Placebo doping in sport

Question

It is illegal in most sports to take any of a list of banned performance-enhancing substances. There are governing bodies across sport to enforce these restrictions.

If an athlete were to honestly believe that they were taking such a substance, surreptitiously and in order to obtain an unfair advantage, but no such substance was present -- for example because an unscrupulous trainer believed the placebo effect would give them an advantage, or perhaps because their dealer is crooked -- would this fall foul of the regulations?

The reason I ask is that the violations which you here about concern the fact of consumption not the intent, which is clearly sufficient to sanction an athlete. Is this because intent doesn't enter into the fact of the offence, or because either the fact or the intent are sufficient?

Answer 1

In the united-kingdom it is a breach of the 2021 UK Anti-Doping Rules for an athlete to have a "Prohibited Substance or its Metabolites or Markers" in their sample. No mention is made, as far as I can see, that the intent to use a placebo as described by the OP would fall foul of these Rules.

The only relevant mention of intent seems to be when the substances etc are present:

It is each Athlete’s personal duty to ensure that no Prohibited Substance enters their body. An Athlete is responsible for any Prohibited Substance or any of its Metabolites or Markers found to be present in their Sample. Accordingly, it is not necessary to demonstrate intent, Fault, negligence or knowing Use on the Athlete’s part in order to establish an Article 2.1 Anti-Doping Rule Violation; nor is the Athlete's lack of intent, Fault, negligence or knowledge a valid defence to an assertion that an Article 2.1 Anti-Doping Rule Violation has been committed.

Answer 2

Not a full answer, but it should be noted that in the United States (and, I suspect, many other jurisdictions), even if the athlete didn’t manage to use such substances they could be charged with conspiring to consume such substances. This would require:

• Intent to violate anti-doping laws
• Scheming with another person (drug dealer, personal trainer, etc.) to violate those laws
• An actual, material action taken in furtherance of that scheme

A skilled prosecutor may be able to argue that attempting to acquire PEDs, even if the athlete is unsuccessful, constitutes a material step towards violating anti-doping laws and thus the athlete is guilty of conspiracy.

Peter points out that my answer should include possible laws the conspiracy case could cover. Here is a (non exhaustive) list:

• Possession of/Possession with intent to distribute anabolic steroids without a prescription
• Sale of anabolic steroids without a prescription
• Forgery of a medical document
• Fraud

The athlete and provider of steroids may also be in violation of any number of local statutes regarding drug possession, fraud, and forgery. Moreover, if the sport is a contact sport such as boxing or MMA, the athlete may face criminal and/or civil charges for injuries inflicted on opponents.

Answer 3

Let's look at the WADA Code which many sport governing bodies have adopted. This has 11 categories of anti-doping rule violations. The first 2 could be relevant to your question.

The first "2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample" would clearly not apply as no prohibited substance would have been taken.

The second "2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method" is more interesting. The second paragraph of this states -

2.2.2 The success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed

In your scenario, I would consider the athlete to have attempted to use a prohibited substance albeit unsuccessfully. Hence, I believe that this would still a doping rule violation.