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Robert Basil

Similar objections to "performance enhancement" have found their way into the gender wars. Women's groups complain that men's ability/willingness to work long hours, especially by avoiding family responsibility, gives them an unfair (indeed, an unhealthy) advantage over their women peers. They seek a workplace where working long hours is either prevented or not rewarded, claiming that it is for the good of all (or at least the greater good). As often happens, sports are a metaphor for "real life."

Lawrence Indyk, University of Kansas School of Law

I think one of the underestimated reasons for the objection to drug-enhanced athletic performance is that many people derive some amount of psychological satisfaction from the idea that the great athletes derive their greatness not from just talent and training but from a rare ability to reliably summon up an inner drive of spirit and motivation that transcends what we normal mortals can typically achieve on our best days.

We enter "the zone" haphazardly and blame random chance on the unexplainable and accidental nature of our outlying successes. These occassions seem to indicate an underlying potential for greatness that can only be released when a rare confluence of events establishes that unique state of mind. The great athletes, we like to think, have more an advantage over their competitors in their special ability to "evoke the zone", than in their typically tiny physical differences.

A human being's physical capability is contrained by the limits of possible genetic variations within our species - and world-class atheletes within a particular sport are likely to share similar relevant genotypes. Nevertheless, their performance (like we recognize in ourselves) is highly influenced by their psychological strengths and weaknesses. When people talk about the greatest golfers, in particular, they use this kind of language all the time.

It is a popular and great moral value in our culture that those with greater "drive" are entitled to greater rewards of their hard work, persistence, determination, motivation, and sacrifice. It's part of the American dream that "anything is possible" (in regards to the exploitation of ones talents) if only one applies sufficient amounts of the above qualities. Conversely, people are usually upset when someone achieves fame or fortune in the absence of these "deserving characteristics".

So one of the objections to performace enhancing drugs is not just that it's cheating - but it's cheating our sense of the justice of sports - that the less motivated athlete should win over the more motivated athlete because of the taking of a pill.

Of course, if everyone takes the drugs, then drive comes back in the picture to distinguish the best from the rest. But the drama we prefer is when someone pulls ahead of the pack on drive alone, not on a combination of drive and manipulation of their bodies. We want their bodies - their inborn human constraints - to limit them, just the same way our bodies limit us. We want to believe a little in our own capacity of a freedom to choose to achieve the difficult - that we can justifiably hope that we can overcome our challenges with sufficient willpower.

No one makes a movie about someone who wins all the time because he was just born big. They make movies about individuals with a spirit so exceptional that they can overcome their own adversities and transcend normal human limits to achieve victory.

One of the entertaining aspects of sports is just this - this observation of what we think is walking proof of man's capacity for greatness if only he wants it enough. It's one of the reasons - besides the example to children - that we wish our athletes (and our leaders) to be something more than normal, weak, sinners like us poor slobs. We want their mind-over-matter powers to set the example for us in all the various areas of our lives where we find our discipline falls short of the ethical ideal.

Performance enhancing drugs tend to explain away success and rob people of their craving for these moral examples. I would go further and guess that people care more about this and the entertaining drama of "mind over matter" and "just competition" than they care about the risks of potential long-term health consequences to people they dont know.


Why not follow a disclosure rule, as we do in certain other areas of endeavor, particularly in the market? Cyclists, runners, baseball players etc. would be free to take whatever they liked. After all, the rules of sports regulatory authorities are not likely to be any more effective in the future than they have been so far. An athlete could then certify publicy that his result was drug/dope free, subject to a requirement that he/she submit to a complete mecidal/chemical analysis. Athletes not certifying this don't have to submit to anything, and the market will be free to draw its own conclusions as to whether a particular result is really a result of bona fide human endeavor, or chemically induced.

Richard Mason

Posner: there is no improvement in the entertainment quality of football if 400–pound linemen confront each other rather than 200-pound linemen

This is not self-evident to me. However, there is an empirical test. If the above statement is true, then in sports that have weight classes, the different weight classes should draw audiences and profits of roughly equal size.

I am actually not sure if this is true or false. Certainly there have been highly-paid welterweight and middleweight boxers as well as heavyweights, so maybe it is true. Can anyone provide data?


"Their legal and widespread use by star athletes would validate the drugs in the eyes of impressionable youth."

I'm not so certain that the "legal" aspect is as significant (perhaps even relevant) as the
widespread use of performance enhancers. Thus, even if performance enhancers are illegal, there is still a great chance that the youth will continue to seek performance enhancers because of the widespread use. Moreover, I'm not sure how much they are used today, but since there is a slight connection between performance enhancers and great athletes such as Barry Bonds, there is a higher chance of there being an increase in use among younger athletes.

In addition, I wonder how significant professional atheletes play in the decision making of younger atheletes; perhaps their roles are dim. And, if that is the case, there could be other reasons to explain why performance enhancers might augment among the youth in any case.

Nevertheless, It is quite possible that the competitive nature of ametuer sports will entice younger atheletes to get an edge. Or, it is quite possible that since there is such a low probability of becoming the next Lebron or Reggie Bush, it will encourage younger athletes to seek non-tradtional routes to superstardom, such as performance enhancers. This is so because they might conclude that performance enhancers give them a better shot compared to traditional routes (like practicing).


I think the more interesting question is: what if all these things become completely safe? Are there reasons to ban them nonetheless?

The President's Council on Bioethics has a chapter on that issue in its report Beyond Human ("Performance Enhancement"). I'd love to hear your thoughts on it.


Related issue: if these substances are used in the open and have their intended effect, do we also create a parallel set of record books, i.e., one for records achieved during the era of pre-usage, and the other for afterwards?
This makes the decision by the Commissioner of baseball to place an asterisk next to Roger Maris' home run record in 1961 seem like child's play in comparison.

Mary Katherine Day-Petrano

I think I can add another perspective to why doping atheletes is bad and should remain banned.

I am an autistic who was fortunately not locked up in an institution, whose mother supported the therapuetic benefits of horseback riding. I began riding at age 10, and this greatly enhanced my abilities in so many other areas, even enabling my successful graduation from law school.

Long before there existed "the Special Olympics" (for which I would not have qualified as I am savant), my mother began encouraging my competition in American horse shows in the hunters, jumpers, ponies, and equitation.

Decades later, and as a still active professional rider, I know what it takes to achieve the top levels of equestrian sports. I qualiefied and competed in the hunter seat Medal and Maclay finals at Madison Square Garden and the Pennsylvania National, and then won a U.S. National Amateur-Owner Hunter Championship.

Along the way, I have encountered not only the doping of riders, but also of horses. Unlike other sports, the doping of the horses to which one entrusts his or her physical safety and well being is an extremely serious concern.

I have personally tried out horses my students were interested in purchasing that were drugged with tranquilizers, presenting two problems: (1) once the horse is purchased and comes out of the drug-state, will the horse be an insane out-of-control maniac dangerous to the rider?, and (2) is there anyone who would desire to knowingly jump obstacles up to 5-6' in height with 4' or wider spreads on a horse with dulled and delayed responsiveness for which an error could be fatal?

Another concern is the overmedication with pain masking drugs, which does not eliminate the underlying unsoundness problems horses may be having although they may appear sound.

I was personally misled by an owner to jump one horse that had compromised suspensory tendons resulting from navicular (bad landing gear), that resulted in the horse's front legs giving way on the landing of a 3'3" swedish oxer jump, causing the horse to nosedive from the air straight into the ground like a downed airplane, skid 10' face first into the arena sand and gravel, and eject me over his head causing two cracked ribs. It well could have been my last moments.

So, I think it is fair to point out the distinction in formulating a doping rule between children vs. adults is not helpful. And full disclosure does not serve to prevent serious risk of injury or death resulting from doping incidents. Readers may not realize this, but many professional riders do not have a real choice about riding a compromised horse in the course of making a living in the sport, since the ride on bad horses is frequently tied to the rides on the good ones.

Moreover, as an autistic who already has far more adversity to overcome physically to accomplish what *normal* athletes can do, it is insulting and disgusting to allow a performance enhancing doping exception as a shortcut to the hours of training and practice that real champions struggle through to reach their achievements.

I would also point out, that as an autistic I have a special talent many *normal* people do not have, and that is an uncanny ablity with animals. While autistics may be lacking in the ability of human social interaction, this is not so with horses and other animals. So, to allow a physical performance enhancing doping exception would be to encourage a form of unfair cheating by permitting a shortcut artificially enhancing the performance of riders who lack the "touch" with difficult horses -- this very same "touch that makes all the difference of determining who is really a champion.


"In contrast, the overworking law firm associates increase their firm's output."

Well then I hope you aren't one of those judges who routinely criticizes the quality of briefs (or their entertainment quality) and competence of lawyers who come before you. The quality of legal work falls off before the quantity as the workday lengthens.

Should lawyers be forgiven for taking performance enhancing drugs prior to oral argument?


Before aural arguments, I always find it's good to have a shot or two of good whiskey in me before I start. It lubricates the tongue and loosens the mind. I do believe Webster and Cicero wouldn't mind. ;)

Frederick Hamilton

The biggest reason for the performance enhancement illegality is the terrible effect on health. I was a crew chief for the NCAA Drug Testing Program at its beginning and for a number of years. Along with being a physician.

The better body through chemistry is with the use of anabolic steroids. Testosterone. The deleterious side effects are very bad indeed. Carcinogenesis. Increased atherosclerosis. Impotence. Among other things. In women the testosterone along with building muscle, causes a permanent loss of feminity. Facial hair. Lowering of the voice. Infertility. Some pretty bad things to endure just to be competitive.

Anabolic steroids are banned and illegal for doctors to prescribe not because of anything to do with increasing performance of athletes. They are illegal to prescribe except in rare circumstances because of their awful effect on the health of the patient with no known benefit of the drug.

They must remain illegal. To do otherwise would be a position the FDA could never take. Like bringing back Thalidamide's use for nausea in pregnant women.

All athletic programs at all levels are very correct to ban all illegal drugs in their sport. Street drugs and anabolic steroids to be sure.

I can remember in high school our football and basketball coaches forbidding us to smoke and drink alcohol. Eventually of course demon Rum became a part of our lives, but many of us were spared serious disease by never smoking. To those coaches I say thank you and Amen.

Anabolic steroids work. They build muscle. They kill and harm health. But as the Olympic physician taught us during our NCAA training, if a world class sprinter could take a tenth of a second off his 100 meter time by eating rabbit shit, he would eat rabbit shit every day. The mindset of high performance athletes.

Ergo. Illegal. Level playing field. I would hate for my daughter to have to take anabolic steroids at Purdue to compete effectively with her opponent at Illinois. Not worth the negative health effect of the drug. Very profound a good reason for the illegality.


Lawrence Indyk has set out rather better than I the same objection I raised when commenting on Prof. Becker's blog. The issue shows the limitation of economic analysis. Though it's perfectly possible to analyse our sports watching/participating in economic terms, in so far as we can assess what people are willing to pay for the privilege of either, and the monetary rewards on offer for competing in sport, there's more to it. In particular, we harbour all sorts of romantic notions about sport, and maybe we have other notions about patriotism when watching national teams. Our subjective enjoyment might include fantasies about what we ourselves could achieve, or admiration at those who have the dedication and ability to go further than us. These sorts of ideas get militated when we find our heroes are taking drugs, which we don't find the result of hard work or talent at all.


"loss of feminity. Facial hair. Lowering of the voice. Infertility."-Frederick Hamilton

Assuming that, as other posts in these two threads have pointed out, the health affects aren't as harmful (might not be a good assumption, but one I'll make for this post),
on what grounds should women have to be fertile and feminine? Or have no facial hair, for that matter? Are women merely sexually attractive objects for men to drool over or do they have their own goals, values and ambitions irrespective of whether men desire them? If a woman wants to dedicate their lives to sports, why not let them?

Martin Bingisser

You make great poitns about Becker's argument. I think that doing squatting 700 pounds is more harmful to one's knees in the long run than many doping practices.

However, Thomas Bishop makes a great point in response to your argument. While it could be argued that there is no relative gain in value from a 200-pound lineman to a 400-pound lineman, there is a relative gain from a 10.5 second 100-meter dash to a 9.77-second time. Many sports have objective measures of performance that refute one of your points.

In response to your role model argument, drugs are just one area of sport where the athlete serves as a role model. Should we require all athletes to apply appropriate grammatical rules whenever they speak? Shouldn't they send a message to children that education is important? There are several areas where athletes influence kids and we do not intervene, so why should we intervene on this issue.

Further, while I may grant that anabolic steroids are harmful (although this is debateable), many of the banned doping practices do not harm one's body at all. Blood doping is a great example. Many of the other banned stimulants also have either no or relatively little negative effect on the body. For instance, caffeine used to be a substance banned by WADA. If some methods are to be banned, then we need to rethink which methods should be banned.

David  Garfield

I enjoyed your analyses, but I am a bit surprised that you left out what I consider to be an important reason for banning and policing "doping" in its many forms - doping substances are enormously expensive and, this is especially true of international competition, not availible to all atheletes. Doping thus helps to maintian a cycle whereby successful atheletes are the only ones able to afford to tools for continued success.

Granted, a similar argument could be made for most aspects of training for atheletic competition, and perhaps an argument could be made for legalizing doping for some atheletes as steroids are cheaper than the best weights. But, well, there has to be lines somewhere.

Mary Katherine Day-Petrano

"For this to apply to the legal profession, I think there would have to be some sort of mental doping that can enhance the ability of a lawyer to think faster, read more effectively, concentrate more strongly and for a longer period of time. There would also have to be tools to enhance productivity."

Yes, this does exist -- it's called Ritalin and Strattera, the misuse of which numerous SAT test takers have discovered. Additionally, speech recognition assistive technology, a specific reasonable accommodation utilized by some individuals with disabilities, enhances productivity (although most of the legal profession has not yet discovered this advantage).

"The only thing I can think of that will accomplish all these productive measures is experience - having done the research before, having written on the subject, and having seen the questions before." Well, ... savant autism helps a lot, considering the hyperdeveloped 100% photographic memory possessed by higher functioning autistics, a very useful advantage in oral argument -- a natural advantage, not created by doping.

"Should we require all athletes to apply appropriate grammatical rules whenever they speak?" The Middle District of Florida already requires such protocol under pain of extreme judicial displeasure. That is why, unlike horse sports or other sports, auxiliary aids such as speech recognition assistive devices, grammar check, and spell check are absolute necessities.

Doping athletes and horses, however, are a whole different matter.


Lifting substance bans might make sense if fans wanted to see their favorite sport become partially a contest of how willing the participants are to risk damage to their reproductive and other organ systems by taking the most dangerous drugs. After all, even without the bans, some players would still refuse to take harmful substances, resulting in relative rewards for the athletes willing to ingest anything. If the fans found the will to take these drugs as admirable or interesting as say, the will to dive headfirst into home plate, they might want the bans to be lifted. But for whatever reasons – moral, health policy, an appreciation for “natural” athletic abilities – most fans don’t seem to want willingness to dope to be a factor in competition, alongside other factors like speed, reflexes, and willingness to train hard.

I also don’t think fans are particularly interested in the skill required of an athlete to implement the most effective doping regime. The logic here is related to why, for example, pitching with Vaseline is disallowed. Unlike taking steroids, there’s nothing objectionable this behavior on its own – it’s just that fans don’t want baseball to include the skill of producing and applying foreign substances to the ball. It’s likely they’d find the addition of that particular skill to be distracting from the other skills that they want to see displayed.


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