Sports Law Blog
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Thursday, April 21, 2005
Performance-Enhancing Surgery and Sports
Last month, I wrote about what could possibly be the "next generation" of cheating in sports: medical and biological enhancements through surgery (3/28). William Saletan has also explored this, wondering why LASIK, the laser surgical procedure that improves eyesight, is not also considered cheating ("The Beam in Your Eye," Slate, 04/17/05).
The sports establishment is obtuse to this revolution. Leagues worry about how you might doctor bats, balls, or clubs. They don't focus on how you might doctor yourself.
On the one hand, such corrective surgery can be distinguished from using performance-enhancing drugs and supplements. Surgical techniques, rehabilitation options, nutrition and diets, weight training, equipment: all are technologies that have made sports far different games from 50 years ago, or even 10 years ago. Is surgery that enhances vision all that different from new surgical techniques that can help prevent major damage to aging joints? How different is it to pay a doctor to fine-tune your eyes versus paying personal trainers and nutritionists to fine-tune your body? In contrast, drugs such as steroids produce unnatural levels of hormones in the body so as to move past mere "fine-tuning."
Second, and perhaps more important, is the "role model" difference. Professional sports (and legislative bodies) are concerned not as much with the prospect of "cheating" in athletic competition, and more with the danger that younger athletes will follow the example of the pros. Use of performance-enhancing drugs among high school athletes has been well-documented in the past few months, which indicates the ease in which they can be obtained. Teenagers can also walk into nutrition stores and emerge with a number of dietary supplements, not all of which are free from side effects. At this time, however, corrective eye surgery is not easy to obtain. The procedure is costly (several thousand dollars) and not all doctors will perform it on someone with good vision. In addition, most (reputable) doctors will hesitate, if not refuse, to perform a surgical procedure on a minor without parental permission.
Despite these differences, compelling arguments exist for leagues to consider regulation of bio-technological "enhancements." Today, the enhancement is of eyesight. Perhaps the next enhancements will be of muscle, bone structure, pain threshold, or joints. Is the next generation of "super-athletes" around the corner? I am not one to doubt technological advances, but what, if anything, should the leagues do to curtail it?
If regulation were to occur, the most rational line to draw seems to of "correction" versus "enhancement". An injury should be able to be corrected: ligaments re-attached, poor vision improved to 20/20 (through lenses, surgery, or both), bone chips removed. But the line should be drawn at "enhancements": improving eyesight to better than 20/20, "bionic" surgeries, replacement of organic body parts with synthetic parts. Some of these improvements may seem more appropriate for science fiction stories, but so too did vision correction thirty years ago.
Obviously, this line is hard to draw, and even harder to implement. When does a procedure or device cross the line from "correction" to "enhancement"? If a player blows out his knee, should the reconstruction procedure attempt to restore the original condition or use all available techniques to make the best knee possible? Even if the standard is the "average knee," this standard will change over time. What happens when it becomes standard, at least among wealthy individuals, for vision to be corrected to 20/15? All of these factors raise obstacles to defining and implementing regulations.
In addition, there is the problem of penalty. If a player has undergone certain enhancement surgery, perhaps as a child or in response to an earlier injury, an outright prohibition would mean a lifetime ban from that sport. The only alternative would be additional surgery, to undo the correction, and "de-enhance" the player. Does the PGA want to ban Tiger Woods because he cannot "uncorrect" his vision? Should an athlete be punished for his parents taking the whole family for muscle-strengthening surgery? These questions have no answers, at least not now. Perhaps there can be two leagues: a "super-athlete" league and a "traditional" league. Or maybe technology will not continue to improve at this exponential pace, though there are no signs of innovation slowing down.
It seems that leagues will have to confront this "problem" of medical technology improvements and the inequalities it can cause. Laser eye surgery may not be cheating, but leagues should begin to consider the potential for future innovation and the impact these "enhancements" could have on the world of sports.