SII Focus 10th June 2016

The dangerous demonisation of performance enhancement

Performance enhancement is a dirty phrase in elite sport, but is the condemnation justified? The Sports Integrity Initiative and former Olympic sprinter Craig Pickering discuss the legal and moral implications of vilifying an athlete’s efforts to improve performance, in any form. 

Yesterday, after three months of speculation, Russian tennis player Maria Sharapova was suspended for two years. The verdict was followed almost immediately by a statement from Sharapova that she was to appeal the ban.

In her response Sharapova was quick to emphasise that she had not taken meldonium to enhance her performance, even while it was permitted before being banned by the World Anti-Doping Association since 1st January 2016. Indeed she claims that the tribunal came to the same conclusion.

‘The tribunal found that I did not seek treatment from my doctor for the purpose of obtaining a performance enhancing substance,’ wrote Sharapova in a cleverly worded statement. By contrast, the tribunal found that the evidence ‘must inevitably lead to the conclusion that she took Mildronate for the purpose of enhancing her performance’.

Even if Sharapova did not pick up on this inconsistency, her lawyer did. The tribunal’s findings, John Haggerty told the Wall Street Journal, were ‘flat out wrong’.

Following the verdict a lot of the focus has centred around this concept of ‘performance enhancement’ – this finding was a central feature of The Sports Integrity Initiative’s own analysis. The majority response however, was that of opprobrium. ‘Morality comes poor second in race for performance gains,’ ran The Independent’s headline, while many were quick to condemn Sharapova’s renewed sponsorship deals following the confirmation of ‘performance enhancement’.

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The Independent’s headline following the Sharapova verdict

These two words – ‘performance enhancement’ – appear to have become synonymous with cheating. And herein lies the problem – this contradicts the very essence of elite sport.

Most of an elite athlete’s conduct is centred around winning, around enhancing performance. The training they do, the way they eat, the way they sleep, the medicines they take to recover from illness, the legitimate supplements ingested. This simple truth is acknowledged by the Court of Arbitration for Sport (CAS).

In a 2013 case brought against Dennis de Goede, a Dutch judoka, the court sought to determine whether the athlete in question bore any fault or negligence for an anti-doping rule violation (CAS 2012/A/2747 WADA v. Judo Bond Nederland, Dennis de Goede & Dopingautoriteit). In its reasoning the court here was clear (para 7.14):

‘…when looking at elite athletes most of their behaviour is guided by the sole and single purpose to maintain or enhance their sport performance. If, e.g., an athlete takes a cough medicine he or she will do so in most circumstances to recover quicker in order to train and/or compete again.’

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Court of Arbitration for Sport ruling in April 2013

Sharapova was found guilty of using a banned substance, bearing responsibility and being at significant fault for the infringement – on this basis alone the two-year ban looks appropriate.

What is concerning however, is the insinuation by the tribunal that her use of meldonium to enhance performance, prior to its ban on 1st January 2016, was non-compliant with the rules and contributed to their reasoning for the ban:

‘…her concealment from the anti-doping authorities and her team of the fact that she was regularly using Mildronate in competition for performance enhancement was a very serious breach of her duty to comply with the rules. Her conduct was serious in terms of her moral fault…’

Much of the tribunal’s ire is directed towards Sharapova’s ‘concealment’ of her meldonium use. Yet it made clear in setting out the contentious issues that it was to make findings of fact upon, that the question of whether Sharapova used meldonium to enhance her performance in competition was one of them.

The tribunal refers to Sharapova ‘regularly using’ meldonium in its summary. Throughout the full decision, ‘regular use’ is applied to Sharapova’s meldonium use from 2006 until 2016, the majority of which was pre-2016, so within the rules. To suggest that using a permissible performance enhancing drug is a violation of the rules is misleading.

“If the authorities wanted Mildronate to be banned [before 2016], it would have been,” observes Craig Pickering, the former Olympic sprinter who was part of the 4 × 100 m Great Britain relay team which won the bronze medal at the 2007 World Championships. “There is nothing in the rules, as far as I am aware, to show that taking Mildronate prior to 2016 was not legal.”

“So, if the [tribunal’s] statement is in reference to the use of meldonium prior to 2016, then yes, I do believe the line is being blurred. It is precisely things like this that confuse the public, and even athletes, as to what is acceptable and what isn’t. It is imperative that rules are clear and unambiguous, which is not the case here at all.”

One substance that continues to find itself crossing those blurred lines is caffeine. This has been highlighted by The Sports Integrity Initiative in the past. Before 2004, it was a prohibited substance by the World Anti-Doping Agency (WADA). Since then, it has featured on WADA’s Monitoring Program. A lot of athletes use it for its performance-enhancing features (it enhances speed and stamina), including Pickering. This is perfectly within the rules.

“There is that danger,” explains Pickering of whether ‘performance enhancement’ is now simply seen as cheating. “We saw it today on Twitter when I was called a drugs cheat because I used caffeine to enhance my performance.

“In my experience, the general public are generally uneducated when it comes to anti-doping matters, and certainly don’t have a full understanding of the process, which in the social media era can quickly spread.

“The line between banned and legal is often arbitrary, and substances can swap sides (like meldonium in this case, or caffeine beforehand), which further adds to the confusion.”

This concept of performance enhancement is not confined to elite sport. During finals at Oxford, another cauldron of fierce competition, it was the norm for students to neck a can of red bull before each exam. Was this done in the course of normal, everyday life? No. Was it done to keep those students awake after hours of studying, to improve concentration and therefore enhance performance? Yes.

Many other students, reportedly as many as one in four (I would even argue more), went even further, regularly taking the prescription drug Modafinil to improve cognition and allow them to study for longer. Is it against the rules? No. Is it unethical? Good question.

“From a morality standpoint, it’s on shakier ground,” argues Pickering. “Athletes can’t be expected to police themselves on morality, because what is immoral for one person is not a problem for another. I would never take meldonium, other [rule-abiding] athletes do.

“This creates a problem, especially when people try to superimpose their own morals and ethics onto another person, despite differences in culture between the two.

“I think morals/ethics are individually determined, and superimposing my own feelings onto someone who was brought up in a completely different culture is not fair. We have to remember that the vast majority of positive findings for meldonium come from former Soviet states – is there something culturally there which is different to the UK in terms of attitude to “grey-area” performance enhancers?”

Pickering never took meldonium while it was permitted. He did take caffeine. Is one morally wrong and the other not? It’s difficult to draw the line. Either way it is difficult to see how this is a factor on which the tribunal was qualified to assess; it’s finding of ‘moral fault’ by Sharapova sits uneasily.

Even if the tribunal was directing most of its ‘moral fault’ finding towards the failure of Sharapova to disclose meldonium, it’s a brave extrapolation to consider this categorically to be ‘immoral concealment’. In the real world, the fact that an athlete does not report a substance or supplement or vitamin on their doping control form is not unusual. Rarely will an athlete have recorded everything on their doping control form; often they don’t bother filling out the supplement/medication box at all if they believe what they are taking is within the rules. Pickering said that he did, because he was “extra cautious”. Of course it is in an athlete’s best interests to do so – should they fail a doping test it could help in mitigation – but in practice it doesn’t always happen.

Sharapova’s failure to disclose meldonium may have been because she had something to hide. It might also have been because she didn’t even think meldonium was worth mentioning. The tribunal failed even to explore this question.

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WADA doping control form. The box for declaration of medication and supplement use is highlighted in yellow.

One explanation for the backlash against permitted performance enhancement is that it is not a question of enhancement, but one of scale and familiarity. Meldonium is a substance not consumed as part of a normal diet. Caffeine, and protein, are. Consuming cans of Red Bull or drinking protein shakes to enhance performance therefore cause little controversy. It’s also a matter of pragmatism.

“Caffeine is certainly a performance enhancer,” says Pickering. “Which probably means it’s a prime candidate for being banned by WADA. However, we need to be practical about this.

“Caffeine is widely available, and it’s found within the normal diet in coffee, tea, and soft drinks. By banning caffeine, WADA would likely see a high number of adverse findings by athletes who have accidentally consumed caffeine. You wouldn’t be able to ban caffeine completely (it’s present in some foods, like dark chocolate), but you could potentially put in place an upper limit.

“But where do you draw the line? Carbohydrates enhance performance – should we ban those? Generally, my feelings are that if something can be found within a normal diet, it shouldn’t really be banned, as it’s hard to correctly police.”

The debate is a complex one and much of it objective. One thing is clear, the tribunal has jurisdiction to judge according to the rules; whether it should be judging questions of morality sits less easily.

Sharapova’s response, that she categorically did not use meldonium to enhance performance, even when legitimate, does little to change the perception.

“I would guess that it’s important to the narrative that Sharapova wants,” suggests Pickering. “If she can convince people that she took Mildronate for a medical issue, it paints her in a better picture from an ethical standpoint, which would be important from a damage limitation standpoint.”

It is not surprising that, in a case fighting for her career, Sharapova has opted to try and protect her reputation. Yet in the wider context, the fuelling of this idea that performance enhancement, through whatever method, is wrong, is a dangerous one. You can’t punish an athlete for trying to enhance performance; you punish them for breaking the rules.

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