SBJ/August 29 - September 4, 2005/Opinion

The anti-doping issue: It’s a complex one, so settle in for the long haul

The drug issue in professional sports, it seems, just won’t go away. Congress has tried to point the finger at Bud Selig, Don Fehr and individual players. Howard Bryant focused his finger-pointing on Selig.

But there are no villains. There is just a very complicated problem.

To be sure, Selig and the other commissioners could have acted with greater foresight and force, while Fehr and the other players association directors could have been less legalistic and recalcitrant.

Until recently, players have done no more than respond to market incentives and attempt to improve their performance on the playing field. And they did so at a time when their sports had no, or weak, anti-doping policies and the dangers of performance enhancers were not well known.

The most productive way to grapple with doping in sports is to design new, constructive policies and procedures for moving forward, not to focus on the past. Selig took an important step a few weeks ago when he endorsed both stiffer penalties and implementation by an independent agency.

Rafael Palmeiro told Congress he didn’t, then MLB testing said he did, which only increased the desire of some legislators to create a mandatory anti-doping program for leagues.
Specifically, Selig stated: “We must increase the levels of discipline to 50 games for a first offense, 100 games for a second and a lifetime ban for a third. And, probably most important, we must turn over the administration of our program to an independent authority to, once and for all, end the debate about the transparency of our policy.”

An independent agency, such as the U.S. Anti-Doping Agency, can identify new compounds, ensure proper random testing and guarantee unbiased interpretation of test results and codified imposition of sanctions.

It should be emphasized, however, that even if Selig’s proposal were carried out, the doping problem would not disappear. New molecules can be introduced. Masking agents can be used.

More significantly, each of the major team sports leagues today (MLB, NFL, NBA and NHL) depends solely on a urine sample to detect a player’s use of drugs. Currently there is no urine test for human growth hormone (HGH), an important performance enhancer.

The only test for HGH is with a blood sample, and the prevailing view is that taking blood is unacceptably invasive. While it is certainly more invasive than taking urine, taking blood is not a big deal.

The World Anti-Doping Administration provides for the use of any biological material collected for purposes of doping control, including blood. This code is followed by the International Olympic Committee as well as the Association of Tennis Professionals.

Baseball is funding an effort to find a urine test for HGH. But at present none exists, and it may be years before one is found … if ever.

Without blood testing, any player can simply migrate from identified steroids to HGH with impunity. This is hardly an assurance that a sport is clean.

Until this year, even the blood test for HGH was of dubious accuracy. The scientific community, however, has now embraced a test and sufficient antibodies are being produced to administer it.

Unfortunately, it won’t be a simple matter politically to introduce blood testing. So far, the various sports’ commissioners have not called for it; even if they do, it is likely that the players associations will resist.

Congress has made noises about legislating a mandatory anti-doping program for the leagues, but it is unclear whether it would include blood testing. In any event, the congressional remedy is suspect because of the Bill of Rights.

The Fourth Amendment to the U.S. Constitution was ratified on Dec. 15, 1791. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Thus, any law mandating testing may be in violation of the Fourth Amendment. Such a law would probably be challenged by the union and ultimately found unconstitutional. (There may be ways to legislate indirectly using the commerce clause or public stadium funding as pretexts for intervention.)

Given the traditional union position on random testing, it seems improbable that blood testing could be collectively bargained in the near term.

Civil rights are protected from government action, not private-sector action. It would thus be more likely to pass the Fourth Amendment legal threshold if each sport simply set its own rules of the game.

Employers, for instance, can limit the freedom of speech of their employees within a company, and random drug testing by companies, when job related, has been upheld in certain courts. Unilateral action by a commissioner, however, would still be thwarted by labor law, as commissioners Pete Rozelle and Peter Ueberroth learned in the 1980s.

All of this suggests that there are no easy answers. Indeed, answers will become still more elusive when gene doping becomes a reality several years from now.

It also suggests that we will have to live with some ambiguity — and the periodic bursts of media outrage that ambiguity engenders.

In the meantime, if members of Congress are truly concerned about the effect of professional athlete doping on the habits of America’s youth, then they should think about devoting energy and resources to drug education. This is an area where, I suspect, they will get full cooperation from commissioners, owners and players associations.

Andrew Zimbalist is Robert Woods Professor of Economics at Smith College.

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