Criminalized Doping and Sending Cheaters to Jail

Earlier this year, the German government passed draft legislation that would make it illegal for athletes to use performance-enhancing drugs inside Germany's borders. The legislation should go before parliament and become law later this year. When it passes, Germany will join a growing list of countries—like France, Italy, and Austria—that have criminalized doping. Even foreign athletes who test positive inside Germany could face jail time.

Criminalizing doping is a part of the anti-doping zeitgeist—especially in Europe. Most European countries have already criminalized the distribution of performance-enhancing drugs, so making the users criminals is—in a 1980s, DARE to just say no-sort-of-way—the logical next step. But countries outside Europe may soon join the list, too: Qatar, a country with a large and growing significance in the world of sports, has drafted similar criminal legislation.

This kind of legislation is often sold as a way to protect the "purity of sports," a motivation that is tantalizing—although misguided—for many fans and administrators who view sports through a traditionalist lens. But the laws serve another purpose, too: they close a gap law enforcement has been trying to close for a while. The police have long viewed doping as a kind of sports fraud, but until now they've been able to do much about it.

You're probably already thinking about cycling, so let's start there with an example. Say an athlete wins a big race and thousands of dollars. Now imagine that athlete later tests positive for doping while the second placed athlete tests clean. Is the second placed athlete a victim of fraud?

Clement de Maillard, a case officer at Interpol and the liaison to the World Anti-Doping Association, thinks so. "We note some criminal behavior among athletes regarding the financial stakes of sport," he said last month by phone. "And the way they cheat? I consider the way they cheat as a type of fraud."

There are multiple challenges to prosecuting a fraud case over, say, race winnings. For one thing, it's difficult to draw a clear, bright line between drug use and victory. There are too many other variables, like talent, that could also explain why one competitor beat another. It would also be difficult to define a victim in these cases: Is it just the second place competitor? Is it every competitor who participated?

Then, there's the issue of incentive, at least in civil cases: "We believe that the difficulty in proving fraud may dissuade lawyers from pursuing a fraud charge just as the lawyers do not go after prize money because the amount they might get is not worth the effort," explained the WADA's director of communications Catherine MacLean in an email to VICE Sports. "Bottom line: It would cost more to litigate the case than the amount that could be recovered if you won the case."

At its root, the desire to pursue fraud in sports has to do with fear over the influence of organized crime in sports. In October, David Howman, the Director General of the World Anti-Doping Agency, said that "organized crime controls at least 25 percent of world sport in one way or another," a statement he stood by when we spoke on the phone last month.

De Maillard said he couldn't confirm the 25 percent rate "on the behalf of Interpol." "It's very difficult to estimate this involvement, but we know that organized crime is always attracted to vulnerable areas where there are huge financial stakes. We know that organized crime is present in sports, match fixing, manipulation of matches, corruption. We also know that some organized crime groups use sports for money laundering. We know that they use very sophisticated networks for cheating, especially for doping."

It's this interchange between athlete and organized criminal networks that law enforcement finds so alluring: "The behavior [of] these athletes who want to cheat can be seen as a criminal behavior—a very similar behavior," said de Maillard. "You know, they use some kind of network to hide their cheating. They use some financial networks, dark networks, to protect themselves. They tend to avoid police. This kind of behavior can be seen as a kind of criminal behavior. To me it's a kind of fraud. Doping in professional sports is a fraud."

"From my perspective and from WADA's perspective [pursuing fraud is] something that can be enhanced—it's something that we have to develop to fight against doping," continued de Maillard.

Although not specifically targeting fraud, laws like Germany's nevertheless appear to be an enhancement that could help de Maillard. In a subsequent interview, de Maillard explained that it's Interpol policy not to comment on national laws, but he did say his vision isn't necessarily to criminalize athletes but rather to get at the networks that exist behind the athletes and capitalize on cheating to make money. Countries with anti-doping legislation make that goal easier. Law enforcement doesn't even need to wade into the difficult, uncharted area of fraud in sports. The barrier preventing the legal system from going after cheating athletes and then leveraging that position to pressure the shady networks that enable doping no longer exists.

This doesn't mean the new trend in criminalizing doping is especially ethical or particularly good for sports. To begin with, the way these laws define illegal substances seems problematic. Whether banning the distribution or the use of performance-enhancing drugs, much of the legislation in Europe appears to reference the WADA's list of banned substances, basically making the substances on the list illegal. The problem with this is that not all the listed substances have been proven to actually enhance performance. As VICE Sports' own Jorge Arangure recently wrote, "Currently, athletes bear the burden of proof to show that any chemical is not performance enhancing instead of having the legislating organization prove that it is."

But even if the effects of the WADA substances were all proven to enhance performance, the anti-doping laws still essentially double down on the idea of sports as "pure," which is a pretty conservative moral basis for criminal legislation—especially in Europe, where recreational drugs are largely decriminalized. It also basically puts into law the strange dichotomy where we typically accept technological enhancements as part of an evolving game but see chemical enhancements—a different kind of technological advancement—as cheating.

It's hard not to take this all in and wonder about the other, real War on Drugs. The war on performance-enhancing drugs seems to be gathering steam in a worrying way, though it will never operate on that same scale or with the same resources. Nevertheless, parallel issues exist: the prosecution of nonviolent offenders and the inability of politicians to oppose strengthening legislation, lest they appear "soft on crime."

The most worrying similarity between the two problems—recreational and performance-enhancing drug use—is what the powers that be see as the solution: not a regulatory one, but a punitive one. Yet all of this—the fraud, the jail time, the influence of organized crime in sports—could be solved if we just change how we think about doping and how we regulate what is "fair." If we don't, we're looking at a sports world where athletes are incentivized—by millions of dollars, fame, and competitive desire—not just to win, but to break the law.