The challenge of regulating doping and non-doping ‘performance-enhancing strategies’ in elite sports

Abstract

From the use of polyurethane swimsuits to carbon fibre-plated shoes for road racing, the term ‘techno-doping’ has been commonly used in categorising the use of technology as ‘strategies’ for performance enhancement in sports. There are various types of ‘strategies’ which are regularly (and increasingly) used by athletes to enhance their performance, especially in elite sports, such as the use of actual substances, methods of administering substances, and other modes of ‘strategies’ which have the effect of enhancing the performance of the athletes. However, it is curious that at present, only few ‘Performance-Enhancing Strategies’ (‘PESs’) are regulated, such as the use of Performance-Enhancing Drugs and methods (‘PEDs’) under the World Anti-Doping Agency (‘WADA’) Code. There are other PESs which are wholly unregulated, such as the use of nutrition and haematology, environmental factors, physiology testing opportunities, and sports equipment and technology [hereinafter known as Non-Doping Performance-Enhancing Strategies (‘NDPESs’)]. This paper discusses the unequal treatment between the regulation of PEDs and NDPESs in elite sports, and will conclude that steps ought to be taken in order to harmonise the treatment and regulation of all PESs in elite sports.

1 Introduction

The ancient Olympic Games were first established in 776BC as a competition and showcase of war skills, and the associated physical attributes of its participants, with the first sporting events of footrace, javelin throw and wrestling matches.¹ The modern Olympic Games, arguably the pinnacle of elite sports today, encompasses similar values to its original counterpart—to provide a competitive platform for the showcasing of the physical attributes of its Olympians.

Elite sporting performance always requires the alignment of a myriad factors, in order to optimise performance, from phases of trainings to appropriate nutritional intake, and other methods of competition preparation. From the beginning to the end, there are various ‘strategies’ at each stage of competition preparation which one can employ to optimise one’s sporting performance. For the purposes of this paper, such strategies are to be generally categorised as Performance-Enhancing Strategies (‘PESs’), which shall be broadly construed to include any strategies which has the potential to enhance or actually enhance sports performance.

PESs range from the use of sports training, physiology, haematology, and technology, to optimise sporting performance, which also include the use of ‘substance or method’.² Many of these ‘substance and methods’ are employed with little regard to, and often at the expense of, the health of the athletes, and habitually abused for political purposes and interests.³ Often, athletes would also go great lengths to experiment with substances and methods to improve their strength and overcome their fatigue,⁴ to boost their performance.

The World Anti-Doping Agency (‘WADA’) was established in 1999 as a response to the (then) largely unregulated use of prohibited performance-enhancing substances such as amphetamines and erythropoietin in cycling races, such as Tour De France. During a police raid at the Tour De France in 1998, a large number of prohibited medical substances were found.⁵ Thereafter, during the World Conference on Doping convened in Lausanne, Switzerland, there was a widespread acknowledgement for the need to set unified standards on anti-doping in sports,⁶ which led to the formation of WADA. WADA is currently the main global anti-doping agency governing the use of Performance-Enhancing Drugs and Methods (‘PEDs’) in all elite sports, under the prevailing World Anti-Doping Code (the ‘WADA Code’)⁷ and the WADA Prohibited List.⁸

However, apart from the regulation of PEDs, there are categories of PESs which are presently unregulated or underregulated. There is a widespread use of Non-Doping Performance-Enhancing Strategies (‘NDPESs’), like the use of technology,⁹ psychology,¹⁰ and even nutritional strategies¹¹ for performance enhancement, which are either inconsistently regulated across certain sports, or not regulated at all.

While the use of NDPESs go largely unregulated, the use of PEDs under WADA attracts strict sanctions on violators, such as the stripping and disqualification of athletes of their records and competition medals¹². This unequal treatment of PESs is aptly illustrated in Fédération Internationale de Natation’s (‘FINA’) ban of the polyurethane swimsuit in 2009 (after acknowledging its significant performance-enhancing effects) but did not de-recognise the records which were broken or disqualify medals which were won, despite trite scientific research and findings that the said racing swimsuit used had significant performance-enhancing effects.¹³

Furthermore, while there is little or no stigma to the use of NDPESs, athletes with the history of using PEDs are called ‘drug cheats’¹⁴ and jeered at during major games.¹⁵ The treatment of the use of PEDs and NDPESs are so plainly different and perceptibly unequal, which is curious because both the use of NDPESs and PEDs yield the same effects of enhancing the performance of its user. This issue will be addressed in this article.

Part 2 of this paper will introduce the various forms of PESs before delving into the assessment of the respective regulatory frameworks for the two (2) categories of PES, viz, PEDs (Part 3) and NDPESs (Part 4). Part 5 will evaluate the respective regulatory frameworks for PEDs and NDPESs, before providing suggestions on ways to improve and harmonise the said regulatory frameworks. This work will conclude that there is a stark unequal treatment between the use of PEDs and NDPESs in elite sports, notwithstanding the similar performance-enhancing effects reaped, and in order to move towards a more level playing field, steps ought to be taken to harmonise the regulation of PEDs and NDPESs.

2 Performance-enhancing strategies

There are many elements and factors which can be considered a PES, from nutrition and haematology, environmental opportunities, to the development and use of technology, and even the use of PEDs. As an overview, PESs, excluding the use of PEDs, consist of the following examples as listed in the table below.

Category	Examples of PESs
Nutrition, Diet, and Haematology	a. Use of Varying Levels of Carbohydrates for Endurance Athletes,16 b. Use of Dietary Supplements17 c. Rapid Weight Loss for Weigh-In18
Physiology and Biomechanics	a. Tapering for Elite Competitions19 b. Performance Testing20
Psychology	a. Mindful Sports Performance21 b. Psychological Skills Training22
Technology and Equipment	a. Use of Video, Heartrate Monitoring, and Global Positioning Service23 b. Use of Three-dimensional Biomechanical Evaluation and Simulated Training Environment24 c. Development of Competition Equipment25 d. Fibre Orientation and Material of Racing Swimsuit26 e. Feedback System for Sports Testing27 f. Development of Prosthesis for Disability Sports28 g. Carbon-Fibre Plate with Extra-Cushioned Sole of Racing Shoes29
Environmental and Infrastructure	a. Use of High Altitude Centres30 b. Avoid Warm Humid Environment31 c. Competitive Training Environment32

There are currently two parallel regulatory frameworks for PESs, the uniform regulation of PEDs under WADA, and the ad-hoc regulation of NDPESs by other sports federations.

3 The current regulatory framework of performance-enhancing substances and methods under WADA

Since the establishment of WADA, most sports federations, as signatories to the WADA Code, have adopted WADA’s anti-doping rules, and incorporated the clauses in the WADA Code and the list of PEDs in the WADA Prohibited List, in their own regulatory documents.³³

WADA, which is currently the principal actor in the international sports anti-doping agenda, has two main documents on anti-doping, viz, the WADA Code and the WADA Prohibited List, with regards to the regulation of PEDs. The WADA Code³⁴ and the WADA Prohibited List³⁵ contain the details and scope of the regulation of PEDs, as well as the sanctions for the use of the PEDs. The WADA Prohibited List encompasses a list of substances which satisfy two of three criteria³⁶ as set out in the WADA Code, which are as follows:

• a. ‘has the potential to enhance or enhances sports performance’ (the ‘Performance-Enhancement Criterion’);

• b. ‘represents an actual or potential health risk to the athlete’ (the ‘Health Risk Criterion’); and/or

• c. ‘violates the spirit of sport described in the introduction of the [WADA] Code’ (the ‘Spirit of Sport Criterion’).

WADA does not directly enforce the WADA Code and the WADA Prohibited List, but relies on and supervises National Anti-Doping Agencies on the enforcement of the same on athletes within their jurisdiction. Each National Anti-Doping Agency is mandated to implement most of the substantive articles in the WADA Code into its governing documents on anti-doping, ‘without substantive change’, pursuant to article 23.2.2 of the WADA Code. This includes the definition of doping and its violation, proof of doping, sanctions, and appeal of certain disputes to the Court of Arbitration for Sport (‘CAS’) in Lausanne, Switzerland. Since 2019, CAS has a dedicated division to hear sports anti-doping cases for sports federations which have incorporated its regime its anti-doping regulations.³⁷

The fight against doping is essentially two-fold³⁸, viz, to prevent harm to health, and to level the playing field by preventing cheating or unequal access and opportunities.

At the outset, it is interesting to note that certain substances and methods in the WADA Prohibited List do not have the potential to enhance sports performance or have actual sports performance-enhancing effect, because certain substances and methods which satisfy the other two criteria i.e. the Health Risk Criterion and the Spirit of Sport Criterion, of the WADA Code can also be placed in the WADA Prohibited List.³⁹ The present anti-doping framework under WADA does not just regulate PEDs with performance-enhancing effects, but technically extends to the use of any substance or methods with health risk, which violates the spirit of the sport according to WADA. For example, the WADA Prohibited List includes restriction on the use of recreational drugs which are not conclusive proven to have performance-enhancing effects on all sports.⁴⁰ It is curious that WADA regulates, rather paternalistically, the use of substances and methods with only health risks, without performance-enhancement advantage to the user.⁴¹

Apart from recreational drugs, the WADA Prohibited List contains a comprehensive list of substances and methods such as listed anabolic agents, hormones and growth agents, beta-2 agonists, metabolic modulators, diuretics and masking agents, blood doping, chemical and physical manipulation, and gene doping. The WADA Prohibited List contains a list of sports⁴², within which ‘Beta-Blockers’ are prohibited in-competition. It has been opined that while beta-blockers generally constitute ergolytic drugs, which do not enhance performance, it has beneficial performance effect on precision sports such as archery, auto-mobile, darts, golf, and shooting, wherein the substance metoprolol reduces hand tremors. Nonetheless, it is prudent to note here that there are scientific opinions⁴³ about the performance-enhancing effects of beta-blockers on other sports.

The WADA Code sets out the stringent procedure for investigation and unforgiving sanctions for any violations of the said Code. Under Article 2.1 and 2.2 of the WADA Code, read together with Articles 10.1 and 10.2 of the said Code, athletes found with Use or Presence of any Prohibited Substance or Prohibited Method will be subjected to disqualification of results and a four-year period of ineligibility, unless mitigating factors are satisfied. Under Article 2.1 and 2.2 of the WADA Code, athletes are deemed to be ‘absolutely liable’⁴⁴ for Presence of any Prohibited Substance found in them.

3.1 The use and effectiveness of the current regulatory framework of performance-enhancing substances and methods under WADA

While the administration of anti-doping under WADA is uniform across all sports and all countries, and effective as a strict and dogmatic framework against the use of PEDs, it has its issues and limitations.

There are advantages to having such a uniform regulatory approach for sports anti-doping, most primarily, the harmonisation of the anti-doping regulation across all sports in all countries, which was the main intent of the establishment of WADA in 1999. The harmonisation of anti-doping regime across all sports ensures that standards for doping measures are kept equal among all sports, and regulates the differing standards across the respective sports. For example, in March 2019, the CAS held that the Doping Panel decision⁴⁵ by the International Ski Federation (‘FIS’) on German alpine skier Stefan Luitz was overturned⁴⁶ due to the fact that the WADA Code and the WADA Prohibited List do not contain a provision prohibiting skiers from inhaling oxygen through an oxygen cylinder, despite having infringed FIS Anti-Doping Rules (which were wider than the WADA Code). Such examples illustrate that the current sports anti-doping framework is useful in equalising and regulating the differing anti-doping standards across all sports.

This uniform and prescriptive approach for the regulation of anti-doping across all sports and countries has also effectively promoted the global sports anti-doping movement across all sports. Presently, more than 660 sport organisations⁴⁷ around the world have accepted the WADA Code, ranging from the International Olympic Committee (‘IOC’) to the International sports Federations (‘IFs’), and national sports federations. While it is admitted that full compliance with the WADA Code requires more than just acceptance of the Code (which includes implementation and enforcement), it cannot be denied that the vast acceptance of the WADA Code has effectively raised awareness of sports anti-doping movement across all sports around the world.

With the harmonisation and effective promotion of the sports anti-doping regime, all countries and sporting bodies are able to adopt the standard set of rules and list in the WADA Code and the WADA Prohibited List, without having to invest additional time or resources into research on the health and performance-enhancing effects of particular substances or methods. This standard set of rules and list in the WADA Code and the WADA Prohibited List will especially benefit developing sporting bodies with little resources to invest into sports integrity issues. There is also the benefit of cost savings in an economy of scale perspective, with WADA being the main integrity unit on the establishment of the standard set of rules and list in the WADA Code and the WADA Prohibited List for the implementation and enforcement by the national anti-doping agencies.

The stricter and arguably, inflexible approach under WADA also ensures a more equal treatment of athletes and administrators in every country in the event of any violation, in terms of procedural justice, standard of proof, and even sanctions, regardless of the development of the country and the sport. Every athlete or sports administrator who is caught in an anti-doping rule violation under Article 2 of the WADA Code (or its equivalent in the national anti-doping agency’s regulation) will be subjected to the same sanctions, regardless of which country or which sport the athlete or administrator is in. Furthermore, the ‘absolute liability’⁴⁸ nature of the anti-doping rule violations for the ‘Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample’⁴⁹ and ‘Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method’⁵⁰ ensures that regardless of the power and privilege experienced by any athlete, there will be a sanction imposed on the athlete, in the light of the said anti-doping rule violation. This means that an influential and well-off professional athlete in the pinnacle of his or her career will be treated in the same manner as a young developing athlete with few resources, in the event of any anti-doping rule violation on the use or presence of Prohibited Substances or Methods under Articles 2.1 and 2.2 of the WADA Code. There is no space for ‘hometown treatment’ or ‘favouritism’⁵¹.

Despite its benefits, a one-size-fits-all approach under any policy, rather naturally, always has its drawbacks. A one-size-fits-all sports anti-doping regulatory framework across will inevitably not be able to appreciate the nature or physiology of each sport, in order to accurately and precisely cater to the extent of ‘allowable’ or illegitimate performance-enhancement strategies within each sport. While it is acknowledged that within the WADA Prohibited List, there are certain additional regulations on beta-blockers which are not applicable to all sports, there is nonetheless a wide and vast list of Prohibited Substances and Methods which do not provide performance-enhancement effects in all sports, especially certain Prohibited Substances in its metabolised state. For example, although cannabinoid is a prohibited in-competition PED, it is more often acknowledged to be an ergolytic drug⁵² which decreases sporting performance⁵³ for the user, in the light of the effects of declined cardiac output and reduced psychomotor activity. This could be because WADA is also regulating the use of substances which has adverse health risks to the user, pursuant to the Health Risk Criterion in Article 4.3 of the WADA Code.⁵⁴ It is, then, ironic that WADA only tests for the presence and use (or attempted use) of cannabinoid out-of-competition.⁵⁵

Given that not every substance and method has performance-enhancement effect in every sport, to put every substance and method in the WADA Prohibited List on the same pedestal for implementation and enforcement may contribute to a waste of resources. In 2015, the total anti-doping expenditure for international federations was US$27.7 million, with Summer International Federations and WADA spending approximately US$29 million each⁵⁶. Within these sums, testing form approximately 70% of its costs⁵⁷. Even though the revised WADA regime which is to be in effect in 2021 would reduce the period of ineligibility for the consumption of recreational drugs i.e. ‘Substance of Abuse’,⁵⁸ resources still have to be spent to test and monitor athletes for presence of such recreational drugs.

Correspondingly, given that not every substance and method has performance-enhancing effect in every sport, to put every substance and method in the WADA Prohibited List on the same pedestal would attract the same levels of sanctions and stigma for athletes. For example, an athlete caught with presence of recreational drugs, such as marijuana (cannabinoid), in him or her would face the same extent of disqualification (albeit lesser period of ineligibility)⁵⁹ and social stigma as an athlete caught with presence of anabolic androgenic steroids.

There is little flexibility within a one-size-fits-all regulatory approach under WADA, and its effect is costly and unforgiving. Certain major sporting bodies have chosen not to adopt the comprehensive uniform regulatory regime under WADA, and begun to administer their own anti-doping regime and prohibited list. A prime example is the professional sports leagues in the United States of America, which administers and manages the anti-doping functions in their respective sports, like Major League Baseball, National Football League, National Basketball Association, National Hockey League.⁶⁰

The current regulatory framework of PEDs under WADA also does not completely deter the creation of ‘designer drugs’, which are sophisticatedly designed drugs for undetected sports performance enhancement, as seen from the prevalence of such drugs in the past.⁶¹ In fact, the presence of the regulatory framework of PEDs encourages the development of such WADA-undetectable ‘designer drugs’ for sports performance enhancement. As shown from the case study of the BALCO scandal⁶², such ‘designer drugs’ often go undetected until and unless there are cases of whistleblowing or advancement in detection technology in WADA.⁶³

WADA’s massive dependence on the respective National Anti-Doping Agencies and the national anti-doping programmes have also proven to be the kryptonite of the integrity of the anti-doping system, especially if the said agencies are state-influenced to commit doping infractions. This is illustrated by the vast and systematic state-sanctioned doping scandal⁶⁴ by the Russian government and Russian Anti-Doping Agency, especially at 2014 Sochi Winter Olympic Games. Without the assurance of integrity of the respective National Anti-Doping Agencies, the regulation of PEDs by WADA has little bite or influence.

4 The current regulatory framework of non-doping performance-enhancing strategies (NDPESs)

There is presently no uniform approach to the regulation of NDPESs across all sports and all countries, unlike the administration of anti-doping under WADA. There are specific NDPESs which are regulated by each specific sport governing body pertaining to strategies which enhance performance in the particular sport. The following paragraphs will set out some of the prime and notable regulation of NDPESs sport governing body.

A trite example is FINA’s regulation (and eventual ban) of polyurethane swimsuits, such as the LZR Racer, in January 2010, after an astounding 43 swimming world records were broken in the said swimsuits, within seven days at the 2009 World Aquatic Championship in Rome, Italy. It was proven that polyurethane swimsuits reduce hydrodynamic drag⁶⁵ for the user, eliminate air pockets,⁶⁶ improve swimming coordination,⁶⁷ stimulate anaerobic glycolysis system,⁶⁸ and amounted to ‘techno-doping’.⁶⁹ In fact, most of the world records, championship records, and medals won by athletes in polyurethane swimsuits are still intact, and not disqualified like the sanction prescription for the use of PEDs pursuant to the WADA Code.

On a similar note, World Athletics recently begun to regulate the use of carbon fibre-plated road running shoes after the development of the Nike Vaporfly and Nike Alphafly,⁷⁰ which are carbon fibre-plated shoes designed and proven to improve running economy (and thereby reaping benefits of metabolic costs),⁷¹ and attributed to the success of many recent broken world records, such as the men and women world records in 2019 in the marathon, and the world record for the 10km road run.⁷² Significantly, in 2019, Eliud Kiphoge ran a full marathon in less than two hours in a prototype of the Nike Alphafly.⁷³ In January 2020, World Athletics revised its Technical Rules to ensure that prototype shoes are no longer allowed to be used unless the said shoes are available in the open market for a period of no less than four months.⁷⁴ Sometime in July 2020, World Athletics made further revisions to its regulations on shoe technology, which consist of greater supervision over the development of racing shoes by major shoes manufacturers and the provision of newly developed shoes to unsponsored elite athletes.⁷⁵

In disability sports, where the use of technology and equipment such as wheelchairs and protheses is prevalent, the various Paralympic sports bodies have rules and regulation governing the use of technology, such as the World Para Athletics Rules and Regulations⁷⁶ and the International Paralympic Committee (‘IPC’) Policy on Sports Equipment.⁷⁷ The IPC Policy on Sports Equipment provides fundamental principles on the use of equipment i.e. safety, fairness, universality, and physical prowess, while the individual Para sports bodies administer their own specific rules on technology and equipment usage. For example, the administrator of World Para Athletics Rules and Regulations, the World Para Athletics Technical Delegate ensures that specific principles on the use of sports equipment in Para Athletics are being conformed to, inter alia, ‘whether the equipment contains materials or devices that store, generate or deliver and/or are designed to provide function to enhance performance beyond the natural physical capacity of an athlete’.⁷⁸

Another example of a sporting body regulating NDPESs is the National Collegiate Athletic Association’s (‘NCAA’) establishment of its Wrestling Weight Certification Programme in 1998 to institute a permanent weight class for each wrestler and eliminate any incentive for detrimental weight loss.⁷⁹ Athletes in combat sports which pre-competition weigh-ins have been using detrimental weight loss strategies⁸⁰ to make the lighter weight classes, as a strategy to excel in the said lighter weight classes. By establishing a Wrestling Weight Certification Programme, all state associations under NCAA are obliged to set up a weight-management programme with regular body fat assessment and weight monitoring, which is intended to ascertain the minimum weight at which the athlete will be allowed to compete in at NCAA wrestling matches.⁸¹ The NCAA Wrestling Certification Programme endeavours to regulate the use of detrimental weight loss strategies to enhance performance.

Another example of the regulation of a strategy which enhances performance is World Athletics’ attempt to regulate the use of prosthesis as a ‘technical device’ at the Olympic Games, in the case of Oscar Pistorius’ qualification for World Championship and the Summer Olympic Games. Pistorius was the reigning T-44 champion and record holder for the 100-metre, 200-metre, and 400-metre at the Paralympic Games, and qualified for World Athletics [previously known as International Association of Athletics Federation (‘IAAF’)) Meets and the Olympic Games in 2007. Sometime in March 2007, IAAF amended its Competition Rules to include a ban on the use of ‘any technical device which incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device’. ⁸² This decision by IAAF was backed by a statement from a German professor Gert-Peter Brueggemann, who conducted tests on the prosthesis limb (J-shaped carbon fibre) and concluded that the energy consumption for a double-amputee with the said prothesis limb is lower than able-bodied athletes at the same speed, providing the protheses user a competitive advantage of more than 30%.⁸³ In any event, IAAF’s revised Competition Rules were suspended by the CAS, after experts opined that ‘energy ‘lost’ in the ankle could be transferred elsewhere in the body’,⁸⁴ but this case serves it purpose as another example of international sports bodies attempting to regulate performance-enhancing effects.

In 2004, FIS started to regulate the length of the ski used for their ski jumpers based on their Body Mass Index (‘BMI’)—calculated based on their relative height and weight—to reduce the positive lift force acting on the athlete and the equipment during the flight, thereby reducing the positive effect of being lighter in weight.⁸⁵ If a ski jumper is below the minimum BMI of 20, he or she will be penalised with a shorter ski, thereby reducing the incentive for the athletes to lose weight. This regulation was driven by the prevailing culture of dieting and anorexia⁸⁶ among ski jumpers prior to competition, wherein athletes would risk their health for aerodynamic advantages at competition.

Nonetheless, there is a multitude of NDPESs which have significant performance-enhancing effects, which are backed by scientific evidence, unequally enjoyed by elite athletes around the world, yet they continually go unregulated. One obvious example is the use of effective training for optimised sporting performance. A well-structured training programme with the appropriate exercises for core⁸⁷ and muscular strength,⁸⁸ and apt interval sessions⁸⁹ is, perhaps, the most effective and commonly used non-doping strategy with significant performance-enhancing effects.

There are also numerous NDPESs within the realms of nutrition, diet, and haematology. In April 2019, IAAF released a Consensus Statement for Nutrition for its Athletes,⁹⁰ which contains brief information on the various kinds of nutritional strategies which athletes in the various events can adopt to enhance performance. A key example is the periodisation of carbohydrate intake for endurance athletes, from the type and amount of carbohydrate, to the timing of carbohydrate intake before and after training and competition.⁹¹ There are certain strategies to lower the athlete’s muscle glycogen in order to increase the expression of relevant genes essential to sporting performance, or restrict carbohydrate intake post-exercise to prolong stress factor to the body to enhance future sporting performance.⁹² Another nutritional strategy is the usage of certain non-doping dietary supplements⁹³ (not found in the WADA Prohibited List) which increase quality of training, increase protein synthesis, and/or has the potential to increase mitochondrial biogenesis, such as caffeine, sodium bicarbonate, and amino acid leucine.

A physiological strategy which has significant performance-enhancing effect is pre-competition tapering for elite athletes. Pre-competition tapering refers to the decrease, often progressively, in high intensity training. In general, there are numerous performance-enhancing effects for pre-competition tapering, ranging from cardiorespiratory changes, haematology changes, metabolic changes, to biochemical and even hormonal changes⁹⁴ to the athlete’s body.⁹⁵ There is evidence that a pre-competition tapering period can increase the athletes’ post-competition blood lactate and decrease the athletes’ pre-competition plasma cortisol, which improves sporting performance in sports such as swimming.⁹⁶

There are also other NDPESs which can be adopted to optimise performance, such as environmental ones. The weather, in terms of heat and humidity, has a huge impact on an athlete’s training in the long term, especially outdoor endurance athletes. There is a wide range of literature on the negative effect of prolonged and/or endurance training in the presence of heat and high levels of humidity on fluid balance,⁹⁷ which is often caused by thermoregulation impairment in such warm and humid environment and the increase in cardiovascular strain.⁹⁸ leading to accelerated fatigue.⁹⁹ It is therefore trite that there is better marathon performance in cooler, less humid environments. ¹⁰⁰ However, despite this remarkable performance-enhancing effects associated with training and competing in a cooler, less humid setting, certain athletes are born and raised in warm and humid environment, sometimes with no capacity or knowledge to seek a change in location, and such athletes are inherently disadvantaged when engaging in prolonged and/or endurance training.

On this note, it is also prudent to note that there are nutritional strategies to alleviate or overcome the fluid imbalance or hypohydration associated with training or competing in a warm, humid environment, such as the prompt intake of carbohydrate-electrolytes and caffeine,¹⁰¹ which further buttresses the earlier examples of NDPESs. Scientific evidence establishes that the use of ‘beta-blockers’, which are banned for certain sports in the WADA Prohibited List¹⁰², has a positive effect on thermoregulation, which makes it curious that such substances are not prohibited for all sports, despite its potential performance-enhancement effect.

Another significant environmental factor which has proven, positive sporting performance effect is training and living in an environment with high altitude. Training and living in environment with high-altitude results in significant increase in erythropoietin concentration in most athletes, which correspondingly leads to an increase in red cell volume and values of maximal oxygen uptake (‘VO₂max’),¹⁰³ which improves oxygen delivery and utilisation,¹⁰⁴ and enhances sporting performance in endurance athletes. Training in a hypoxic environment also has the effect of increasing training stimulus and magnifying endurance training for the athlete.¹⁰⁵ Certain athletes are born in an environment with high altitude and reap its benefits on a longer-term than others, thereby providing these athletes with performance-enhancing effects compared to other athletes who are born in environment closer to sea-level. This advantage is backed by statistical studies,¹⁰⁶ which shows that 81%¹⁰⁷ of Kenyan athletes originate from the Rift-Valley province, which lies as high as 1,850 metres above sea-level.

In an endeavour to overcome geographical limitations and reap the benefits of high-altitude training, there has been some development in technology to replicate the effects of high-altitude training, such as the creation of high-altitude chambers or tents, and hypoxicator masks. There have also been certain training strategies¹⁰⁸ to stipulate the high-altitude hypoxic environment, such as hypoventilation training¹⁰⁹. While there is still the prevailing issue of unequal access to such equipment based on power and privilege, athletes who have lived their whole pre-training life in high-altitude environment will still, nonetheless, enjoy greater levels of performance advantages associated with hypoxic environment that other athletes do not enjoy. It is also ironic to note that the exogenous ingestion of erythropoietin is prohibited under the WADA Prohibited List,¹¹⁰ while some athletes are able to enjoy the same performance-enhancing effects from living and/or training in high-altitude environment.

4.1 The use and effectiveness of the current regulatory framework of non-doping performance-enhancing strategies (NDPESs)

While the current regulation of NDPESs is ad-hoc and inconsistent, it is sport-specific. One clear gain to having such sport-specific regulatory regime is that international governing body for specific sports are in the best position to decide which strategies have sufficient performance-enhancing effects in order to be regulated, and the extent and severity of the regulation. Sport-specific governing bodies are best placed in terms of resources and data to invest into research and development into the physiology and use of the human body in the particular sport, in order to craft-specific regulations for any performance enhancing or performance advantages afforded to certain athletes, to level the playing field for elite competition. For example, it was only with sport-specific research and development was IAAF able to craft a narrow regulation on female classification¹¹¹ for the middle-distance events, based on evidence and expert opinion on the effect on the role of blood testosterone in the performance in the middle-distance events. Such flexibility found in the current regulatory framework of NDPESs allows specific sport international governing bodies to be creative and resourceful in the drafting of such regulations to balance the need to level the playing field with its other specific policy considerations, such as the empowerment of female participation sport.

Furthermore, unlike a main regulatory regime which governs all sports on a wide range of performance-enhancing effects, the current decentralised regulatory regime of NDPESs avoids the issue of overregulation. A main regulatory regime would have to cater to sporting performance enhancement of every sport, and risk overregulating performance in certain sports. In order to further regulate performance-enhancement in certain sport, the WADA Prohibited List includes an additional prohibited substance list of ‘Beta-Blockers’¹¹² for certain sports. However, there is no mechanism to exclude certain substance or methods which have no performance-enhancement effect in certain sport.

Nonetheless, the advantages associated with the current ad-hoc regulatory regime of NDPESs is based on the assumption of a perfect economy, wherein every international sport governing body has the resources and interest to pursue the regulation of sport-specific performance advantages or performance enhancements. In an imperfect economy, certain sport-governing body is more well-funded and more prepared to pursue regulatory frameworks, while other sport governing bodies may face barriers, or be in a different stage of development to consider the implementation of regulatory framework in the sport. As such, not all NDPESs are regulated, such as nutritional and environmental factors which are mentioned earlier. Furthermore, even for the NDPESs which are currently regulated, the regulations were implemented and enforced at different times, whereby athletes are able to reap the performance benefits of the various strategies during the time lag before regulation. This becomes unfair to past and future athletes who have not been able to reap the performance benefits of such performance-enhancing strategies. For example, the 48 swimming world records which were broken with the polyurethane swimsuits were not revoked after the ban of the said suits, thereby leaving future generations of swimmers with a more difficult record to be broken, without having the performance advantage of the polyurethane swimsuits.

The current regulatory regime of NDPESs is also inconsistent in its sanctions when compared with each other, as well as when compared with the uniform regulation of PEDs under WADA. Unlike the uniform regulation of PEDs under WADA, there is no fixed sanctions imposed on the use of regulated NDPESs. Ergo, despite the similar performance-enhancing nature of PEDS and NDPESs, the presence or use of the latter does not attract the same sanctions or consequences as the use of the former. While this may be advantageous, wherein sports tribunals have the flexibility in assessing the appropriate sanctions within their unique sports and/or forum on a case-by-case basis, the lack of a uniform framework on regulation and sanctioning gives room for discrepancies in treatment between similar cases.

Correspondingly, the inconsistency in sanctions and consequences between the use of PEDs and NDPESs attract discrepancies in treatment and stigma, despite the like ethical justification. Athletes with anti-doping rule violations are subjected to unforgiving treatment by members of the public, due to the prevailing shame and dishonour attached to the use of Prohibited Substances in the WADA regime. Justin Gaitlin, an American 100-metre sprinter who won the gold medal at 2017 IAAF World Athletics Championship, was jeered and booed¹¹³ by the audience during the medal ceremony due to his anti-doping rule violation antecedents.¹¹⁴ Russian swimmer, Yulia Efimova was jeered at by the audience after she completed the 100-metre breaststroke semi-finals at the 2016 Summer Olympic Games with world’s second-fastest time that year.¹¹⁵ American competitor, Lilly King, spoke out harshly against Yulia Efimova’s ‘drug cheating’ past.¹¹⁶ Gaitlin and Efimova, like many other athletes with doping antecedents are cast as ‘villains’ and ‘cheats’ by the media and members of the public. At the 2019 FINA World Swimming Cup, several podium winners refused to stand on the podium with Sun Yang, a Chinese swimmer with a prior doping violation in 2014, after Sun Yang avoided doping testing by destroying blood samples.¹¹⁷ In contrast, despite FINA’s ban of the polyurethane swimsuits, swimmers who previously used the swimsuit and reaped the performance benefits of the suits were not judged in a bad light for using the said suits when they broke world records and won medals. While athletes who have served sanctions for past doping violations under WADA are not allowed to escape their past by being treated with opprobrium upon return to competition, those athletes who gained victories and records by employing now prohibited methods retain their status as heroes. To explain this on the basis that what was done was not legal or was legal at the time, respectively, is to overlook the underlying inconsistencies in the treatment and reception when questionable performance-enhancing effects are considered.

5 Evaluation of the current regulatory framework for performance-enhancing strategies

As illustrated in the preceding section, there is an inherent inconsistency in the current regulatory framework for PESs, viz, between the regulation of PEDs and NDPESs in elite sports today. Despite the similarity in the performance-enhancing effects of the various PESs, the use of PEDs, at present, seems to attract harsher sanctions and consequences, while the use of any presently not prohibited NDPESs does not uniformly attract the same.

It is submitted that steps should be taken to harmonise the inconsistencies within the regulation and approaches to PEDs and NDPESs. The following paragraphs will analyse the various options available and provide recommendations on the regulatory regime for both PEDs and NDPESs.

5.1 Abolish all regulatory framework for all performance-enhancing strategies and adopting non-paternalistic alternatives

The most radical option is to abolish all regulatory framework for PEDs and NDPESs, including the currently regulatory framework for PEDs under WADA. This option of legalising all forms of PESs harmonises the regulatory approaches for both PEDs and NDPESs.

Anderson argues¹¹⁸ against the high costs and undesirable effects of such ‘penal-led’ approach to drug use in sports, and proposes the use of alternative methods on education and training to deter drug use. Anderson is not alone¹¹⁹ in his criticism of the current regulatory framework under WADA. Other writers have challenged the shortcomings of the current regulatory framework under WADA and provided various ways of refining the framework under WADA. Savulescu recommends the repeal of prohibition and the regulation of substances and methods which are harmful to athletes.¹²⁰ Kayser, Mauron and Miah further propose the establishment of a ‘medically supervised doping’, focussing on doping control with adverse health effects.¹²¹ Both Savulescu and Kayser premise their proposals on medical safety, arguably rooted in soft paternalism,¹²² instead of the prevailing hard paternalism.

There have also been certain suggestions on a more flexible sports anti-doping regulatory regime under WADA, such as flexibility on the standard of proof of mens rea,¹²³ and flexibility in the anti-doping rules to provide more power to the tribunal adjudicating the doping infraction.¹²⁴ In particular, Opie notes that providing adjudicating tribunals certain flexibility and power allows space to resolve ethical dilemmas on the athletes’ intention to administer PEDs and the extent of the effect of performance-enhancement of the particular PED administered.¹²⁵ While Opie still speaks of a uniform sports anti-doping regime under WADA, flexibility within the prevailing anti-doping framework does allow space to cater to the specific nature of each sport and particular doping infraction and its performance-enhancing effects, if any.

The complete legalisation of the use of all PESs, from the use of PEDs to NDPESs, may sound radical, but to a certain extent, it has the benefit of levelling the playing field for athletes. This concept was first suggested by Savulescu,¹²⁶ wherein he argued that allowing athletes to use PEDs such as erythropoietin, the playing field between the rich and privileged athletes who are able to afford altitude training at different locations or use a hypoxic air machine to simulate the same, and athletes who are not able to afford such NDPESs, will be levelled. The legalisation of all PESs such as the use of technology and equipment such as the polyurethane swimsuit will also level the playing field, wherein all swimmers in the future can reap the performance benefits of the said swimsuit to break future records. Arguably, the complete legalisation of all PESs can promote mass production of the elements required for the strategy, such as drugs, equipment, coaches’ education, nutrition education, thereby reducing the costs of such elements, and consequently reducing the inequality of access to such strategies.

The complete legalisation of the use of all PESs will not only harmonise the inconsistent regulation of PESs, but it will also remove the stigma of cheating associated with the use of such strategies to enhance performance.

While it is arguable that some degree of regulation of PESs are necessary to protect athletes, such objectives can also be achieved by education and training to deter drug use, based on the merits of its health impact, rather than from the ‘penal-led’ regulatory framework.¹²⁷Certain academics have proffered alternatives to deter the use of PEDs in elite sports on a socio-economic level, such as education and alteration of societal values and attitude in elite sports.¹²⁸ In particular, the eradication of certain psychological variables and the raising of certain inhibiting factors to discourage the use of PEDs, to encourage athletes to avoid health risks rather than doping tests.¹²⁹ An example of a comprehensive strategy is illustrated by Petróczi and Aidman’s proposal of the list of personal and systematic remedies which can be implemented to alleviate the effects of certain vulnerability factors influencing elite athletes from using PEDs.¹³⁰ A holistic approach to the choices and values of elite athletes pertaining to doping can be slowly be preferred and emphasised, over the increasing use of interventionist and preventative anti-doping measures.

5.2 Decentralising the regulation of all performance-enhancing strategies to international sports federations

A more nuanced alternative to the radical abolition of all regulations of PESs is to decentralise the regulation of all PESs to the IFs. Currently, this is being done for the regulation of NDPESs, wherein IFs regulate the use of certain strategies, such as the use of polyurethane swimsuit by FINA and the length and number of spike nails on track spike shoes by IAAF for each athletic event. Decentralising the regulation of PEDs to IF is not novel. Prior to the establishment of WADA, anti-doping measures in place under some of the international sports governing bodies, such as the IAAF, the IOC, and even the Union Cycliste Internationale (‘UCI’). The fight against doping was already prevalent in 1998, with the history of state-sanctioned doping in East Germany in the mid-1960s¹³¹ and China in the early-1990s.¹³² Unfortunately, the prior regulation of PEDs by the individual IFs were often inconsistently implemented, sporadically enforced, or have nothing done at all.

Nonetheless, this proposal has its merits. If appropriately implemented and enforced, IFs are in the better, specialised position to carefully consider and regulate all strategies (including PEDs) for performance enhancement within each sport. Furthermore, there will not be an issue of overregulation if each IF only regulates the strategies which have performance enhancement to the said sport, rather than regulation all PESs, which may not have performance-enhancement effect in the said sport. This alternative also provides IFs the flexibility to regulate the usage of certain drugs in accordance with its values and policies. For example, the Australian Football League (‘AFL’) has its own Illicit Drug Policy, on top of the regulation of certain illicit drugs in the WADA Prohibited List, with regular testing of its players out-of-competition.

Nevertheless, following the decentralisation of the regulation of all PESs is the fear that the regulation of PEDs will go inconsistently implemented or sporadically enforced, again, thereby threatening the integrity of elite sports. There is still the concern of the credibility of certain IFs and the influence of politics into certain sports, especially the younger and developing IFs, which may not be in the financial or political position to pursue to the regulation of all sport-specific PESs.

In the endeavour to appropriately implement and enforce the regulation of PEDs, it can be considered for WADA to continue to exist in a consultative role and enforcement body as the main sports anti-doping regulatory body. WADA can continue to embark on research for PEDs (and even NDPESs), consult sporting bodies¹³³ on the implementation of its anti-doping policies, and enforce the IFs’ anti-doping policies.

5.3 Creation of a main integrity body for the regulation of PEDs and NDPESs

Another alternative to harmonise the regulation of all PESs in elite sports is to establish a global sports integrity like WADA, for the acceptance, implementation and enforcement of regulation pertaining to NDPESs, This solution to establish a global sports integrity unit was first proposed by David Howman,¹³⁴ the ex-Director General of WADA, but within the context of other sports integrity issues such as betting, corruption, and match-fixing. This global sports integrity unit can have various arms, one for regulation of PED, another for general sports integrity issues such as betting, corruption, and match-fixing. Another arm can be created for the regulation of NDPESs. A similar sports integrity unit which has already been established is Sports Integrity Australia, which has various arms such as the administration of sports anti-doping in Australia, sports wagering, match-fixing, safeguarding in sports, and supplements in sports.¹³⁵

This global sports integrity unit arm for the regulation of NDPESs can even endeavour to work closely with the already-established International Sports Engineering Association (‘ISEA’)¹³⁶ to monitor and regulate the development of sports technology and equipment as tools for performance enhancing in sports. This is similar to the Working Group on Athletic Shoes Structure which was established by World Athletics to supervise the development of shoe technology.¹³⁷

Having a global sports integrity unit will harmonise the regulation of all PESs across all sports, in all countries, like the current regulatory framework for PEDs. This will overcome the issue of ad hoc and inconsistent regulation of NDPESs in the current regulatory framework for NDPESs. A uniform framework for the regulation of NDPESs will ensure consistent implementation and enforcement of the use of the respective NDPESs, and other PESs like PEDs. An example of such a framework for the regulation of NDPESs is the regulation of equipment with performance-enhancement effect by the IPC. Under the IPC Policy on Sports Equipment,¹³⁸ broad principles¹³⁹ are established for the use of sports equipment for competition at the Paralympic Games, wherein each disability sport organisation subsequently adopt specific regulation for the use of such sports equipment. Under World Para-Athletics Rules and Regulations,¹⁴⁰ World Para-Athletics adopted¹⁴¹ the principles of Safety, Fairness, Universality, and Physical Prowess, and established specific monitoring of sports equipment¹⁴² and prohibited technology¹⁴³ for the sport of Para-Athletics.

It is acknowledged that the regulation of PEDs and NDPESs for every sport is unique, and each IF ought to continue implementing regulation for PEDs and NDPESs. Nevertheless, the global sports integrity body can set fundamental principles for each IF to adopt, wherein athletes have to adhere to in order to ensure a level playing field in elite sports. Such fundamental principles can also be a catch-all administrative provision, wherein any attempts to transgress boundaries with PEDs and NDPESs can be caught, if not done in good faith.

The proposed global sport integrity unit can also take on the role as the main enforcement mechanism, like WADA and the national sports anti-doping agencies in the current global sports anti-doping framework. Having a main sports integrity unit governing the development of NDPESs, certain reporting mechanisms, investigative power and prosecution can be attributed to global agency to enforce any breach of regulation of NDPESs.

In any event, this global sports integrity unit is also useful for the monitoring and regulation of other contentious sports integrity issues, such as corruption and match-fixing, and more recently, the safeguarding of children in sports. Having a uniform framework for other sports integrity issues will also further harmonise the standards across all sports and relieve IFs from the costs of taking on such roles themselves. Should the scope of work of this global sports integrity unit increase, it may even be prudent to establish national agencies, like the national sports anti-doping agencies of WADA.

6 Conclusion

Elite sporting performance encompass a myriad of factors, which can be nature or nurtured. In our imperfect world, where there are inequities in our access and availability to resources which can enhance performance in elite sports, regulation becomes key to ensuring a level playing field in sports. The option to ‘de-regulate’ and abolish all regulatory frameworks for PEDs and NDPESs may serve to reduce costs and provide ‘free competition’ among athletes based on their environment and the availability of resources, but such scenario would run the risks of abuse, as evidenced by the massive and undeterred use of amphetamines in the twentieth century. And on the flip of the coin, one should not overregulate or regulate intrusively, which would inevitably result in the rise in costs and undermine the essence of competitive sports.

Nevertheless, optimal and well-considered regulations must be also coupled with uniformity, wherein all performance-enhancing strategies and methods should be treated, regulated, and sanctioned in a consistent manner. It now stands that the regulation of PEDs has decades worth of head start, but it does not mean that NDPESs should continue to go unregulated. A prudent step forward would be to establish a global sports integrity body to institute principles and standards for the regulation of all performance-enhancing strategies, viz, PEDs and NDPESs, which would begin the process of harmonising the respective regulatory frameworks, wherein IFs would be empowered to institute their own sport-specific regulations.