Doping scandals, Rio, and the future of anti doping ethics. Or: what’s wrong with Savulescu’s recommendations for the regulation of pharmacological enhancement in sport.

In his recent editorial for the international journal Bioethics, Julian Savulescu, concludes that “It is time to think more rationally and more philosophically about the regulation of human enhancement” (2016, 303). I could not agree more. Yet, his Editorial essay is a wholly inadequate characterisation of the status quo, which neglects the published literature, and provides a philosophically inadequate response to it.

Savulescu has a history of WADA critique (in proximity to Summer Olympic Games), and his most recent swipe appears to suffer from the same faults or weaknesses as previous ones, namely an imprecise characterisation of his adversary, resulting in straw man arguments; and a favouring of safe levels of [eg] anabolic steroids or human growth hormone. In addition, there are some new faults such as failing even to note knock-down arguments of his previous positions. I analyse these points in turn.

Savulescu questions the place of Meldonium¹ in the Prohibited List in support of his liberal-medical position. He asserts that it is the allegiance to nature over artificial (eg) pharmacology that fuels anti doping policy. In doing so, Savulescu relies upon that old saw “the naturalistic fallacy”, much favoured by positivists, that demonstrates how it is invalid to move to normative conclusions based on factual premises. He asserts that anti doping policy favours the natural over artificial in some non specific way. Neither Hume, nor G.E. Moore’s provenance is referenced but the position is clear enough. Thus the assumption that “nature” and its works are inherently of positive ethical value is thoroughly dismantled. The fact that few philosophers of science believe in the categorical sealing off of facts from values (see variously: Midgley and Clark, 1980; Putnam, 2002) seems not to trouble Savulescu unduly. Nor does the fact that the appeal to (good old) “nature” appears only once in the WADA Code² . The relevant sentence (penned by the bioethicist and former President of the Hastings Centre, Thomas Murray) runs “the pursuit of human excellence through the dedicated perfection of each person’s natural talents.” (WADA, 2016). Yet here, what is drawn on - quite sensibly - is the notion that we each have a set of genetic and other endowments, that by themselves are inadequate for athletic excellence. Sports are social artefacts. We must work at them, and on ourselves, if we are to reach any level of athletic perfection. Any use of that crude bludgeon, the naturalistic fallacy, is misplaced against the claim cited above. And, of course, that is part of the problem. Savulescu is not arguing against a specific, quoted, position but rather a crude characterisation of an anti doping posture: a straw man.

Savulescu then proceeds to criticize WADA’s two from three rule for inclusion of a substance in the Prohibited List: any two of the following criteria, if met, may permit a substance or method to be placed the Prohibited List, triggering potential Anti Doping Rule Violations by their users. These are that the substance or method be (i) [potentially] harmful; (ii) [potentially] performance enhancing; and (iii) against the spirit of sport. (WADA, 2016).

In the past, Savulescu has been critical of the “spirit of sport criterion” (e.g. Foddy, and Savulescu, 2007; Savulescu, Foddy, Clayton, 2004). Having earlier argued against the spirit of sport he now simply asserts that “WADA does a hopeless job at defining it” (2016, 302). So have many other scholars (Gleaves, 2011; Kornbeck, 2013; Ritchie, 2014; Waddington et al, 2014) to name but a few. But none of these are referred to in his editorial. I, for one, have argued against the position of excessive plasticity or conceptual vagueness of the spirit of sport (McNamee, 2012; 2015) and can only rehearse the critical part of that argument here: WADA does not offer a definition at all - not even a hopeless one. It indicates the kinds of reasons that it might adduce in arguments about a substance or method being against the spirit of sport, which would (in combination with at least one of the other criteria) be sufficient to place it on the Prohibited List. His point then is simply misplaced. Again, he creates a straw man (sic).

If one were philosophically serious about criticising the role the spirit of sport criterion played in anti doping, two questions should be asked. First, a point about transparency. Which methods or substances have been placed on the list, in part because of the application of the spirit of sport criterion in combination with evidence of either harm or performance enhancement? Second, if one wants more philosophical depth to the valid and effective prosecution of anti doping policy, one should ask how clear the concepts that are used here are, i.e.; how they are operationalised? how they are applied?; and so on. Once answered, we can then begin to unpack the arguments in typical philosophical style. Regrettably, there is currently no transparency of reasoning, since WADA do not publish their justification or argumentation. I think this is as much a loss for anti doping governance as it is for WADA’s legitimation. And I make no bones about being a (critical) supporter of WADA policy. As I have written before, the analysis of arguments for and against the use of certain Substances and Methods, is quintessentially a philosophical task. But there are no philosophers on the relevant WADA committee. This is simply unacceptable. While scientists and physicians populate the relevant committee, they are also required to make judgments on conceptual matters concerning the spirit of sport, but also about what is to constitute harm, or potential harm, or performance enhancement, or potential performance enhancement or the relevant degrees thereof. And, to be clear, these are conceptual positions that are being adopted or (more commonly) assumed.

So, there are good reasons to challenge the spirit of sport criterion. Yet Savulescu did not make clear during his earlier criticisms of anti doping policy the kinds of argument that might have refuted its proper place in anti doping policy. Now he supports the criterion, but based on his own account and an inadequate characterization of the state of the field. So having criticised WADA’s “hopeless” definition, he merely writes “The spirit of sport should include two components: 1. Preservation of an essentially human component to the sport. Using bionic limbs or super blades for running would confer a dominating advantage. They should be banned in ordinary sport. 2. Preservation of the test of the particular skill or strength. Beta blockers for archery or pistol shooting should be banned.” This is hardly a great conceptual leap forward.

In the first instance, does this present anything substantially different from our WADA quotation above about the perfection of natural talent? This is the line that Tom Murray (2009; 2015) has spelled out elsewhere in detail, and is at one in line with other aretaic conceptions of sporting excellence (Devine, 2011; McNamee, 2008, Reid, 2011; Sandel, 2009). Savulescu cites prosthetic technology as his stalking horse, but it is not difficult to imagine pharmacologies posing the same threat. What is the morally relevant difference between pharmacological enhancement and other technological (e.g. bionic) enhancement? He mentions “the preservation of the test”, but then this notion of competition integrity is ramified by several of the characteristics that WADA offers in its spirit of sport list of values. Worse, however, is this appeal to the “essentially human component” of sport - what sort of appeal is this? How is it to be understood except against some kind of understanding of human nature? So, on this ground at least he appears flatly to be contradicting himself. It is all well and good to note that we must treat the concept of human nature in ethical discourse with considerable care. But, as Savulescu has found to his own cost, offering an account of athletic excellence without reference to some conception of natural human endowments (species specific limits of strength, skill, speed, power, but also imagination, perception, strategic decision making, and so on) is empty.

Where Savulescu appears to have a genuinely distinct point is regarding the notion that human safety is a paramount consideration for anti doping policy. And this is a line he has consistently put forward (Foddy and Savulescu, 2007, Savulescu, Foddy and Clayton, 2004; Savulescu, 2015; Savulescu, 2016). Based on strong liberal foundations, Savulescu appears to assume that it is the task of sports institutions and other anti doping policy makers and enforcers, merely to notify athletes of harms and risks and allow them to decide rationally for themselves. Some may opt for (eg) steroid or growth hormone use with or without the use of cost-benefit analysis, but insofar as they are competent adults that is their choice and their responsibility. After all, as he has consistently and rightly observed, we allow risk taking right across the sports spectrum. Why, then, ought we not to do the same with doping substances and methods? Unfortunately this is a line of argument that has been devastatingly criticised elsewhere (Breivik, 1992; Holm, 2007) where it is rightly pointed out that lifting the ban on doping and putting doping under a medical context (as Savulescu argues), would not lead to a cleaner sport, but would lead to a two-tiered doping system, in which, in order to gain a competitive advantage, athletes would still take performance enhancing substances covertly so as not to allow competitors to match their preparation, in a classic instance of a prisoner’s dilemma (Breivik, 1992).

Where he appears to be saying something distinct, it turns out to be naive. Why would a reasonable person assume that elite athletes would stay within safe limits of pharmacological support for their sporting strivings? And when he summarises his position it sounds remarkably similar to the position he claims to be criticising. We saw this with his position against the ethical use of the concept of human nature, while leaning on it for support in his spirit of sport suggestions. Thus, he summarises boldly: “We should ban substances or practices that are clearly or probably significantly unsafe and we should ban specific substances that corrupt the spirit of a particular sport.” Now, does that really sound so different to two of WADAs three criteria? No.

What has been lost is the criterion of performance enhancement. Yet, as I have argued elsewhere (McNamee, 2012; 2015), what the defeasible criteria offer us is the following: flexibility in which to proscribe means of performance enhancement that are sufficiently threatening to human health, and/or against the spirit of sport.

In a nutshell, Savulescu has written of the issue of doping over more than a decade in a manner that fails to even address, let alone do justice to, the extensive literature in the philosophy and ethics of sports. To be fair, the failing is not a unique one. Interlopers to various fields of applied philosophy have often entered the field as if the extant literature need not be consulted let alone acknowledged.

What we do need, as philosophers, policy makers, or mere lovers of sport is greater transparency and rigour of reasoned argument about these matters. Professor Savulescu is certainly right on that point. But let us not throw the baby out with the bath water, nor pretend our favoured positions are superior because uttered by bioethicists or philosophers from beyond the philosophy of sport. That would be to argue ad hominem. I hope to have avoided that in this article, for if Savulescu has done one valuable thing it is surely to bring the problem to the attention to a much wider audience than sports philosophers. Let us focus on the quality of arguments. Anti doping policy, though, deserves better ones than he has offered us thus far.

Notes

1. The Lithuanian cardiac repair drug that appears to have been greatly favoured by a number of Eastern European athletes that has caught the global headlines in the last months)

2. Aside from handful of references to nature where what is referred to is a legal term - i.e. for the kinds (ie nature) of anti doping rules or legal considerations referred to. Clearly none of these refer to ethically salient appeals to human nature.