Ignorance, Harm, and the Regulation of Performance-Enhancing Substances
5 Harv. J. Sports & Ent. L. 91 (2014)
57 Pages Posted: 28 May 2014 Last revised: 3 Oct 2015
Date Written: May 28, 2014
There is a disconnect between how legal and sporting authorities, on the one hand, and many elite athletes, on the other, view the use of performance-enhancing substances. While official and popular narratives portray the use of these substances as isolated examples of deviant behavior, to the elite athletes who daily push their bodies beyond societally normal limits of pain and risk, enhancement is oftentimes an accepted part of the job. As a result, efforts to regulate and detect athletes’ use of these substances have consistently captured only a small fraction of the use that exists.
This Article describes the ways in which this disconnect is produced (at least in part) by the regulatory regimes surrounding performance-enhancing substances: Substances are prohibited for athletic use in the absence of solid evidence concerning how they act on healthy bodies, and whether, in many instances, they even enhance performance. This ignorance is perpetuated by prohibition, increasing the use — and the potential for harm from the use — of the very substances that are prohibited.
The Article identifies specific information needed to align the interests of athletes and governing bodies in an effort to reduce the harm from use of these substances. Additionally, it identifies sources from which this needed information may be gathered effectively and ethically. In conclusion, it emphasizes an approach to regulating the use of performance-enhancing substances that is consistent with the values and practices of elite sport, while reducing the risk of unnecessary harm.
Keywords: steroids, performance enhancing drugs, PED, health law, sports law, supplements, athletes, HGH, Controlled Substances Act, Dietary Supplement Health & Education Act, United States Anti-Doping Agency, Federal Drug Administration, World Anti-Doping Agency, risk, information
JEL Classification: I18, K32, K42, D81, L83
Suggested Citation: Suggested Citation