Doctor of Philiosophy (PhD) / Since 1998 anti-doping policy has undergone massive change. The level of world-wide cooperation involved in establishing an international anti-doping system is unprecedented in the history of the regulation of performance enhancing substances in sport. Such cooperation and the unipartite nature of public doping discourse give the impression that anti-doping policy is clear, unproblematic and universally acceptable. However, scratching the harmonious surface of modern anti-doping approaches reveals fundamental problems and inconsistencies, the two most basic of which go to the very core of the policy. Basic issues — what constitutes doping and the reasons why we prohibit it — are still unsettled, lack clarity and give rise to many significant operational issues. For instance, the definition of ‘doping’ in doping discourse is quite different from the definition in the World Anti-Doping Code: what is thought of as ‘doping’ is very different from what is punished as ‘doping.’ Moreover, the commonly suggested anti-doping rationales do not adequately explain the present prohibition on the use of performance enhancing substances in sport. In light of this uncertainty, two questions arise: why is there so much confusion and why do we prohibit doping in sport? Desmond Manderson, in his study of the origins of illicit drug laws, has wrestled with a similar question; his conclusions are that drugs have been prohibited more for what they symbolise than their pharmacological properties. This thesis argues that, in a similar way to illicit drug policy, the symbolism of performance enhancing substances in sport has played a major role in the development of anti-doping policy. To demonstrate the influence of such symbolism, three significant time periods in anti-doping history are considered in the thesis: the 1920s, the 1960s and the 1970s. The most formative aspect of symbolism in the 1920s, when anti-doping rules were first passed, was the association between doping and illicit drug taking. The stigma attached to stereotypical images of illicit drug-users contributed to ‘doping’ being viewed as contrary to the amateur ethos and the adoption of a regulatory system modelled on illicit drug policy approaches. In the 1960s, when anti-doping policy began in earnest, illicit drug symbolism was also extremely influential. Concerns regarding drug addiction in sport fuelled fears about the health of the athlete which were prominent in doping discourse at this time. Combined with a strong belief in the power of drugs in general, illicit drug symbolism led to the expansion of the illicit drug model of regulation to include illicit drug style testing. Doping changed in the 1970s with the emergence of training drugs such as anabolic steroids. Steroids became strongly associated with ‘communist’ athletes and were viewed as extremely powerful transforming drugs. A kind of steroid hysteria was thereby created in doping discourse. Simultaneously, the continuing influence of illicit drug symbolism meant that the previously adopted illicit drug model was also applied to steroids. The conclusion of the thesis is that anti-doping policy is not fundamentally a rational system: instead it has been driven much more by emotional factors such as public opinion than rational argument. Such a basis is bound to create confusion and explains many of the problems of current anti-doping policy. The way in which symbolism has led to the regulatory decisions in anti-doping history is summarised as constituting the ‘reactive regulation model’ in the concluding section of the thesis. This pattern of regulation has produced a number of important operational difficulties in current anti-doping law, the prime example being the ‘fallacy’ of in-competition drug testing to deal with the issue of training drugs such as steroids. Finally, it is argued that in light of the reactive nature of anti-doping policy, it is unlikely that recent challenges, such as gene doping and the use of non-analytical evidence, will be treated any differently to past challenges. Anti-doping policy has always been largely driven by reactions to symbolism; there is no reason to suspect this type of approach will change.

Doctor of Philiosophy (PhD) / Since 1998 anti-doping policy has undergone massive change. The level of world-wide cooperation involved in establishing an international anti-doping system is unprecedented in the history of the regulation of performance enhancing substances in sport. Such cooperation and the unipartite nature of public doping discourse give the impression that anti-doping policy is clear, unproblematic and universally acceptable. However, scratching the harmonious surface of modern anti-doping approaches reveals fundamental problems and inconsistencies, the two most basic of which go to the very core of the policy. Basic issues — what constitutes doping and the reasons why we prohibit it — are still unsettled, lack clarity and give rise to many significant operational issues. For instance, the definition of ‘doping’ in doping discourse is quite different from the definition in the World Anti-Doping Code: what is thought of as ‘doping’ is very different from what is punished as ‘doping.’ Moreover, the commonly suggested anti-doping rationales do not adequately explain the present prohibition on the use of performance enhancing substances in sport. In light of this uncertainty, two questions arise: why is there so much confusion and why do we prohibit doping in sport? Desmond Manderson, in his study of the origins of illicit drug laws, has wrestled with a similar question; his conclusions are that drugs have been prohibited more for what they symbolise than their pharmacological properties. This thesis argues that, in a similar way to illicit drug policy, the symbolism of performance enhancing substances in sport has played a major role in the development of anti-doping policy. To demonstrate the influence of such symbolism, three significant time periods in anti-doping history are considered in the thesis: the 1920s, the 1960s and the 1970s. The most formative aspect of symbolism in the 1920s, when anti-doping rules were first passed, was the association between doping and illicit drug taking. The stigma attached to stereotypical images of illicit drug-users contributed to ‘doping’ being viewed as contrary to the amateur ethos and the adoption of a regulatory system modelled on illicit drug policy approaches. In the 1960s, when anti-doping policy began in earnest, illicit drug symbolism was also extremely influential. Concerns regarding drug addiction in sport fuelled fears about the health of the athlete which were prominent in doping discourse at this time. Combined with a strong belief in the power of drugs in general, illicit drug symbolism led to the expansion of the illicit drug model of regulation to include illicit drug style testing. Doping changed in the 1970s with the emergence of training drugs such as anabolic steroids. Steroids became strongly associated with ‘communist’ athletes and were viewed as extremely powerful transforming drugs. A kind of steroid hysteria was thereby created in doping discourse. Simultaneously, the continuing influence of illicit drug symbolism meant that the previously adopted illicit drug model was also applied to steroids. The conclusion of the thesis is that anti-doping policy is not fundamentally a rational system: instead it has been driven much more by emotional factors such as public opinion than rational argument. Such a basis is bound to create confusion and explains many of the problems of current anti-doping policy. The way in which symbolism has led to the regulatory decisions in anti-doping history is summarised as constituting the ‘reactive regulation model’ in the concluding section of the thesis. This pattern of regulation has produced a number of important operational difficulties in current anti-doping law, the prime example being the ‘fallacy’ of in-competition drug testing to deal with the issue of training drugs such as steroids. Finally, it is argued that in light of the reactive nature of anti-doping policy, it is unlikely that recent challenges, such as gene doping and the use of non-analytical evidence, will be treated any differently to past challenges. Anti-doping policy has always been largely driven by reactions to symbolism; there is no reason to suspect this type of approach will change.

Plusieurs problèmes liés à l'utilisation de substances et méthodes interdites de dopage dans les sports posent de grands défis à la gouvernance antidopage. Afin de lutter contre le dopage, certains pays ont mis en oeuvre des cadres juridiques basés exclusivement sur le droit pénal tandis que d'autres pays ont plutôt misé sur des mécanismes et organismes spécialisés trouvant fondement en droit privé ou sur un régime hybride de droit public et privé. Ces différentes approches réglementaires ont pour conséquence de faire en sorte qu’il est très difficile de lutter efficacement contre le dopage dans les sports, notamment parce que leur exécution requiert un degré de collaboration internationale et une participation concertée des autorités publiques qui est difficile à mettre en place. À l’heure actuelle, on peut par exemple observer que les États n’arrivent pas à contrer efficacement la participation des syndicats et organisations transnationales liés au crime organisé dans le marché du dopage, ni à éliminer des substances et méthodes de dopage interdites par la réglementation. Par ailleurs, la gouvernance antidopage basée sur les règles prescrites par l’Agence mondiale antidopage prévoit des règles et des normes distinctes de dopage distinguant entre deux catégories de personnes, les athlètes et les autres, plaçant ainsi les premiers dans une position désavantageuse. Par exemple, le standard de responsabilité stricte sans faute ou négligence imposé aux athlètes exige moins que la preuve hors de tout doute raisonnable et permet l'utilisation de preuves circonstancielles pour établir la violation des règles antidopages. S'appliquant pour prouver le dopage, ce standard mine le principe de la présomption d'innocence et le principe suivant lequel une personne ne devrait pas se voir imposer une peine sans loi. D’ailleurs, le nouveau Code de 2015 de l’Agence attribuera aux organisations nationales antidopage (ONADs) des pouvoirs d'enquête et de collecte de renseignements et ajoutera de nouvelles catégories de dopage non-analytiques, réduisant encore plus les droits des athlètes. Dans cette thèse, nous discutons plus particulièrement du régime réglementaire de l’Agence et fondé sur le droit privé parce qu’il ne parvient pas à répondre aux besoins actuels de gouvernance mondiale antidopage. Nous préconisons donc l’adoption d’une nouvelle approche de gouvernance antidopage où la nature publique et pénale mondiale du dopage est clairement reconnue. Cette reconnaissance combiné avec un modèle de gouvernance adapté basé sur une approche pluraliste du droit administratif global produira une réglementation et une administration antidopage mieux acceptée chez les athlètes et plus efficace sur le plan des résultats. Le nouveau modèle de gouvernance que nous proposons nécessitera toutefois que tous les acteurs étatiques et non-étatiques ajustent leur cadre de gouvernance en tenant compte de cette nouvelle approche, et ce, afin de confronter les défis actuels et de régler de manière plus satisfaisante les problèmes liés à la gouvernance mondiale du dopage dans les sports. / Several issues which are related to the use of prohibited substances and doping methods in sport pose great challenges to the anti-doping governance. In order to fight against doping, some countries have implemented legal frameworks which are based exclusively on criminal law while other countries have relied on specialized mechanisms and bodies, either based exclusively on private law or on a hybrid regime of public and private law. These different regulatory approaches make the fight against doping in sport severely complicated as its success requires a degree of international cooperation as well as the concerted involvement of public authorities. However, such cooperation is often difficult to realize. At present, it can be observed, for example, that nation states are unable to effectively prevent transnational organized crime syndicates and organizations from involving in the doping market nor from restricting and eliminating prohibited doping substances and methods through their regulatory frameworks. Furthermore, the anti-doping governance framework which is based on the rules and standards of the World Anti-Doping Agency (WADA) distinguishes athletes from nonathletes, placing the former in a disadvantageous position. For example, the standard of strict liability of no fault or negligence imposed on athletes requires less than proof beyond a reasonable doubt and allows the use of circumstantial evidence to establish an anti-doping rule violation. This standard of proof undermines the presumption of innocence principle and the principle of no penalty without a law. Moreover, the new World Anti-Doping Code of 2015 will empower the National Anti-Doping Organizations (NADOs) with investigative and intelligence-gathering powers and will add new categories of non-analytical based doping categories, while reducing the rights of athletes even further. In this thesis, we discuss specifically the private law-based regulatory framework of WADA because it fails to meet the current needs of global anti-doping governance. We therefore advocate for the adoption of a new approach where the penal and public global nature of doping is clearly recognized. Such recognition, combined with a suitable governance model based on a pluralistic approach of global administrative law, will produce a better accepted and more effective anti-doping governance among athletes and will also be of benefit for non-athletes. However, the new governance model that we propose will require all state and non-state parties to adjust their governance frameworks to meet the current challenges and problems, related to the global governance of doping in sport.