<p>The Olympic anti-doping movement is messing with athletes' rights and they want to use the power of government to invade yours.</p>
The overlords of the world’s anti-doping movement really want you to focus on Lance Armstrong. He’s as unsympathetic a character as Barry Bonds, with his bullying, posturing and all-around ass-holery. So since they worked hand-in-glove with federal agents to expose Armstrong’s doping operation, and cornered him into confessing to Oprah, they’ve taken an extended victory lap. To them, their triumph validates their new approach to policing dopers—more investigations and government pressure, on top of an already invasive drug-testing regime.
But please ignore Jimmy Connelly.
Connelly, 24, a New Jersey resident and son of a police officer, who had his own run-in with the United States Anti-Doping Agency (USADA) a taxpayer funded non-profit outfit, is much more like the athletes you’ll see in the upcoming Sochi Olympics. He isn’t rich or famous, but playing sports was his job. And despite being born with spina bifida, he was good at it. For seven years, he was a member of the U.S. national Paralympic sled hockey team, winning gold in the 2010 Vancouver Games.
Once he joined the elite squad in 2005, though, Connelly discovered an uncomfortable fact of life faced by all such athletes: He was going to be treated like a criminal.
In short, Olympic athletes are presumed guilty when it comes to doping, leaving them subject to secretive investigations and surveillance, privacy invasions, sketchy science and, some argue, a rigged justice system. And unlike their MLB, NFL, NBA or NHL counterparts, they enjoy no union or collective body that can serve as a counterweight to the agencies and protect their rights though they are workers in the sports entertainment business just like athletes in pro leagues.
All of which leaves Olympians like Connelly on the front lines of a new War on Drugs, which is being waged much like the old, failed War on Drugs. Like the old War, this new one is fought with investigatory zealotry, plea bargains and draconian sentences, and fueled by a manufactured moral panic. All worth it, you might argue, to combat the use of PEDs in sports. But not only is the strategy doomed to fail, it carries risks for the rest of society—including you and me.
“I was a prosecutor during the war on drugs,” DeMaurice Smith, head of the NFL Players Association and a former assistant U.S. attorney says of the World Anti-Doping Agency (WADA) system, “and anti-doping has taken on this culture of enforcement while at the same time refusing to be transparent.”
While some athletes object (usually privately) to the new WADA code, some do favor the tougher restrictions. Faced with a long history of drug use—from the state-sponsored doping of the former East Germany, through the individual users like sprinter Ben Johnson, to Armstrong’s Postal Service cycling team—they don’t want to feel like they have to take a drug to compete.
Protecting clean athletes and saving the Olympic brand was the original rationale behind the creation of WADA. The International Olympic Committee (IOC) had long run its own drug-testing regime, but critics often accused it and national Olympic committees such as the USOC of playing down doping in an effort to keep the Olympic brand unsullied. Then, during the 1998 Tour de France, evidence emerged that at least one cycling team, Festina, was running an organized doping operation. The ensuing scandal nearly collapsed the Tour. Unable to downplay doping any longer, the IOC created WADA as an independent body—though IOC members make up half of WADA’s board, the other half being government representatives.
WADA was set up to establish and oversee the rules and regulations used to test athletes for banned drugs. Screenings would be conducted, for the most part, at events. But even at the outset, WADA strayed from its core mission of eradicating PEDs, because the old Drug War was in its DNA, so much so that the White House Office of National Drug Control Policy, the U.S. “drug czar,” partly spearheaded WADA’s creation. At the office’s insistence, WADA’s banned drugs included—and still includes—marijuana, which has no performance enhancement value. That’s what got Connelly.
Connelly heard the loud rapping on his hotel room door at precisely 6 A.M. Dope testers roused him early on the morning of the 2009 World Championship gold medal game demanding a urine sample on the spot.
Under WADA’s code, an athlete can be tested anywhere, any time except between the hours of 11 P.M. and 6 A.M. Finding Connelly was easy because he was at an event, but it doesn’t matter where an athlete is because they have to follow the so-called Whereabouts Rule—meaning they must report where they will be for every hour, every day of their lives to a central authority, which can then share that private information with agencies all over the world. Not long ago, dope testers used the Whereabouts Rule to pull American skier Lindsey Vonn from the red carpet of a fashion event to demand that she pee in a cup.
Under the revised code taking effect in 2015, no time is off limits. Doping control officers can show up at an athlete’s home or hotel room in the middle of the night and demand blood or urine. All they need is “serious and specific suspicion that the athlete may be engaged in doping.” Refusal to submit will result in job loss.
Connelly was a target for testing because he was on a winning team and because he’d already been tagged with one doping offense. Connelly sometimes smoked weed to relieve nerve and muscle pain caused by his spina bifida. He always stopped before any competitions, but marijuana metabolites can linger in the body for weeks. During an April 2009 tournament in Rochester, New York, he was forced to urinate into cups while a doping control officer watched. Once his sample tested positive for THC, he was publicly labeled a doper by USADA and banned for three months. The ban didn’t have much effect on his career, but it made him a preferred suspect for future testing. “I was tested at every event after that,” he says, sometimes multiple times.
Positive tests come with harsh mandatory minimums. Anti-doping advocates see them as a deterrent to drug use—in much the same way legislatures employed tough sentencing guidelines for the previous War on Drugs. The standard competition ban used to be two years with time shaved off if, for example, an athlete could show that a positive test resulted from an inadvertent ingestion of something, or, as in Connelly’s case, there was clearly no attempt to cheat. But under the revised code, the standard ban is four years, a career-ender for most athletes. The code does include a way to reduce that penalty, though: Finger others for doping and you can shave your time. Conversely, if you fight the charges, your ban can be extended.
Despite the expansive testing regime, it never snagged Armstrong. USADA’s investigation of him and his subsequent confession crystallized a dilemma faced by every anti-doping organization in the world. “The question for WADA then became, ‘How do you cope with failure?’” says University of Texas professor John Hoberman, who has long researched and written about the Olympics and drug use.
Testing typically catches athletes who ingest something by accident or who are too stupid or poor to get around the testing regimen. To catch a sophisticated doper like Armstrong, USADA proved it had to harness law enforcement. “They said, ‘Throwing our lot in with the police is the way to get this done,’” Hoberman explains.
“The investigative mindset affords greater opportunity to find out who these people are and to see that they also suffer the consequences,” argues Thomas Murray, president emeritus of the Hastings Center, a bioethics think tank, and the head of WADA’s ethics committee. “It helps unsettle the infrastructure of doping.”
“The rationale is entirely different [than the War on Drugs],” he adds. “In the War on Drugs, people using drugs of abuse like heroine and coke aren’t competing with each other to see who can get higher. My use of heroin doesn’t have an immediately disadvantageous effect on other people. The analogy to the war on drugs is deeply flawed.”
Maybe, but based on such reasoning, ex-cops can now be found all over the anti-doping movement. A former chief constable heads the U.K.’s agency. WADA has hired Jack Robertson, a former San Diego-based DEA agent, as its “chief investigations officer.” WADA has allied itself with Interpol and has begun to demand that governments share law enforcement information that might relate to doping with anti-doping agencies. (Failure to do so could result in the loss of hosting privileges for international sports events like the Olympics.)
WADA’s revised code also has a new section entitled “Testing and Investigations.” There, it declares that its investigations are unencumbered by national laws and restrictions placed on law enforcement. “These sport-specific rules and procedures aimed at enforcing anti-doping rules in a global and harmonized way are distinct in nature from criminal and civil proceedings,” the code reads. “They are not intended to be subject to or limited by any national requirements and legal standards applicable to such proceedings…” Translation—almost any tactic is acceptable.
In Australia, which WADA holds up as a model for other countries, the CEO of ASADA, the head of the domestic anti-doping agency, can demand testimony, documents or other material things from any citizen if the CEO determines it might be useful in a doping investigation, even documents that might incriminate somebody in a crime.
In addition, the new code creates a blacklist of people with whom an athlete isn’t allowed to associate. These names are kept by anti-doping agencies and reported to athletes. They include any athlete serving a competition ban, any “support person” like a coach who has been implicated in doping and any person who has been sanctioned by any court or professional panel for anything that seems doping-related.
More troubling is that WADA seems to favor policing non-elite athletes as well. According to the revised code, “An anti-doping organization has discretion to apply anti-doping rules to an athlete who is neither an international-level athlete nor a national-level athlete, and thus to bring them within the definition of ‘athlete.’” In an explanatory note, the code states that this language “allows each national anti-doping organization, if it chooses to do so, to expand its anti-doping program beyond international- or national-level athletes to competitors at lower levels of competition or to individuals who engage in fitness activities but do not compete at all.” Translation—anybody who goes to the gym or runs or plays in a softball rec league (or any other kind of rec league for that matter).
If it seems far-fetched that just by working out you could be a suspect, consider what’s happening in Denmark. There, the national anti-doping agency can go into gyms that have elected to join the national anti-doping scheme (and there is pressure for all gyms to join—those that don’t fall under suspicion and must display a frowny-face sticker announcing their abstention from the scheme) and demand a doping test from anybody inside.
So far, USADA’s power outside Olympic sports is more circumscribed, says Dionne Koller, a University of Baltimore professor of sports law who studies the relationship between governments and anti-doping. “We still have the Cold War mentality that government stays out of sports,” she says.
Technically, USADA could use its taxpayer money to have you followed, or go through your trash. But while the WADA code might seem scary from a civil liberties and due process perspective, Koller believes that, at least in the United States, non-athletes are protected. Even so, “I do think it’s true that if you find a government agent willing to work with USADA, then yes, [USADA] will have access [to law enforcement power].”
That’s exactly what happened in the Armstrong investigation. For now, though, his case is an outlier. Prosecutors work on cases involving everything from spying to murder to human trafficking; so they can be loathe to invest time and resources to investigate an athlete suspected of doping, which isn’t a crime in the U.S.
The anti-doping agencies are acutely aware of this reluctance, so they know they have to rally public and political support. In response, they play up the same two dangers the old drug warriors did: organized crime and kids using drugs.
There has long been an illicit market in PEDs, mainly steroids, most of which are used by gym rats and body builders. WADA and its allies say PED (mainly steroid) rings supplying the drugs are run by organized crime and that governments must work hand-in-hand with WADA in order to save the world from the scourge of such crime syndicates.
It might be the case, however, that criminalization has created crime, just as during Prohibition. Some evidence: In 1983, the United States pressured the maker of Dianabol, a popular steroid, to stop domestic production. David Jenkins, who once held the U.K.’s 400-meter record and who won a silver medal in the 1,600-meter relay during the 1972 Olympics, then began pasting fake labels onto steroids formulated in Tijuana and bringing them across the border. At first, he recalls, his operation was made up of “enthusiasts, bright, non-violent” people who carried drugs in duffel bags. But the business grew and attracted the attention of U.S. Customs and federal prosecutors. The operation was broken up, and Jenkins pled guilty to smuggling mislabeled drugs in 1987.
Three years later, the U.S. Congress passed the Anabolic Steroids Control Act. Even some prosecutors and drug enforcement experts objected, arguing that naming steroids as a “scheduled” drug in the same class as some addictive substances would only attract hardened criminal drug gangs. Jenkins thinks those objections were correct. “It damn well did bring rougher characters into the trade,” he says. But in 2004, after baseball’s steroid mess, Congress acted again—with full support from USADA and WADA—making more substances, including some dietary supplements, scheduled drugs.
But “increased penalties usually don’t dramatically reduce demand and/or supply,” says Julilly Kohler-Hausmann, a Cornell University historian who studies punitive transformations in social and criminal policy. Nor do they prevent steroid use among gym members and body builders, adds Harrison Pope, an expert in steroid culture at Harvard University. The only effective deterrents, Pope believes, are concerns about “health and safety.”
That’s where the kids come in. Yes, PEDs can be harmful to young, growing bodies. However, WADA, USADA and some USADA-allied groups, like the Taylor Hooton Foundation, play up the “crisis” of steroid abuse among kids, despite scant evidence a crisis exists. For instance, according to an ongoing national survey run by the University of Michigan called Monitoring the Future, only 1.5 percent of male high school seniors said they used a steroid during the past year.
Anti-doping advocates ignore this data because it would undermine the moral imperative of what they believe is their larger mission. “USADA recognizes that the time is right to lead the charge in transforming the role of sport in our culture to a collective good that serves as a training ground for cultivating responsible and ethical global citizens,” the agency wrote in its 2012 annual report. These groups perceive not just sports, but society as a whole to be in decay, and want to use their growing power to stop the rot.
In the current climate, tainted by the likes of Armstrong, WADA and its affiliates go widely unchecked in their accumulation and use of that power. But anti-doping organizations' actions deserve further scrutiny, as evidenced by their handling of Human Growth Hormone (HGH).
Despite no proof that HGH improves athletic performance WADA has banned HGH and grown obsessed with detecting its use. The organization claims its current test is foolproof. In turn, NFL owners, sensing a PR coup, placed intense pressure on the NFLPA to let the league institute it. The union questioned the test’s validity, which opened a floodgate of criticism from the sports media, owners, politicians and WADA.
Then came the case of Estonian cross-country skier Andrus Veerpalu. The two-time Olympic gold medalist and national hero tested positive for HGH in 2011, incurring a three-year ban. The test effectively ended Veerpalu’s career; he retired in disgrace but continued to appeal the results in an effort to clear his name. WADA vigorously defended the test, but in March 2013, in a rare instance of the Swiss-based Court of Arbitration for Sport finding in favor of an athlete, Veerpalu was cleared of wrongdoing. The court found the HGH test “unreliable” for assessing the guilt of an athlete, just as the NFLPA had argued. WADA still uses that HGH test, though it claims a second “blood test, in its final development stage, will be combined with the current test….”
Had the NFLPA folded under pressure from WADA, its players would have been subjected to a test now deemed unreliable. That’s one reason why Smith says, echoing the sentiments of other players associations from America’s major sports, “This union will never subject ourselves to WADA.”
Olympians, like Connelly, who are worker bees in a multibillion-dollar entertainment franchise, don’t enjoy similar advocates for their rights against anti-doping organizations. As such, they face an ever-expanding testing regime, in addition to a persistent investigatory force that will invade their privacy, restrict their freedoms of association, conduct warrantless searches and threaten their careers on the basis of unreliable tests and coerced witnesses. And that’s just the start. If WADA succeeds in extending its reach beyond sports, you and I could find ourselves under the same sort of suffocating scrutiny.
Brian Alexander is a writer and author based in California. A frequent contributor to NBCNews and Outside magazine, his work has appeared in The New York Times, The New York Times magazine, Wired, Esquire, The Los Angeles Times magazine, and many others. His most recent book is The Chemistry Between Us: Love, Sex, and the Science of Attraction, written with neuroscientist Larry Young. Follow him on Twitter at @BrianRAlexander
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