Therapeutic use exemptions and the doctrine of double effect

Abstract

Without taking a position on the overall justification of anti-doping regulations, I analyse the possible justification of Therapeutic Use Exemptions (TUEs) from such rules. TUEs are a creative way to prevent the unfair exclusion of athletes with a chronic condition, and they have the potential to be the least bad option. But they cannot be competitively neutral. Their justification must rest, instead, on the relevance of intentions to permissibility. I illustrate this by means of a set of thought experiments in which only an athlete’s intentions vary. I argue that the Doctrine of Double Effect (DDE) sheds some light on TUEs and illustrate this by applying different readings of the DDE to the thought experiment. This underpins a justification of anti-doping exemptions very different from the approach adopted by the World Anti-Doping Agency (WADA). I argue for three changes to bring TUEs in line with this understanding: rewriting of the regulations, transparency, and a greater role for athletes in determining what exemptions are allowed, and when.

Keywords:

• Therapeutic Use Exemptions
• Doctrine of Double Effect
• doping
• anti-doping
• intentions
• strict liability
• PEDs

Acknowledgements

I would like to thank Paul Gaffney and two anonymous referees of the Journal of the Philosophy of Sport for helpful comments. An early draft of this paper was presented at the British Philosophy of Sport Conference, University of Sunderland, in April 2015 and I am grateful for comments received from members of the audience on that occasion. I have discussed TUEs and received comments from a large number of extraordinarily helpful colleagues. I would like to thank Alfred Archer, Alex Barber, Mitchell Berman, Andrew Bloodworth, Sophie-Grace Chappell, Sean Cordell, John William Devine, Yuval Eylon, Paul Faulkner, Mike McNamee, Carolyn Price, Mike Townley and Christopher Yorke. They have managed to save me from some errors. The remaining ones are all my own.

Notes

1. It is, of course, important to see that these are two separate claims.

2. There is an authoritative account by the instigator of TUEs, Kenneth Fitch (Fitch 2013).

3. Throughout this paper I will use ‘fair’ and ‘unfair’ and ‘just’ and ‘unjust’ in ordinary, pre-theoretical ways. I will also not distinguish rigorously between ‘competitive harm’ and ‘injustice’ since, for the sake of the argument here, nothing hangs on these distinctions.

4. It might be objected that the precision required of TUEs is merely that required to match to the counterfactual performance of a healthy athlete, not to match to race results. My point, though, is to consider the degree of precision that would leave results untouched so leaving TUEs competitively neutral. That depends on the competition. And the point of the second clause is to leave competition untouched.

5. It is notoriously contentious to say what counts as an enhancement above normal functioning. In their careful account Gyngell and Selgelid give seven different definitions of enhancement and conclude that they are all potentially useful and that there is not a single correct way to define the term. (Gyngell and Selgelid 2016)

6. There is an excellent account in FitzPatrick (FitzPatrick 2012a).

7. I think successfully.

8. The sense of playing fast and loose with different Moral Theories is not one that I wish to avoid. For some discussion of an ethical anti-theory position see Sophie-Grace Chappell’s work (Chappell 2014).

9. Though I reject his claim that auxiliary rules have ‘nothing whatsoever to do with the essence of sport’ (Meier 1985).

10. That is to say, they can be justly overridden. Absolute rights can never be infringed, only violated. But rights to the privacy of one’s medical records are not absolute rights.

11. Let Justice be Done though the Heavens Fall.