Written By Anushka Tatia
A. Introduction: The Historical Background: Doping in Competitive Sports
Doping traces its history back to the beginning of organised athletics. Ancient Greek athletes looked for ways to enhance their performance, thus early recognition of the attractiveness and promise of performance enhancement. It was only in the middle of the 20th century that doping became a sophisticated science with performance-enhancing drugs becoming an almost integral part of elite sports. The epoch witnessed the use of anabolic steroids and amphetamines in stealth. It later gave the world several infamous cases, most recently, the death of the British cyclist Tommy Simpson[1] due to “amphetamine use” in the year 1967.
The incident was just enough to raise the entire voice of the world; as a result, an anti-doping agency took place. In 1999, the World Anti-Doping Agency was inaugurated for the standardization of anti-doping policies to maintain athlete's health. The goal of the World Anti-Doping Code[2], developed by WADA, is to achieve a cohesive, equitable set of rules for sport and restore clean sports throughout the world. So far, the challenge has been more than initially anticipated. With a new mode of cheating identified each day or two, the ingenuity of athletes, coaches, and doctors to outmanoeuvre each advanced step of regulation taken keeps pace.
In anti-doping, the most apparent contradiction would be one between testing vigorously and protecting the rights of athletes. Indeed, it has not only detected cheats using the biological passport system, but it also created concerns over privacy and ethics. For instance, regarding the Indian wrestler Narsingh Yadav's case[3], whereby Yadav claimed that banned substances were put in his food, proof of intentional doping was impossible. When the stakes are as high as they are now, suspicion alone can destroy the reputation and the career of an athlete.
B. The Iron Fist of Strict Liability: WADA's Article 2 and Its Extensive Implications.
Perhaps one of the most debated aspects of contemporary anti-doping regulations is the strict liability principle outlined in Article 2[4] of the WADA Code. Though it forms the core and rallying point in fighting doping, it has gigantic controversy over it. To that effect, the truth for the athletes is being presented: the mere fact of a prohibited substance present in the system justifies the infringement, not depending on the intent, fault, or knowledge. This principle breeds what many view as the only just but cruel standard that treats athletes as strictly liable for any substance that enters into their bodies, even against their will. The effects of this kind of approach are diffused to every single part of the sporting fraternity and usher in a culture of vigilantism and perennial worry for the athlete[5].
It is the human cost of a zero-tolerance approach that manifests in the case of Alberto Contador, for instance: Alberto Contador[6] is Spain's champion cyclist who tested positive for clenbuterol in 2010. Contador's Tale of Woe is a clear instance of how a notion of strict liability would, in certain circumstances, conflict with notions of justice and fairness common man might understand. He was disqualified from his 2010 Tour de France victory, not on account of a positive test but because of minute quantities detected, and in a case that caused shockwaves to reverberate throughout the sporting community and has demonstrated how even the most plausible explanations and circumstantial evidence carry little weight against the immutable standard of strict liability.
This inflexible stance on violations for doping creates an intriguing legal contradiction if examined under Article 10 of the WADA Code. Wherein Article 2 leaves little room for flexibility while deciding upon violation, Article 10 injects a notion of flexibility into the structure of the sanctions. Indeed, one may say the doping paradox, in this regard, involves strict liability but also avenues of redemption. An athlete technically found guilty may be still reprieved on grounds of considerations by Article 10 on mitigating factors. This seeming paradox is useful practically because it is recognized that though it is important to hold the line against doping, the nature of the modern game dictates a measure of latitude in terms of punishment.
C. Genetic Enhancement: A New Era of "Superhuman" Athletes
Looking ahead, sports could soon be changed by genetic enhancement technologies like CRISPR-Cas9[7] and prime editing, something many previously believed was only possible in science fiction. Unlike traditional doping, genetic editing permanently changes an athlete's physical attributes, theoretically allowing an individual to run faster, jump higher, or endure greater pain without the need for additional substances. The implications are far-reaching; gene doping doesn't just add an unfair advantage—it changes the very definition of what it means to be an athlete.
The CRISPR breakthroughs are much more recent and have taken genetic modification to unprecedented extents with the ability to fine-tune DNA editing on a molecular level. Techniques such as prime editing - described by Johnson et al. (2019)[8], are even more sensitive, bringing genetic modifications beyond the discernment of distinguishing them from natural variations. With such fine control, genetic doping could allow athletes to possess characteristics similar to those evolved by high-altitude populations, such as enhanced oxygen-carrying capacity or increased muscle density. An athlete could potentially pass a doping test simply because their modified genes look natural under current testing standards.
This capability raises unprecedented questions about the purpose of sports and athletic authenticity.[9] What if genetic modifications enable athletes to perform beyond what is considered normal for humans, thereby making them superhuman athletes? Should we celebrate the natural limits in sports or allow sports to become competition augmented by human choice? This debate questions the nature of sport and places before us a new and potentially disturbing reality: that is, the boundaries of what it means to be human may no longer be confined by nature but by human choice.
D. The Price of Enhancement: Who gets genetic technology?
Genetic enhancement sounds appealing, but at present, it remains unaffordable and accessible to elite athletes from an economically better-off background or nation. This socioeconomic feature of genetic enhancement may introduce inequalities in competition, in that financial privilege determines more often the success of an athlete as much as training and talent. Do you think that in this world of elitist sports division-not merely by skills, but by wealth as well-athletes from the lower rungs of society have, in effect, been closed out of competition? Would it then still be fair play?
This may split sport, where success is dominated by genetically enhanced athletes, and, as some would say, the genetic elite. If genetic enhancement is allowed entry into competitive sports, governing bodies will have to decide how to ensure access is fair or risk creating a biological class system that distorts the meritocracy of sporting competitions.
E. The Psychological Frontier: Identity in an Enhanced World
The debate over genetic enhancement transcends the physical into psychological territories of athletic identity and mental well-being. In such scenarios, athletes who undergo genetic modification will be lost in new psychological territories, raising very deep questions about whether they have authentic achievements or not, and questioning their basic sense of self. This dimension adds psychological depth to the ethical debate, which has largely remained unexplored in debates on genetic enhancement in sports.
These psychological challenges are made apparent by the internal battles of athletes, who went through genetic enhancement to enhance themselves. Thus, while breaking multiple world records in different sports, privately they do somewhere fight the question of whether or not the accomplishments were truly theirs. The experience is reflective of a larger phenomenon that sports psychologists are only now beginning to understand.
F. The Environmental Impact: Sports in the Anthropocene
As we ran faster and harder to push beyond boundaries on human performance, there was a critical missing dimension of genetic enhancement: its footprint in the environment. This calls for significant resources and energy consumption in development and implementation. An increasingly large environmental burden pertains to the advanced facilities needed for genetic enhancement procedures, the intricate systems that preserve modified genetic material, and the complex monitoring infrastructure. If an environmental cost is charged for this pursuit of excellence in athletics, important sustainability questions are raised.
Besides energy consumption, there exist environmental concerns. There is biosafety associated with biological wastes produced by failed genetic modification experiments. The sports industry, then, needs to balance responsibility for environmental stewardship and technological advancements with increasing penetration of such technologies. This adds another significant dimension to the ethical debate on genetic enhancement in sports.
G. A Global Cultural and Religious Divide
There are sharp cleavages along cultural and religious lines about accepting these technologies of genetic enhancement. Some societies have welcomed the technologies as part of the logical next steps of human evolution; others regard them as fundamental violators of the natural order or the plan of a divine creation. Islamic scholars[10] have voiced extremely deep reservations about genetic enhancement, alleging that it infringes upon the principle of human dignity. This tends to make Buddhist views argue that the pursuit of genetic enhancement represents a continuation of humankind's sufferings in attachment to physical performance.
The competing visions create a wide range of complex problems in international sports governance. This situation places cultural and religious differences that must be handled in international competitions. The current scenario may bring out regional sports leagues with varying policies for enhancements, cultural boycotts of international games, and new forms of sports diplomacy focused on genetic modification policies. Religious exemption could influence the regulatory regime in international sports, further complicating it.
H. The Role of Artificial Intelligence in Genetic Enhancement
There is now the possibility of reaching a new frontier in sports science through a convergence of artificial intelligence and genetic enhancement technologies. Predictions are now possible in AI algorithms regarding optimal alterations in genes for specific types of sports, analysis regarding long-term impacts on health, and tracing patterns within genetic data towards maximising performance. This wedlock of AI and genetics provokes deep questions about what the future of human athleticism will be. Are we taking steps toward a world in which AI systems will design an athlete perfectly optimized at the genetic level? This is not just about performance enhancement; the breadth of implications of this technological synergy is far-reaching.
I. Evolution of Categories for Competition
The paradigms of sports classification, by gender, weight, or age, become anachronistic in the face of genetic enhancement. As the distinction between ability derived from nature and that from enhancement becomes increasingly obscure, sports organizations must rethink how they group and organize competition. Classification by degree and type of genetic modification might one day lay the foundation for a far more complicated competitive landscape. It could well rewrite the way we think about and experience sports competition.
J. The Legacy Question: Rewriting Sports History
To date, no challenge has been as profound in sports history and record-keeping as that faced by genetic enhancement. As enhanced athletes begin to shatter existing records, it becomes increasingly difficult for sports organizations to preserve a meaningful connection between past and future accomplishments. For example, if a genetically enhanced swimmer surpasses the Olympic records set by Mark Spitz or Michael Phelps, will these new records be regarded on the same level as the old ones, or will there be a need for asterisks, separate record books, or entirely new categories?
A more radical solution has been proposed by certain sports institutions: keeping separate histories for natural and enhanced athletes. Again, this creates its difficulties. The subtle, multigenerational nature of genetic enhancement renders this kind of classification problematic. The intergenerational impact of genetic enhancement arguably presents the greatest challenge to the promise of fair competition in sports.
K. The Economic Landscape of Enhanced Sports
The financial repercussions of genetic enhancement in sports go way beyond individual access to technology. There is a nascent ecosystem for new economic dynamics, encompassing specialized insurance markets for genetic modification, new investment opportunities in enhancement technology, and changed athlete contracts that reflect the rights of genetic manipulation. The influence of enhanced athletes on marketing and the consequences for betting markets introduces a new dimension to this economic landscape. These economic factors are expected to alter the balance of power among athletes, teams, sponsors, and technology providers in ways that we are only starting to grasp.
L. National Security and the Enhanced Athlete
The potential military applications of genetic enhancement technology have turned sports-related genetic research into a matter of national security. Countries increasingly look at sports enhancement technologies as possible military resources, creating new dimensions of international competition and regulation. This dimension of the military adds another layer to the governance of genetic enhancement in sports, potentially leading toward stricter international oversight and new genetic enhancement arms races.
M. The New Paradigm: The Post-Human Athlete
As we look to the future, the question is whether we should permit genetic enhancement changes to determine how we are going to survive a post-human sports world. Hybrid events could be newly designed sports meant for enhanced abilities, or virtual competitions in which genetic enhancements can be simulated, thereby changing athletic competition altogether. This change could lead to competitions that not only our understanding of human athletic achievement but also the sport itself.
N. Redefining Consent: Genetic Enhancement in Youth Sports
Pressure to succeed in sports has catapulted young athletes into rigorous training at ever-younger ages, largely at the demand of parents, coaches, and sports institutions. Now add the probability of genetic enhancements in youth sports, and concepts of consent, long-term health risks, and more come screaming into the foreground. Does the child have a say in the matter if the parents decide to genetically alter the child to make them better athletes? Should a parent have the right to change his or her child's DNA to make him or her a better athlete?
This concept is based on the concept of consent. Genetic alteration of minors raises questions about bodily autonomy where new developments might alter bodily and mental development in unpredictable ways. Would genetic changes be a form of coercion, compelling young athletes to seek genetic alterations simply to keep up with their peers?
P. Ownership of Altered Genes: A Legal and Ethical Quagmire
Genetic enhancement has introduced complex intellectual property issues that further muddle the waters of competitive sports. Who owns the modification—the athlete, the scientist, or the corporation funding the research—if an athlete's abilities are enhanced through patented genetic technology? Patents[11] for CRISPR technologies are hotly debated as several institutions fight to assert their control. This raises, however, the underlying concern in this issue: genetic enhancement becomes the ground for patents. With the athlete having the benefit of genetic enhancement, that opens the way to entanglement with claims based on IP rights over one's modified DNA and having the companies demanding royalties and even rights. That would not only commodity one's body but open up questions about autonomy and ownership with the permission of what modification would be allowed to a human being.
Q. Beyond Detection: The Regulatory Challenge and Privacy Paradox
WADA and others are for the first time in this situation. Synthetic compounds were always designed to be detected through blood tests, but genetic changes are different. They integrate into the athlete's natural biology, making it extremely hard to detect. Dr. Mario Thevis and his team[12] have advanced efforts toward detecting CRISPR usage by identifying Cas9 enzymes in plasma samples. However, these are highly embryonic methods, and genetic engineering at this level is very far from being detected. Until now, genetic enhancement has been a type of regulatory black hole. The anti-doping strategies that are in use these days cannot handle such modification of the human genome near the natural course of evolution. This includes the case with the Russian figure skater Kamila Valieva[13] in connection with a doping scandal at the 2022 Winter Olympics, which points to the failure of the existing scheme to manage matters, especially where minors are involved. It is much more complicated in the case of gene doping and goes beyond the question of detection; it is even the philosophy of how doping regulation should be approached. Even matters of privacy come into play in this regard.
Genetic testing to be utilized in anti-doping efforts would require massive harvesting and monitoring of athletes' DNA invasive step by all accounts that verges directly onto core human rights. Imagine an athlete's future where one would have to surrender genetic information not only about themselves but also about their family members, to create a genetic profile. This level of monitoring has very grave implications, creating what may be called a privacy paradox where the need for fair play demands a loss of personal freedom.
R. Towards a New Regulatory Framework
Recognizing these new challenges requires a new regulatory framework; one that is proactive instead of reactive and accommodative of a new reality in which genetic technology is ubiquitous. Priorities would include:
R.1. Privacy Protection Laws: Data protection should have strong laws that regard genetic privacy but ensure the sport is played fairly.
R.2. International Standards: Global standards meant to prevent enhancement havens where athletes change their bodies without oversight or any form of regulation in that regard.
R.3. Public Education: More awareness and education would ensure that athletes, coaches, and fans understand these risks and ethical issues.
Genetic enhancement will fundamentally alter the face of sports. The only question is how. Will we embrace change and rephrase the meaning of competition? Or will we fight to maintain an ideal of natural athleticism, knowing it may no longer be practical?
S. Conclusion: The Price of Progress
Competitive sports have always been about the pursuit of human excellence. However, as technology redefines the boundaries of human capability, we are forced to rethink the fundamental values that underpin our understanding of achievement. Genetic enhancement poses one of the greatest ethical and practical challenges in sports history. The stakes are higher than ever, and the decisions we make today will shape the future of human athleticism for generations to come.
As we navigate the new world, integrity and innovation have to be guiding principles, otherwise the spirit of fair play might drown in the sea of nature.
*The Author is a legal Scholar from Jindal Global Law School, India
(The Image used here is for representative purposes only)
References:
[1] Abt S and Tribune IH, ‘Drugs: A 1967 Lesson Unlearned’ (The New York Times, 14 July 1997) <https://www.nytimes.com/1997/07/14/sports/IHT-drugs-a-1967-lesson-unlearned.html> accessed 1 November 2024
[2] World Anti-Doping Agency. (2021). World Anti-Doping Code. https://www.wada-ama.org/sites/default/files/resources/files/2021_wada_code.pdf
[3] ‘Narsingh Yadav Controversy: Wrestler Gives His Side of Story’ (The Indian Express, 28 July 2016) <https://indianexpress.com/article/sports/sport-others/narsingh-yadav-gives-his-side-of-story-2939351/#:~:text=Narsingh%20tested%20positive%20for%20banned%20substance%20metadienone%20during,Authority%20of%20India%20administrator%20of%20conspiring%20against%20him.> accessed 3 November 2024
[4] Play Fair. (2021). NATIONAL ANTI-DOPING RULES, 2021 (As per revised WADA Code 2021). In NATIONAL ANTI-DOPING RULES, 2021 (as per Revised WADA Code 2021). https://indianathletics.in/wp-content/uploads/2021/02/NADA-India-Rules-2021.pdf
[5] Sharma, P. (2023). CONTEMPORARY ISSUES IN SPORTS LAW IN INDIA: A STUDY OF INDIAN CASE LAWS. ILE LEX SPECULUM, 1(1), APIS – 3920 – 0036. https://ls.iledu.in/wp-content/uploads/2023/08/V1I182.pdf
[6] Wynn, N. (2012, January 30). Contador’s clenbuterol case in brief. cyclingweekly.com. https://www.cyclingweekly.com/news/contadors-clenbuterol-case-in-brief-47454
[7] Ravi, V. &. (2024, June 12). What is CRISPR/Cas9? Vajiram & Ravi. https://vajiramandravi.com/upsc-daily-current-affairs/prelims-pointers/crispr-cas9/
[8] Johnson, W. G., Bowman, D. M., Tournas, L. N., & Maynard, A. (2019, December 10). We are not ready to deal with Gene-Edited athletes. Slate Magazine. https://slate.com/technology/2019/12/crispr-prime-editing-gene-doping-athletes.html
[9] Halweil, J. (2021, August 8). Gene editing: the future of the Olympics or a looming crisis? Interesting Engineering. https://interestingengineering.com/health/gene-editing-the-future-of-olymic-athletics-or-a-looming-crisis
[10] Unraveling the Islamic Perspective on Genetic Engineering. (2023, November 28). Religions Facts. Retrieved October 3, 2024, from https://religionsfacts.com/unraveling-the-islamic-perspective-on-genetic-engineering/
[11] Sherkow, J. S. (2017, December 19). CRISPR, patents, and the public health. https://pmc.ncbi.nlm.nih.gov/articles/PMC5733839/#:~:text=Patent%20issues%20surrounding%20CRISPR%2C%20the%20revolutionary%20genetic%20editing,Relatedly%2C%20insurance%20coverage%20for%20expensive%20therapies%20is%20waning
[12] Mansuri, M. (2024, August 2). Neuropriming and CRISPR techs are empowering “super athletes” | WIRED Middle East. WIRED Middle East. https://wired.me/technology/crispr-neuropriming-sports/#:~:text=Dr.%20Mario%20Thevis%20and%20his%20team%20are%20developing,key%20step%20towards%20detecting%20genetic%20modifications%20in%20athletes.
[13] Pells, E. (2024, September 12). “Stop that urgently.” Possible path to innocence for Russian skater was held back at WADA’s urging | AP News. AP News. https://apnews.com/article/olympics-valieva-doping-wada-d3366a485312904539c8605860bdf557
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