Fair is Fair, Or Is It?: A Moral Consideration of the Doping Wars in American Sport

Abstract I argue that the recent major shift in anti-doping strategy by the United States Anti-Doping Agency (USADA), which cracks down on athletes who dope by, among other things, trying to build criminal cases against them and by lowering the standard of evidence required to convict dopers from 'beyond a reasonable doubt' to 'comfortable satisfaction', is morally problematic because it treats athletes unfairly. That is not to say that the efforts of USADA to curb doping in sport is itself unjustified, for athletes who dope do indeed violate the principle of fair play – a principle vital to the integrity of all sport. Rather, my argument is that the new anti-doping measures pursued by these athletic agencies go too far and are themselves unfair in the classical sense that they treat similar cases in a dissimilar way. Notes 1. CitationBamberger and Yaeger, 'Over the Edge', 62. 2. CitationButcher and Schneider, 'Fair Play as Respect for the Game', 21–48. 3. CitationFletcher, 'The Case for Linguistic Defense', 331–2. 4. CitationDyerson, Making the American Team: Sport, Culture, and The Olympic Experience , 11. 5. My account of this first version of fairness as reciprocity is primarily drawn from CitationJohn Rawls's seminal essay, 'Justice as Reciprocity', 190–224. I should also note in this regard that, for Rawls, justice and fairness are closely related concepts that both share the central feature of reciprocity. What distinguishes them for Rawls is that whereas justice covers practices that individuals have no option of whether to engage in them or not, fairness covers practices, what he in other places calls voluntary associations, where individuals always have an option to engage in them or not. But this distinction is not as firm as it might at first seem, since once one does engage in an optional practice like sport and so makes a firm commitment to abide by its rules, one doesn't have the option to violate those rules or the special responsibilities to others that follow from their acceptance of them. More about this later. 6. Rawls, 'Justice as Reciprocity', 191. 7. Rawls, 'Justice as Reciprocity', 193. 8. CitationDworkin, Taking Rights Seriously , 227. For an excellent analysis of Dworkin's distinction as it applies to sport see CitationSimon, Fair Play: The Ethics of Sport , 31–4. 9. Rawls, 'Justice as Reciprocity', 202. 10. My argument in this paragraph borrows liberally from Samuel Scheffler's illuminating essay, 'Projects, Relationships, and Reasons', 247–69. 11. My argument in this paragraph borrows liberally from Samuel Scheffler's illuminating essay, 'Projects, Relationships, and Reasons', 247–69, 249. 12. Rawls, 'Justice as Reciprocity', 208. 13. Rawls, 'Justice as Reciprocity', 210. 14. Rawls, 'Justice as Reciprocity', 209. 15. The account of virtue as an 'acquired human quality' and of a minimalist account of such virtues as comprising justice, courage and honesty, comes from Alasdair CitationMacIntyre's important book, After Virtue , 191. 16. CitationScheffler, 'Projects, Relationships, and Reasons', 247. 17. CitationSuits, The Grasshopper: Games, Life and Utopia , 29–30. 18. As quoted in Juliet Macur, 'Seeking Her Way Out of Infamy', New York Times (10 Aug. 2004), C17–8. 19. Carl Elliot, 'This Is Your Country on Drugs', New York Times (14 Dec. 2004), A31. 20. As quoted in CitationHolley, 'Breaking the Rules When Others Do', 160. 21. As Holley pointedly shows however, making some such guess is crucial if we wish to wield Kavka's distinction between 'offensive' and 'defensive' rule violations to good effect. That is because what counts as an offensive or defensive rule violation itself depends on the extent of non-compliance in question. As he writes, 'If I shoplift when 30% of other shoppers are doing so, am I an offensive shoplifter or a defensive shoplifter?' Holley, 'Breaking the Rules When Others Do', 161. 22. Holley, 'Breaking the Rules When Others Do', 161. 23. Bamberger and Yaeger, 'Over the Edge', 64. 24. Steven Ungerleider and Gary Wadler, 'A New World Order in Elite Sports', New York Times (20 June 2004), 7. 25. Steven Ungeleider and Gary Wadler, 'A New World Order in Elite Sports', New York Times (20 June 2004), 7. 26. Liz Robbins, 'Lower Standards Angers Athletes and Lawyers', New York Times (20 June 2004), C23. 27. Jere Longman and Ford Fressenden, 'Rivals Turn to Tattling in Steroids Case Involving Top Athletes', New York Times (11 April 2004), 4. 28. Jere Longman, 'In Conte's "20/20" Remarks, Legal Experts See a Risk', New York Times, (11 Dec. 2004), B20. 29. Jere Longman, 'In Conte's "20/20" Remarks, Legal Experts See a Risk', New York Times, (11 Dec. 2004), B20. Despite Conte's outsized ego, and the strong possibility that he has not the slightest moral interest in cleaning up sport, in other words, that he is a moral scoundrel not to be trusted, the USADA has expressed great interest in talking to him. Their reason, which comes directly out of the mouth of their director of legal affairs, Travis Tygart, is because 'He could provide additional information regarding athletes and others involved in it'. Of course, I'm not surprised they want to talk to Conte, since he is, after all, a well-placed and evidently loose-lipped snitch. But the fact that they seem so eager to talk with an admitted felon like Conte just goes to show how little of their crackdown on doping has to do with moral efforts to reform this practice and how much it has to do with establishing the criminal culpability of suspected dopers. 30. My claim that doping is essentially linked to a professional conception of sport is a somewhat controversial one. For an alternative view, see CitationBrown, 'Paternalism, Drugs, and the Nature of Sport', 130–41. Brown argues that doping can also find a home, and an ethically justified one, in an experimental conception of sport that puts the entire onus on seeing what individuals can accomplish when they use every technical means at their disposal. I don't think he is right about this, but trying to make a case for this point would take me too far afield for present purposes. 31. My analysis here, as before, is indebted especially to Chapter 3 of Suit's book, The Grasshopper: Games, Life and Utopia. 32. CitationSimon, 'Good Competition and Drug Enhanced Sport', 126. 33. CitationSandel, 'The Case Against Perfection', 54. 34. Sandel, 'The Case Against Perfection' Additional informationNotes on contributorsWilliam J. Morgan Professor in Sport Humanities and Director of the Center for Sport, Citizenship and Society in the John Glenn Institute of Public Policy, Ohio State University