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The rise of human enhancement in sport

July 2018

Bartólome Martín of CMS Spain considers the issue of human enhancement in professional sport and the challenges of holding perpetrators to account.

Since the beginning of time, athletes have tried to gain a competitive advantage over their opponents. The motivator isn’t just making money - it’s also about the glory and praise that comes from being the champion. This mentality, of course, not limited to the world of sports.

Meticulously planned diets, perfectly controlled workouts, carefully selected nutritional supplements, and the latest high-tech sports equipment are the new best friends of any professional athlete seeking to gain any possible advantage.

Unfortunately, the combination of fast progress in scientific research with the constant pressure placed on athletes (from various sources) to win has, in some cases, had negative effects. Notably, we observe, across almost all sporting disciplines, the abuse of chemical substances which artificially improve the condition of athletes. Thanks to the evolution of testing systems and their sophistication, and increased media coverage of athletes’ personal and professional lives, doping is now dramatically more visible and demands to hold perpetrators to account are louder.

There have been four phases in the history of doping: (i) natural doping; (ii) single or first generation chemical doping; (iii) systematic and second generation chemical doping; and (iv) biotechnological doping. You may be surprised to read that it was not until 2003 that the World Anti-Doping Agency (WADA) clarified that genetic doping was included within the list of prohibited practices.

Prosecuting an athlete for doping (particularly, genetic doping) can be extremely technically challenging. The main problem lies in the fact that proteins expressed by the introduced transgenes are essentially the same as their endogenous counterparts. Distinguishing between the two comes with great difficulty, although there are now some new techniques that allow detection of genetic manipulation.

From a legal standpoint, there are also several hot topics in discussion.

Firstly, what is the right channel for prosecution of these bad behaviours? Some jurisdictions, such as Spain, have incorporated a specific doping category to their criminal codes. However, there are voices who loudly assert that anti-doping administrative proceedings are more than adequate to hold those accused of doping to account. They argue that doping specific categories are unnecessary in a criminal code since they already include specific categories which cover the issue (prosecuting ‘regular’ genetic manipulation, for instance). 

The second legal challenge is how to create systems that are simultaneously legally effective and rigorous (ensuring that tests and their results are useful from a legal point of view) whilst affording the necessary respect to the fundamental rights of athletes as human beings.  The continued geo-localization of athletes and the level of intrusion in their private lives by the authorities (and now media) has long been fiercely criticised by athletes. With the General Data Protection Regulation now in full force since 25 May 2018, privacy will play an even more relevant role and become a driver when designing these types of control systems.

As in many other fields, technology, fundamental rights and ethical values are fighting to prevail.


Bartolomé Martín