
legalisation of certain forms of doping in order to minimise
the possible harm resulting from such conduct.
Savulescu et al. suggest that allowing doping would
meet the values characterising the ‘spirit of sport’. They
advocate that health can be monitored properly and sub-
stances regulated if doping is legalised,
24
although they are
not specific about who would carry out such monitoring.
Kayser et al. support this view accepting that such an
approach would not be risk free, but would avoid the use of
untested drugs and provide a medically supervised envi-
ronment for doping.
25
Countering arguments that doping gives an unfair
advantage Savulescu et al. suggest that permitting doping
would allow a more level playing field.
26
This is a view
shared by Kayser et al. who ‘find the anchoring of today’s
anti-doping regulations in the notion of fair-play to be
misguided’ pointing out that an athlete who benefits from
medical supervision and a ‘sophisticated technological
environment’ comes ‘as close as possible to doping’ (2007,
p. 3).
27
Carolan, in discussion on policy justifications for
anti-doping, also notes difficulties in reconciling inconsis-
tencies in anti-doping where the use of nitrogen tents is
permissible but the use of EPO, which provides exactly the
same effect, is not.
28
Anderson too speaks of the ‘ethical
difficulties’ involved where the lines between what is
12
Backhouse et al. (2006), p. 32.
13
Haugen (2004), p. 73.
14
Pinsent (2009), p. 288.
15
Anderson (2013), p. 144.
16
CIRC report (2015) p. 57.
17
CIRC report (2015) p. 65.
18
CIRC (2015) p. 62.
19
Revealed in a documentary by Hajo Seppel in 2016 referred to
online at http://www.theguardian.com/sport/2016/mar/08/meldonium-
maria-sharapova-failed-drugs-test (last accessed 25 April 2016).
20
See https://wada-main-prod.s3.amazonaws.com/resources/files/
2013-05-12-Lack-of-effectiveness-of-testing-WG-Report-Final.pdf
(last accessed on 25 April 2016).
21
Ibid., p. 670.
22
Kayser et al. (2007), p. 1.
23
Ibid., p. 151.
24
Ibid., p. 668.
25
Ibid., p. 5.
26
Ibid., p. 668.
27
Ibid., p. 2–3.
28
Carolan (2006), p. 15.
Int Sports Law J (2017) 16:217–227 219
123
permitted and what is proscribed become so blurred that
any distinction is unjustifiable.
29
Anderson supports the view that the harm-reductionist
approach as advocated by Savulescu–Kayser could work to
balance the ‘inequities of the current system’ brought about
through natural biological advantages such as large lung
capacity and environmental benefits such as living at alti-
tude.
30
Carolan goes further and contends that ‘equality is
just as capable—in theory at least—of supporting a level-
ling down of standards by the legalization of performance
enhancing drugs, as authorizing the existence of a strict
anti-doping regime.’
31
As for adherence to rules, Savulescu et al. suggest that
we should draft rules which athletes are prepared to obey
which in turn will give credence to the sport.
32
They also
suggest that we should marvel at the human desire to
improve and not battle against it since ‘performance
enhancement is not against the spirit of sport—it is the
spirit of sport—to choose to be better is human’.
33
In a
similar vein, Carolan advocates that the ‘pursuit of better
methods of performance improvement is…the very object
of sport itself.’
34
Anderson argues that the cost and ineffectiveness of
current anti-doping justifies a more pragmatic approach
based on ‘libertarian’ paternalism, suggesting that the
funds used in anti-doping might be better spent elsewhere
in developing sport and he believes that the ineffectiveness
of anti-doping has a ‘negative impact on both athlete’s
behaviour and the sporting public’s attitude to doping’.
35
This impact on the sporting public’s attitude to doping is
agreed, but can be used as an argument to support crimi-
nalisation of doping rather than as justification for allowing
it. Anderson also argues quite powerfully that the ‘virus’ of
doping could be ‘better contained’ if a harm reductionist-
approach was used as a ‘vaccine’ by re-educating and
providing ‘knowledge-based compliance’.
36
Education
based on knowledge is an important part of tackling doping
in sport but rather than adopting this as part of a harm-
reductionist approach to doping, education should be used
in conjunction with anti-doping policy, including crimi-
nalisation, attacking the consequences of doping and the
cause.
3 Pro-anti-doping
It is argued that an anti-doping stance must be maintained
to uphold the ‘spirit of sport’ and to support the core values
which the WADA Code defines as underpinning that spirit:
ethics and health.
3.1 Ethics
Since not all participants will dope, doping creates an
unfair advantage and it is unethical to cheat. O’Leary says
‘‘victory is inextricably linked to rules….successful ath-
letes are afforded a unique place in society. Sporting heroes
are society’s heroes. By heralding the success of the drugs-
assisted athlete we are in danger of undermining society
itself….sporting competition fails to be a test of persons
and therefore, drug-taking is ethically indefensible.’’
37
Whilst Kayser et al. suggest that the harm reductionist
approach of supervised doping would provide greater
equality,
38
the author’s view is that this model still allows
scope for inequality based on financial ability to obtain the
most effective PEDs. Further, given athlete psychology, it
is argued that some will always exceed the boundaries of
what is permitted under the harm-reductionist model. Also
of ethical concern is a point identified by Carolan, that
legalisation of PEDs could force clean athletes to dope and
risk their health for sporting success.
39
3.2 Ethics and health—youth and amateur sport
If the harm reductionist approach is taken and doping is
permitted, Kayser et al. propose the ‘development of an
anabolic substance or dosage scheme designed and adapted
specifically for athletes.’
40
At what age would children be
allowed to dope? Savulescu et al. suggest that children
should be banned from competitive sport to prevent the
ethical dilemma arising.
41
This is clearly impractical as no
country will be able to develop elite athletes if youth
participants are kept out of competitive sports. In our
current system, youth participation in sport is competitive
and leads to professional membership in early adulthood or
before,
42
yet, generally, children must be aged 16 or over to
29
Ibid., p. 143.
30
Ibid., p. 151–152.
31
Ibid., p. 9.
32
Ibid., p. 669.
33
Ibid., p. 670.
34
Ibid., p. 11.
35
Ibis., p. 141–142.
36
Ibid., p. 149–154.
37
O’Leary (1998), p. 164–166.
38
Ibid., p. 3.
39
Ibid., p. 27.
40
Ibid., p. 4.
41
Ibid., p. 669.
42
Gymnasts can compete in world championships from age 15 for
certain disciplines. http://www.fig-gymnastics.com/site/page/
view?id=679 (last accessed 25 April 2016).
220 Int Sports Law J (2017) 16:217–227
123