Germany's Absurd New PED Law and Why It Won't Fix Anything

Germany is getting tough on performance enhancing drugs. Not German sports organizations. The actual German government. According to Outside Magazine, a bill expected to pass through the country's parliament next spring would punish both domestic and foreign athletes caught using banned substances with prison terms of up to three years. While the law would not apply to amateur athletes, it would cover the "approximately 7,000 elite athletes" already subject to the rules of Germany's National Anti-Doping Agency.

The announcement of this law comes almost exactly one year after International Olympic Committee President and 1976 West German Olympic foil fencer Thomas Bach delivered a speech on the necessity and importance of PED testing at the Fourth World Conference on Doping in Sport in Johannesburg, South Africa. Bach was adamant about the importance of strong anti-doping measures, and was clear that he expects national governments to adopt a harsher, more punitive approach:

"We need a better exchange of information between state authorities, the sports movement and the national anti-doping organizations. We expect governments to create better conditions for cooperation with sport, especially in terms of exchange of information. This also means that the state authorities must do more to severely punish those behind the scenes in doping cases: the dealers, the agents, coaches, doctors, scientists and all others involved in doping activities."

Germany is not the first country to make sports doping a crime. Italy did so in 2000, with a law providing up to three years imprisonment for PED offenders. Six years ago, France toughened its laws to allow for one year in prison for athletes caught doping. Belgium and Sweden also have enacted anti-PED laws, and Austria will send a similar measure to its parliament in 2015.

The IOC and World Anti-Doping Association have forever attempted to present a tough front on performance enhancing drugs. Today, many European and other international sporting groups support heavy penalties for a first doping offense—in some countries and leagues, a two-year ban is standard. There is little else sporting institutions can do without help from the state, which makes jailing athletes the logical next step for these groups.

Of course, this logic is completely insane.

As Charles Pierce detailed at Grantland this week, and as I detailed here at VICE Sports in September, doping has been a part of sports since, well, forever. Whether it's Thomas Hicks "doping" with egg whites and strychnine in the 1904 Olympics, St. Louis Cardinals team doctor I.C. Middleman providing his team with amphetamines throughout the 1950s, or the steroids and HGH that pervade today's scene, athletes and the people who pay their salaries have always embraced-and covered up-chemical boosts. Anything for an edge.

As a result, doping has become a practical necessity at the elite levels of sport. And again, this isn't new: Dr. Lawrence Golding, one of the foremost experts on doping in the 1970s, once told reporters "I don't think there's any top rate athlete in the world who is not or has not been on amphetamines or steroids." Today, doping remains standard practice in individual sports like track and field, cycling, and weightlifting. American baseball players are still busted constantly for use of steroids and amphetamines. And does anyone think the National Football League would exist in its current size and (literal) shape without copious PED use?

For athletes, the economic pressure to dope is overwhelming: where the average Bundesliga player earns just under $30,000 per week, not a single player on a fourth-division German soccer team like Ulm will earn more than $5,500 in a month. Two years ago, Sports Illustrated'sTom Verducci wrote about four pitchers who were teammates on the same minor league team in 1994. One of them, Dan Naulty, used steroids to "transform himself from a fringe minor leaguer" who threw 86 mph into "a massive big leaguer" who used 50 pounds of PED-fueled additional bulk to throw 96 mph. He made it to the major leagues, pitched for a championship-winning New York Yankees team, and cashed a World Series check for $307,809. The other three pitchers did not use steroids. None made it out of the minor leagues. None cashed a check for anything near $300,000.

People have done much worse than use PEDs, and for much less money.

But it's not just the money. Wali Jones, a former NBA player who became an anti-drug activist in the 1970s, testified before a U.S. Senate Committee in 1973 to the effect of the "intolerable pressure to produce" that is placed on athletes. "The young people," Jones told the senators, "are forcing themselves to become the best, and this is causing a lot of drugs in high schools and colleges." We often forget this, but most athletes fail. When failure is not an option, athletes often feel there is no other choice but to turn to drugs.

Golding noted this attitude in his work with athletes. "As the bodies that control athletics become more dogmatic in their disapproval of drugs and mores persistent in their efforts to curb their use," Golding told the same Senate committee, "the athletes have become more certain that drugs must affect performance advantageously."

Dr. Charles Yesalis is Professor of Health Policy and Administration, Exercise, and Sport Science at Penn State University and has done extensive research on the history and enforcement of sports doping laws. Referring to laws that can put athletes behind bars, "I have mixed feelings about such laws," Dr. Yesalis told me. "Prosecuting the people who distribute drugs, I strongly believe in that. But when I think of these laws, well, that would be like arresting and prosecuting a movie actress for some type of cosmetic surgery because she is not what you think."

Yesalis says fans are angry because "it's a false front." His response? "Yeah, well, life is full of false fronts."

"Other performers" like rappers and movie actors, Yesalis continued, "are probably every bit as much role models or greater role models than athletes. So why wouldn't you prosecute them for using drugs?" As VICE Sports contributing editor Patrick Hruby reported at Sports on Earth earlier this year, the use of steroids and other bodybuilding drugs have skyrocketed in Hollywood. Former BALCO mastermind Victor Conte told Hruby, "[PED use is happening in] more than just sport. Rappers are doing this. They're all ripping their shirts off with six-pack abs. In mainstream movies and action hero type stuff, it's rampant." Moreover, PED use has become increasingly rampant in mainstream society: witness the rise of hormone-dispensing "anti-aging" clinics and prime-time television ads for testosterone replacement therapy.

And yet the do-as-we-say, not-as-we-do race to test, punish—and now, potentially imprison—athletes continues. At what cost? To what end? By the time the anti-doping community begins implementing tests for one drug, athletes and the doctors on their side have either developed a way to mask the drug or moved onto a new substance altogether. Any real effort to enforce the pending German anti-doping law (or any of the other existing laws in Europe) will come with huge expenses. As Bach said at Johannesburg, the IOC alone spent $1 million on pre-Olympics testing for the Sochi games, and "many millions of dollars will be spent on building and running laboratories, analyses, and services."

But these expenses are not supposed to be seen as a deterrent. "To be very clear, dear colleagues, ladies and gentlemen, these millions of dollars are not expenses," Bach said. "They are an investment in the future of our sport."

As athletes continue to beat currently available tests, the anti-doping establishment has pushed for more and more invasive processes to test athletes. The German football association announced in May it would introduce match-day blood tests for its athletes. In the case of many sports leagues, without union protection, these testing programs are forced on the players without their say—a gross violation of their privacy rights.

The typical response to the assertion of the athletes' privacy rights is, "If the players have nothing to hide, why would they be against random drug tests?" Marvin Miller, MLB Players Union executive director from 1966 to 1983, was asked this question in 2002. His response: "I have to say that it constantly amazes me how willing members of the press sometimes are to agree with the baseball owners that players should no longer be treated as citizens." Miller also called the IOC's system of random testing "an absolutely outrageous violation of a person's individual rights and should be absolutely unacceptable under any circumstances."

If years of anti-doping efforts have accomplished anything, it's been to prove that testing does not prevent athletes from using. Tests don't clean up the game, they cost millions of dollars, and they routinely violate privacy rights. Will adding jail time to the sentence change anything?

"From a logic standpoint," Dr. Yesalis said, "I don't follow. If they really believe that they're attempting to preserve the purity of sport, it never existed in the first place, if you read the history of sport. I'm kind of bewildered." Indeed, when it comes to cleaning up sport, this new German law will be just as ineffective as the myriad laws, tests and sanctions that have preceded it. The threat of incarceration has never made prohibition more effective. It merely creates a lucrative black market and incentives to hide drug use, all while making the personal lives of athletes and those around them part of state police business.

"It's all about the athletes," Bach opened his speech at Johannesburg, before swiftly correcting himself. "To be more precise: it's all about the clean athletes." And in closing, Bach urged, "For the sake of the clean athletes, and all of us, I hope that our common zero-tolerance commitment in the fight against doping will be the hallmark of this 4th World Conference on Doping in Sport."

Sports doping is a real problem. Scrapping and clawing for a miniscule amount of well-paying jobs, many athletes have little practical choice but to turn to an unregulated drug market. They risk their health and future well-being on these substances because, what's the alternative? There's no money and no medals in finishing last. The IOC and men like Thomas Bach offer their "common zero-tolerance commitment" to athletes who choose not to dope, but fail to offer anything else—like a bigger share of the IOC's billions—that would make that choice sustainable. The added threat of jail time proves that the anti-doping fight in Germany, as elsewhere, is not about athletes at all, not even the clean ones, but rather about the unchecked power that groups like the IOC wish to wield over them.