Chapter[ X. Review of the Major League Baseball Joint Drug Prevention and
Treatment Program ]
Section[ A. Development of the Essential Elements of an Effective Drug Testing Program ]
A. Development of the Essential Elements of an Effective Drug Testing Program
The drug programs currently administered by the World Anti-Doping Agency
(“WADA”) and related national agencies such as the United States Anti-Doping Agency
(“USADA”) have substantially improved their effectiveness in recent years. But those programs
today are the result of an evolution that included a slow initial response to a growing problem
followed by further efforts that eventually gained momentum and widespread recognition.
In 1962, following the drug-related death of Danish cyclist Knud Jensen at the
1960 Rome Olympics, the International Olympic Committee (“IOC”) for the first time formally
condemned doping in sports. Its first attempts at banned substance control occurred at the 1964
Tokyo Olympics, but comprehensive drug testing was not attempted until the 1972 Munich
508 Allan H. Selig and Robert D. Manfred, Jr., The Regulation of Nutritional Supplements
in Professional Sports, 15 Stan. L. & Pol’y Rev. 35, 35 (2004)
259
Games.509 Steroids were added to the prohibited list for the 1976 Montreal Games, and
additional substances have been added from time to time, including human growth hormone in
1990.510
Throughout the 1990s, various national governing bodies and the United States
Olympic Committee (“USOC”) encountered problems arising from their dual responsibilities to
promote sport and also to police and sanction those in sport who use banned substances.511
Programs were criticized as ineffective.512 In congressional hearings, a USOC official and other
critics argued that its drug enforcement efforts should be “externalized.”513
Shortly after those hearings, the USOC established USADA, which began
operations in 2000. USADA is an independent organization that is empowered to conduct
research, educate, test, manage test results, adjudicate, and sanction U.S. athletes in Olympic
sports. USADA externalized all aspects of the USOC’s former drug prevention efforts into a
self-perpetuating, independent, non-profit corporation; dedicated substantial funds to
509 National Center on Addiction and Substance Abuse at Columbia University, Winning
at Any Cost: Doping in Olympic Sports, A Report by the CASA Nat’l Commission on Sports and
Substance Abuse, 45 (Sept. 2000) (“CASA Report”).
510 Id. at 46.
511 See Effects of Performance Enhancing Drugs on the Health of Athletes and Athletic
Competition: Hearing Before the S. Comm. on Commerce, Science and Transp., 106th Cong. 54
(1999) (prepared statement of William Hybl, president of the United States Olympic Committee)
(“Hybl 1999 Statement”); CASA Report, at ii.
512 See CASA Report at i.
513 Hybl 1999 Statement, at 55; Wadler 1999 Statement, at 86. See also CASA Report, at
48; Ryan Connolly, Balancing the Justices in Anti-Doping Law: The Need to Ensure Fair
Athletic Competition Through Effective Anti-Doping Programs vs. The Protection of Rights of
Accused Athletes, 5 Va. Sports & Ent. L.J. 161, 165-66 (2006).
260
unannounced testing, research, and education; and provided transparency by issuing annual
audited reports of its activities.514
Also in 2000, Columbia University’s National Center on Addiction and Substance
Abuse formed a commission to study performance enhancing substance use in Olympic sports.
Its report concluded that: “[t]he evidence is clear: many performance enhancing substances can
cause serious harm when used in the methods and levels designed to provide competitive
advantage.”515 The commission recommended that drug testing programs include the following
characteristics: (1) administration by a truly independent organization with broad authority over
testing and sanctioning; (2) comprehensive year-round unannounced testing; and (3) continued
research regarding performance enhancing substances and more effective testing methods
designed to address changes in doping techniques.516
Similarly, in 1999 the IOC established WADA “to coordinate a comprehensive
anti-doping program at the international level, laying down common, effective, minimum
standards, compatible with those in internationally recognized quality standards for doping
controls, particularly with regard to out-of-competition controls, and seeking equity for all
athletes in all sports and all countries.”517 A 38-member board of directors is divided equally
between individuals affiliated with the sports organizations and those representing governments
from around the world (including the United States).
514 Doriane Lambelet Coleman, Memorandum Re: Evaluation of Proposals by IOC and
USOC to Reform their Doping Control Programs, dated Oct. 13, 1999, at 5-6.
515 CASA Report, at 53.
516 Id. at 3-4.
517 Id. at 47; see Connolly, supra note 513, at 165; Wadler 1999 Statement, at 82 (“The
athletes’ confidence in the public trust has been shaken. We must place the responsibility for
drug testing and enforcement of standards in the hands of a structure with unquestioned
probity.”).
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In 2003, WADA published and adopted the WADA Code, which sets forth
a uniform and comprehensive set of anti-doping rules, policies, and standards for sport. WADA
also developed standards for testing procedures, testing laboratories, managing the results of
drug tests, and approval of therapeutic use exemptions (under which the use of performance
enhancing substances is allowed for the treatment of certain medical conditions).518 WADA also
publishes a List of Prohibited Substances and Models of Best Practices and Guidelines on these
and related issues. The WADA Code was adopted by all Olympic national sports federations
before the 2004 Athens Summer Olympic Games.519
As a result of this history, certain characteristics are now widely recognized as
essential to an effective program to prevent the use of performance enhancing substances in
training and competition. These are:
1. independence of the program administrator;
2. transparency and accountability;
3. effective, year-round, unannounced testing;
4. adherence to best practices as they develop;
5. due process for athletes;
6. adequate funding; and
7. a robust education program.520
518 See Richard L. Hilderbrand, Ph.D., Richard Wanninger, and Larry D. Bowers, Ph.D.,
An Update on Regulatory Issues in Antidoping Programs in Sport, 2 Current Sports Med.
Reports 226-232, 227 (2003).
519 Connolly, supra note 513, at 165.
520 Wadler 1999 Statement, at 82-84; The Necessary Components of an Anti-Doping
Agency or Program, The Duke Conference on Doping, The Center for Sports Law and Policy,
Duke University of Law, at 3-4 (May 7-8, 1999).
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Programs based on these principles can more readily adapt to changing circumstances in the
ongoing contest between athletes who compete clean and those who do not, although even the
strongest program cannot by itself entirely eradicate the use of banned substances.
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