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Friday, October 09, 2009
Weekend Reading: Kooky Ideas About Steroids

I've uploaded my new essay on steroids in professional sports, Blue Sky Steroids, from a symposium on Sports & Criminal Law published by Northwestern Law School's Journal of Criminal Law & Criminology. You can download the essay free of charge here. Here's the abstract:
Performance-enhancing substance use has attracted considerable political and media attention. However, relatively little analysis of the reasons for regulating substance use in professional sports exists. Most of the ostensible reasons for regulating performance-enhancing substance use are belied by leagues’ inadequate commitment to the justifications in other contexts. Further, most of the methods of proposed regulation would be ineffective and unworkable. In place of the standard test-and-punish regime advocated by doping authorities, this Essay argues that performance-enhancing substance policy should be modeled after federal and state securities regulation. Instead of punishing use, regulators should require disclosure of all substances used, and punish only omissions and fraud of a material nature. The goals of a regulation regime would be better achieved without unintended negative consequences through a market approach based on minimum disclosure requirements.



I enjoyed your article, it brings up some key issues and I liked the theoretical approach of the “blue sky laws”.

I have a few observations and questions for you.

1. I agree with your assessment of the unlevel playing field. Sports are actually inherently unleveled, that’s why we are drawn to them. We either enjoy the dominance of a particular team, or the David and Goliath scenario that arises. College football is a great example, how many non-Michigan fans found themselves being able to turn off that game against Appalachian State?

2. To me, player health is perhaps the number one concern. It is not a coincidence that body builders and “pro” wrestlers are dropping dead in their early 40s. The only way to get around the player health issue would be to have physician monitored use/abuse. In my view, this opens a whole new can of worms, and takes us a bit off topic. Perhaps one of the reasons why “many athletes use substances at levels that do raise genuine health concerns” is because players are trying to stay undetected, and legitimizing the use/abuse would in fact lead to more health concerns. Just a thought…

3. Athletes as role models… Many times, we can do much, much better... Certainly not a compelling argument on this topic. The “fallen hero” argument was great.

4. Manipulation by gamblers, this one is tricky. I think it is more possible that athletes gambling rather than using/abusing steroids will lead to manipulation. That being said, there is a degree of truth to that point. Any illegal act by an athlete could potentially lead to manipulation by gamblers or organized crime. Not a very compelling argument for increased testing and punishment of steroids.

5. Fans don’t like tainted sports… I think you were right on point here, for the most part, we don’t care. Look at “pro” wrestling (sport or just entertainment, take your pick) for a prime example of this.

A few other observations…

Many substances used by players for performance enhancement (or at least the pursuit of enhancement) are either outright illegal or by prescription only. How do you suggest the league should handle a player admitting to the use of an illegal substance? I like the idea of the blue sky method, but wouldn’t you have to assume that many of the drugs used are taken off the controlled substance list in order for it to work? I can already see the line of AGs and senators demanding access to the athlete’s admissions of federal law violations…

A topic that has been debated on this blog before, and also noted in your article, is the collective bargaining aspect. I assume that your point here is that because you take the discipline aspect out of the equation, unions are more likely to accept this approach in the bargaining process. I’m not convinced that unions would consider it in their best interest for players to disclose what they are using to gain a competitive advantage (if any). It would certainly lead to more scrutiny by sponsors don’t you think?

Great read, keep up the good work!


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Anonymous rex -- 10/25/2009 3:57 PM  

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