Doping and Health in Sport: Concept and Essence (A.A. Mokhov, V.V. Blazheev, O.A. Shevchenko, журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017)

Doping and Health in Sport: Concept and Essence

A.A. Mokhov,

Doctor of Science (Law), Professor of the Department

of Business and Corporate Law of Kutafin Moscow

State Law University (MSAL),

"Kutafin Moscow State Law University (MSAL),

Moscow, Russia

V.V. Blazheev,

Ph.D. in Law, Professor, Kutafin Moscow State

Law University (MSAL), Honored Lawyer of the

Russian Federation, Honored Worker of Higher Education

and Science and Technology of the Russian Federation,

"Kutafin Moscow State Law University (MSAL),

Moscow, Russia

O.A. Shevchenko,

Doctor of Science (Law), Professor of the Department

of Labor Law and Social Security Law of Kutafin

Moscow State Law University (MSAL),

Kutafin Moscow State Law University (MSAL),

Moscow, Russia

Журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017, р. 40-49.

The paper investigates the basic approaches to the understanding of doping as a category. The authors clarify the concept of doping based on the proposed criteria.

To qualify agents, substances, methods, etc. as doping in the prescribed manner, two criteria are needed and are sufficient: a target criterion (athletic performance improvement) and a social criterion (conflict with the principles and the spirit of sport). Such criteria allow competent authorities and persons (experts) to decide in the prescribed manner whether to include or not a certain agent, substance, etc. into the relevant Restrictive List. A legal criterion (availability of an agent, substance, or method in the list of prohibited ones) is formal. It is crucial for the sports and law enforcement practice but not for the expert one.

Table of contents

I. Introduction

II. The doping definition

III. The anti-doping violations

IV. The Medical doping aspects

V. Formalization of a legal criterion as a certain system of legal measures to prevent doping in sports and to combat it

VI. Conclusion

References

I. Introduction

In recent decades, much attention has been paid to "clean sport", countering unfair tactics and techniques in sports, effective anti-doping measures in sports, and the development of procedures and methods of doping control both throughout the world and in Russia. At the same time, the issues of the concept and essence of doping are still not fully resolved, while the effectiveness of combating doping depends mainly on either correct or incorrect understanding of the concept of doping itself.

II. The doping definition

Literature suggests the following understanding of doping:

- Biologically active substances, methods or techniques of athletic performance artificial enhancing that have side effects on the body*(1);

Any insertion into the human body of an alien substance or any physiological substance in abnormal quantities or administration of any substance in an unnatural way to artificially and unfairly improve performance of an athlete during the competition*(2);

Substances that are able to stimulate the achievement of sports results, give negative side effects to the health, and can be detected in an athlete's body by laboratory tests*(3).

Definitions close to the above ones can be found in other sources*(4).

Most definitions reflect a medico-biological approach that is quite liberal from the point of view of the juridical science and current legislation. Such concepts as "biologically active agents," "physiological substance," and "performance-enhancing drug" are very uncertain, lack clear understanding and, as a rule, are not entrenched in legislation. This approach significantly increases the role of appreciation of the party that makes responsible decisions, and the decision itself may look weak both for an athlete and the public. Law tends to use more precise definitions.

Turning to international sports documents, we can see that they avoid giving direct definitions of "doping" and are limited to the list of prohibited substances.

Thus, under the Anti-Doping Convention (Strasbourg, November 16, 1989), doping in sports means the administration to athletes, or the use by them, various pharmacological doping agents or doping methods. Doping is defined through doping substances and doping methods. Therefore, the Convention does not contain a definition of doping. Only Appendix to the Anti-Doping Convention, which lays out a list of classes of prohibited substances and prohibited methods, is of practical interest.

The International Convention against Doping in Sport (Paris, October 19, 2005) also gives no definition of doping*(5). This instrument focuses on the doping control. The Prohibited List is an integral part of the Convention*(6).

The approach described is useful in practical terms (if a substance is not in the relevant list, it cannot be considered to be doping) to solve a fairly narrow range of issues. However, it does not solve the issue with regard to the merits and does not answer the target question. Moreover, it leads to faster development of new substances, products, molecules, etc., which has a stimulating effect, solves certain problems of athletes, coaches, and team physicians, but are not included in the appropriate restrictive lists (due to their novelty, unknown character, and undeveloped methods (ways) for identifying them). Such a situation just gives an impression of combating doping, but, in fact, the real, hidden struggle is for the access to a new product and its possession.

III. The anti-doping violations

To talk about an anti-doping rules violation, first of all, doping should be clearly and consistently defined both in the doctrine and the law. The concept of doping should include the necessary and sufficient criteria that allow detecting and isolating the objects among other objects of the material world.

For instance, the doctrine suggests distinguishing target, social, and legal criteria in respect of medicinal products as objects of legal relations*(7). This approach can be taken as a basis, as the largest group of products (substances) prohibited for athletes are the drugs for medical use.

Depending on the type of sports the agents, substances, or methods may have different and even opposite effects on a human body. Some sports require power, others - speed; certain sports need extreme concentration of attention, while others do not. However, in any case, they contribute to the achievement of the desired, targeted result.

Also, one should clearly distinguish between' consumption of such agents, substances, or methods by professional and nonprofessional athletes.

Firstly, the range of used agents, substances, materials, methods, and techniques that affect a human body in medicine is somewhat narrower than in sports. Only those agents, substances, materials, and methods of treatment, prevention, rehabilitation that comply with all prescribed procedures and are registered in the prescribed manner may be used in medicine. As for sports, unauthorized and unregistered in the prescribed manner products and effects (e.g., by administering stem cells, the impact on the human genome, etc.) may be used as doping. Some agents or substances may not have potential use in medicine at all but have such a potential for certain sports.

IV. The Medical doping aspects

Secondly, athletes' medical consumption of drugs for medical use as patients, as well as the consumption of other products and substances, should be subject to certain rules and requirements equal for any patients. The requirements to the procedure and the way of administration and use of such products/substances for athletes being special subjects are stricter.

The possibility of medical use of the substances generally prohibited for athletes is an independent issue that needs resolution. There is always a temptation to circumvent the ban by inventing a medical or pharmaceutical legend. If such a legend becomes consistent (is used repeatedly for a long time), the issue arises of indication of using these particular products, medical exemption from the competition, and, in general, from taking this type of activity, and from the competitions with the participation of such athletes. In view of the above, therapeutic exceptions should be applied with great caution for a limited range of athletes.

In general, a consensus has developed in the world sports pharmacology concerning the non-use of potent substances or products dangerous for health and life of athletes. A modern training process involves a combination of scientifically grounded methods of training, optimization of diets for sports, and the use of effective and safe medical products*(8).

No matter how we tried to solve the doping issue by indirect, roundabout ways. It cannot be solved like this. The property of an agent, substance, etc. is a form of material existence. Regardless of variability and heterogeneity of a substance (molecules to genes) that is used to reach quite a specific goal in sports (to enhance athletic performance), it is necessary to identify its common characteristics, which will make it possible to distinguish between prohibited substances (doping) and non-prohibited ones (legal products, methods, or techniques of sports pharmacology). Of course, the objects of the material world that are difficult to be directly attributed to either permitted or prohibited ones (due to little research, ambiguous effects, etc.) may be found between these two poles. Based on the results of research and monitoring of their use, such products may be either included or not included in the restrictive lists in the future.

A clear boundary between prohibited and permitted agents, methods, and substances shall be determined on the basis of the principles of: scientific validity, transparency, and protection of life and health of athletes. Their implementation requires specific legal mechanisms (special studies, expert assessments, monitoring, etc.) and authorized bodies (commissions, committees, etc.).

In view of the foregoing, we can assume that to qualify an agent, substance, process, method or impact on the athlete as doping the following characteristics are required:

the ability to affect the athlete's body so that it can be used to improve athletic performance;

the ability to harm the health or life of an athlete.

As a rule, identification of the first criterion is not complicated. However, some modern products "work" only if there is an impairment of a certain process (ischemia, necrosis, etc.). The solution of the problem of sufficiency or insufficiency of a single criterion to distinguish doping from other substances and/or agents is much more difficult. In retrospective, it turns out that most of the substances listed so far in the Restrictive List are characterized by the simultaneous presence of two criteria (anabolic agents, growth hormones, etc.). At the same time, we cannot clearly and flatly state the existence of side effects and the ability of some modern products to cause harm. A lot of products (medicines, biomedical cell products, etc.) were originally designed not for athletes but for people with certain diseases. Metabolic and other processes of athletes, who are healthy people (the majority should be considered as such, unless you take into account short courses of therapy for acute diseases and/or traumas) proceed in a different way than metabolic and other processes in unhealthy people, and even healthy people who do not do sports. Please, note that there are no special studies devoted to this subject. If we analyze the list of prohibited substances, currently there are "doubtful" products in terms of indication of harm to health or life of an athlete. Apparently, with the development of modern biomedicine and biotechnology, the second criterion should be regarded as an additional/optional in assessing the impact of agents, substances, methods, and techniques on the athlete's body.

A social criterion is also significant to define doping. It is hard to talk about the nature of doping and its harmfulness both for the sports and for the society as a whole without referring the target criterion to the social one.

V. Formalization of a legal criterion as a certain system of legal measures to prevent doping in sports and to combat it

The combination of a target and social doping criteria (athlete's attempts to improve his/her athletic performance through the use of certain agents, products, or substances contrary to the principles and spirit of sports) necessitate formalization of a legal criterion as a certain system of legal measures to prevent doping in sports and to combat it.

Such a system should include legal measures and mechanisms:

defining agents, substances, doping methods, as well as other products potentially harmful for athletes;

establishment of authorities and offices conducting anti-doping policy; determining their operation procedure;

determining the reasons and timing of potential therapeutic withdrawal, as well as their procedure for a particular athlete;

implementation of doping control;

conflict resolution.

We should also think over a clear distinction between the competence of the bodies and persons: deciding on the inclusion of a certain agent, substance, or method in a list of those prohibited for athletes; detecting violations of anti-doping rules; applying sanctions to athletes for doping rules violation.

VI. Conclusion

We may conclude the above as follows.

Doping in sports means agents, methods, substances, techniques, methods of influence on the human body, by means of which athletic performance can be improved, prohibited in the prescribed manner.

The basis of this definition is formed by the target criterion (attempts to achieve the best result in the sport by using certain agents, substances, and methods of influence on the body), social criterion (consequences harmful for an athlete, sports, or society), and legal criterion (prohibition of administration of agents, substances, or methods in sport that are reflected in respective lists).

To qualify agents, substances, methods, etc. as doping in the prescribed manner, two criteria are needed and are sufficient: the target criterion (improvement of athletic performance) and social criterion (conflict with the principles and the spirit of sport). Such criteria allow competent authorities and persons (experts) to decide in the prescribed manner whether to include or not a certain agent, substance, etc. to the relevant Restrictive List. The legal criterion (availability of an agent, substance, or method in the list of prohibited ones) is formal. It is crucial for the sports and law enforcement practice but not for the expert one.

References

Graevskaya N.D. and Dolmatova Т.I. (2004). Sports Medicine. Moscow. P. 304. (In Russ.).

Karkishchenko N.N. and Uyba V.V. (eds.) (2014). Outline of Sports Pharmacology. Vol. 4. St. Petersburg. P. 448. (In Russ.).

Kolmogorov S.V. and Lyapin S.Kh. (2003). Doping and Its Conceptual Alternative. Arkhangelsk. Pp. 140-151. (In Russ.).

Kotskiy I.V., Voropaev A.V., Gubin G.I., Isaev Yu.S. and Onishchuk Yu.V. (2008). Medical and Legal Aspects of Doping in Sports. Siberian Medical Journal. No. 1. Pp. 113-115. (In Russ.).

Mokhov A.A. (2004). Medicinal Products as Objects of Civil Rights. Lawyer. No. 12. Pp. 53-57. (In Russ.).

Mokhov A.A. and Filippov P.M. (2016). Product Life Cycle: Law, Doctrine, Practice. Lawyer. No. 7. Pp. 28-31. (In Russ.).

Novikov V.F. (2009). Problems of the Stimulant Control in Sports. Bulletin of the Kazan State Energy University. No. 3. Pp. 149-157. (In Russ.).

Platonov V.N., Oleynik S.A. and Gunina L.M. (2010). Doping in Sports and Problems of Pharmacological Support of Athletes. Moscow. P. 308. (In Russ.).

Ponkin I. and Shevchenko O. (2014). On development of a legal doctrine in the field of sports. Teoriya i Praktika Fizicheskoy Kultury. 6. Pp. 32-34. (In Russ.).

Portugalov S.N. (2013). Prospects for the Development of Sports Pharmacology as a Direction of Extreme Medicine. Journal of Sports Science. No. 5. Pp. 87-90. (In Russ.).

Rogachev D.I. (resp. ed.) (2016). Russian Sports Law. Moscow. P. 640. (In Russ.).

Solovyev A.A. and Shevchenko O.A. (2014). Current Trends in the Legal Regulation of Doping in Sports: Russian and Foreign Experience. Narcology. No. 3. Pp. 3-9. (In Russ.).

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*(1) Kotskiy l.V., Voropaev A.V., Gubin G.I., Isaev Yu.S., Onishchuk Yu.V. Medical and Legal Aspects of Doping in Sports // Siberian Medical Journal. 2008. No. 1. P. 113.

*(2) Novikov V.F. Problems of the Stimulant Control in Sports // Bulletin of the Kazan State Energy University. 2009. No. 3. P. 150.

*(3) Kolmogorov S.V., Lyapin S. Kli. Doping and Its Conceptual Alternative. Arkhangelsk, 2003. Pp. 140-151.

*(4) Graevskaya N.D., Dohnatova Т.I. Sports Medicine. M., 2004. P. 38; Platonov V.N., Oleynik S.A., Gunina L.M. Doping in Sports and Problems of Pharmacological Support of Athletes. M., 2010. P. 308; Solovyev A.A., Shevchenko O.A. Current Trends in the Legal Regulation of Doping in Sports: Russian and Foreign Experience // Narcology. 2014. No. 3. P. 3.

*(5) Federal Law No. 240-FZ dated December 27, 2006 "On Ratification of the International Convention against Doping in Sport" // RF СВ. 2007. No. 1 (Part l). Art. 3.

*(6) World Anti-Doping Code. International Standard. Restrictive List 2016.

*(7) Mokhov A.A. Medicinal Products as Objects of Civil Rights // Lawyer. 2004. No. 12. Pp. 53-57.

*(8) Portugalov S.N. Prospects for the Development of Sports Pharmacology as a Direction of Extreme Medicine // Journal of Sports Science. 2013. No. 5. P. 88.