In September 1999, the Human Rights Council of Australia convened the first international congress on Human Rights and Sport. The meeting occurred at a time when the concept of rights for athletes had nearly no legislative authority. In the same year, the World Anti-Doping Agency (WADA) was established, in part, as a response to the 1998 Tour de France doping controversies where police raided the houses of many teams of riders. In response to feeling treated like criminals, the riders staged a go-slow protest mid-way through the 17th leg of the race. In this case – and in others since then – athletes have walked a thin line between civil and criminal prosecutions surrounding doping infractions. At the Turin Games – affectionately renamed by some as the ‘Urine Games’ – the police and anti-doping authorities presented a joint effort to policing suspected dopers that, for some, signals a watershed in how anti-doping will now take place. Indeed, many within elite sport argue for criminal sentences associated with doping infractions, though the International Olympic Committee remains firmly against criminalising athletes. They just want them out of sport.
Since 2004, the legal strength of cases against athletes has risen as the burden of proof required to try athletes has been reduced from ‘reasonable doubt’ to ‘comfortable satisfaction’. For the first time in history, athletes can be disqualified for non-analytical positives – based on evidence from hearsay rather than an unequivocal positive doping test. This change in the law finds many athletes running away (sometimes literally) from competitions for fear of prosecution. Such events took place in Turin this year, when two Austrian athletes left Italy for fear of being the subjects of criminal investigation and the prospect of facing sentences of up to two years imprisonment.
It is in this context that questions emerge about athletes’ rights and the limits of legal authority exercised by social institutions such as sporting bodies. This problem is compounded by the increasing pervasiveness of an anti-doping culture. Within the USA, random drug-testing athletes in high-schools is receiving increasing sympathy (the Bush administration has set aside $15m in 2007 for this purpose) despite criticism from the American Academy of Pediatrics (2005) which doubts the effectiveness of testing as a deterrent. It is also complicated by the emerging discourse on the ‘doping mafia,’ which is quickly re-characterising the doping problem as critically about the peddling of illegal substances, rather than either concerns about health risk or fairness of competition (see Donati, 2005).
Now, the future promises techniques of genetic enhancement and selection for athletes, which exacerbate the problems they face and, more broadly, the increasing challenge facing the acceptance of enhancement technologies within society. On the approach to Torino, the synthetic substance ‘repoxygen’ was discovered as a possible doping method after the email account of a German Coach was investigated. Today, there is no test for repoxygen or any other gene doping related substance. However, in December 2005, WADA convened its second landmark meeting on gene doping producing The Stockholm Declaration, where various possible tests were discussed. Also, for the first time, they signalled a concern for how genetic tests for performance might be used to discriminate against athletes. This comes only one year after the first commercial tests for performance genes have been produced and introduced to several countries. However, despite strong warnings from the Australian Law Reforms Commission (2003) over the use of such tests, there is no regulatory framework to prevent their employment for sport and no mechanism for disqualifying teams who use them.
This paper explores the implications of [these] recent developments within the world of sport and how the genetically modified athlete can provide a model for considering how the first genetically enhanced human might fit into society. I argue that a conventional rights-based approach does not adequately address this case, but that private practices, such as elite sports, do not find themselves subject to broader arbitration on rights related to genetic technologies. To this extent, sports authorities can set their own rules. However, they will soon find their policies redundant in the broader social sphere, where non-athletes can legitimately use tests or enhancement technologies for whatever purposes they may desire. More broadly, I suggest that emerging legal instruments on human rights and the human genome do not justify the limiting of access to genetic enhancement, nor the prohibition of genetic tests. However, it would appear that the reaction from the world of sport to this challenge is to re-describe unethical enhancement practices as criminally illegal in order to legitimise its objection to the unnatural human.
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