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Rethinking the PED Ban: The Rights of Cyborgs

By Jeffrey Standen

I know I'll likely lose my last reader over this. (Goodbye Mom.) But, just like Alex Rodriguez, it's time for me to come clean on performance-enhancing drugs. As more than one email message has mentioned, every time this blog deals with the PED issue, TSLP quickly turns the cannon, aiming at the prosecutors, cops, reporters, parents . . . just about anybody I can think of except the players themselves. I guess there's plenty of blame to go around, and I like to see that everyone gets his comeuppance. Plus I get to dodge the most obvious issue the "steroid era" presents: specifically, should PED's be banned?

My answer is complicated, but the summary is not. I think, maybe, possibly, the answer just might be "no." I think. Very provisionally. Here's why:

1. All kinds of technologies enhance sports performance. My golf clubs have U-shaped grooves. I've fished on boats with depth finders to locate fish. I've launched myself in pole-vault competitions with super-strong and light carbon composite poles. (Yes, being a college professor is nothing but fun.) I could mention huge equipment improvements in tennis strings or archery bows, and changes in discus composition, barbell strength, kayak materials, artificial surfaces, and shoewear. All of these developments, and countless more, make the games easier to play. All of them enhance performance.

2. Let's pause for a moment to consider the fact that these technologies enhance performance. By making performance easier, a technological improvement changes the game. It promotes the shattering of extant performance records. It also changes the skills needed to perform. Athletes who may have mastered the old technology will find their hard-earned comparative advantage wiped away. New technology yields new winners. New technology will also invite more people to play the game, thus crowding our competitions and increasing demand on shared resources. Nice to have some of those easy-turn skis that came out in the past few years; not so nice that I need them to avoid all those new skiers turning right in front of me.

3. It seems too facile to distinguish equipment improvements from biological ones. Some of those improvement technologies are biological, both indirectly and directly. An equipment technology is biological indirectly in the sense that certain biologies can best take advantage of it. Golf's square groove technology, by facilitating and thus lessening the penalty on shots from the rough, gives advantage to the long hitter, who can strike tee balls as hard as possible while suffering minimal penalty from wayward shots. Some technologies are more directly biological, such as prosthetic devices on amputated limbs, laser eye surgery, or hypoxic chambers. These last three are clearly products of advanced technology. In the case of the prosthetic device, like the "Cheetahs" employed by the Olympian Oscar Pistorius, the technology is applied and remains on the body; both lasik surgery, undertaken by golfer Tiger Woods, and hypoxic chambers, used by athletes in many sports, are applied to the body and leave the body altered. All three impart a technological enhancement that is distinctly biological. All three enhance performance.

4. As an ethical matter, biological improvements cannot be separated from other technologies. Most technological improvements at bottom give the athlete improved performance that is in some sense "unearned": the athlete passively sleeps in the hypoxic coccoon or is given a faster swimsuit. Yet the athlete enjoys the improvement nonetheless. Some technologies do require adaptation, and so the practice spent on that adaptation does look like the traditional road to athletic accomplishment. But the practice is only necessary to perfect the adaptation, not to perfect the sport itself. In a sense, the competitors now compete to master the adaptation, not the sport, and thus the victory goes to the swiftest and best adaptor of the new technology. The athlete who could best perform with the old technology, under which conditions performance was more difficult, now loses. Technological change rewards those who best adapt to it.

5. Parimutuel betting on horse races has long been an exception to the widespread prohibition on sports gambling in this country. Why are the horses so lucky? Because state legislatures have long held to the (now antiquated) notion that horses should be encouraged to race (hence the betting as an incentive) so that the horse stock and breeding practices could be improved. Horses were a vital part of the American economy. What's important today? Human health. Indeed this subject may be the salient public policy concern in this still-new century. Sports is more than entertainment. Sports serves a useful purpose in finding and expanding the limits of human performance and health. New technologies and therapies are tried in the world of sports on a regular basis. Why can't athletes, within the walls of safe practices and with full knowledge of known risks, push the limits of the human ability to adapt to and profit from distinctly biological technologies? I know steroids are dangerous. But part of that danger must stem from their illegality. Would their dangers be mitigated in the hands of an experienced medical doctor? Plus the steroids era has come and gone. Few athletes intent on employing biological technologies would today resort to the crudiites and attendant side-effects of steroid use. Why use steroids when you can use . . .

6. Genetic modification. It's coming. What's wrong with this exactly? If a person can in some real sense alter his genetic makeup, then isn't his very person altered? Isn't he competing in as natural a state as he can achieve? Consider the athlete whose genes were modified at infancy. Is that person to be forever banned from sports? What if the genes were altered in utero? What if the parents themselves were altered, and that alteration was passed along to the athlete/child? Are children to be disqualified from birth? Have I asked enough questions?

7. I haven't even mentioned drug testing, which is intrusive, legally problematic, always one step behind, expensive, unavoidably subjective, and doomed to failure. I also haven't mentioned the huge problem with drawing the line between therapy (ethically permitted, to bring the athlete back to normal) and enhancement (ethically not permitted, because it brings the athlete beyond the normal). Andy Pettitte of the New York Yankees did this for me, when he claimed, after being found to have taken steroids, that he only did so to overcome injury and return to the field. Isn't he correct (whether truthful or not)? Why deny an athlete or any person a drug that can safely restore him to health?

8. I think performance enhancements are inevitable, regardless of whether those enhancements involve biological technologies or not. Safety is a concern; but safety usually supplies a reason to regulate, not ban. Fair competition is a concern, but competitive advantages will have to be regulated through restrictions on equipment, not with biological bans. In other words, if Oscar Pistorius is allowed to line up at the start of the 200 wearing his Cheetahs, then I get to be in the next lane revving the engine in my Ford F-150.

9. If cyborgs may compete, will the natural human have no chance? Will bionic legs propel runners and jumpers, laser-aided eyes aim rifles, external lungs sustain endurance? How can biological technology be contained? Honestly I think it can't. I think the future of sport lies in competition classes. We classify competitors now: by gender, by weight, by experience. I think more of the same lies ahead. This splintering of sports may diminish our fan experience, as multiple competitions crowd the airwaves and compete for our attention. More sports may become "minor league" in the pejorative sense. But that's okay. The purpose of sports is competition, not to provide an entertainment spectacle. I could live with enhancements, so to speak.

Full post as published by The Sports Law Professor on February 24, 2009 (boomark / email).