Using Performance-Enhancing Drugs and in World of Sport

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Introduction

The use of performance enhancing drugs (PEDs) has been a major concern over the recent past (Saka 341). The use of these substances is not a new thing in the world of sports. Dating back to three centuries ago in antiquated Greece, athletes would appear for an event after consuming all sorts of concoction to stimulate their body. The athletes who consumed these substances had one objective in mind, that is, to gain an edge over their rivals. Successful athletes became idols and were heavily rewarded (Whitman 26).

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Nothing has changed from that point forward. Athletics is still a highly regarded event in our society today. Triumphant athletes are showered with accolades and profound respect while being remunerated with cash and elevated status. Therefore, athletes are not there to contend, but to win. In the view of this reality, it is not hard to comprehend why many athletes nowadays are risking everything, including their lives for a hypothetically simple way to triumph (Saka 342).

According to sport scientists, the use of PEDs dilutes the meaning and significance of sports to society. They emphasize that if these substances were to be banned, then the anti-doping agencies should be given power to deter, detect and punish the offenders. Therefore, the main challenge facing the sporting fraternity is the best and effective ways of tackling doping among athletes (Whitman 26). The PEDs issue is very intricate since there are individuals and entities that support its use, while the majority is opposed to it. According to the proponents of PEDs, there are numerous authorized substances that are available to athletes that may be considered to be PEDs. However, the critics argue that banned PEDs pose higher health risks than the legal substances (Granddert and Fabian 5).

For his reason, this paper will explain the reason why PED is considered as a problem in the sports. The paper will also explore the U.S. government’s response to the use of PEDs among athletes. The response will be in terms of legislative proposals, court decisions and other initiatives or programs. In addition, the study will look at the strengths and weaknesses of these responses and suggest possible solutions. However, before we proceed it is very important to understand what PEDs are and health risks they pose to athletes.

Definition and history of Performance Enhancing Drugs

PEDS are substances (drugs and blood products) used by professional athletes to enhance their ability to perform beyond their normal capacity (Granddert and Fabian 5). The most common PEDs include anabolic steroids, Somatropin (human growth hormone), Nandrolone, Stanazol, Amphetamine and many more. Steroids are artificial testosterones that help to promote muscle growth. Somatropin is a man-made cell and tissue growth stimulant. It also helps in the regeneration of the human body (Whitman 28). On the other hand, Nandrolone is semi synthetic anabolic steroid mainly used for muscle growth, increased production of red blood cells, and growth of bones. Stanazol is also an anabolic steroid that acts as an alternative to Nandrolone. Last but not least, amphetamine is a strong central nervous refresher, which enhances athlete’s level of awareness (Whitman 29).

It is important to note that the use of any illegal PEDs in professional sports is commonly known as doping (Saka 342). Besides denting the image of the game, the use of performance enhancing drugs poses serious health risks to athletes. The use of steroids can cause serious psychosocial crisis, severe organ (heart and liver) damage, impotence, and muscle and bone injuries among other problems. On the other hand, growth hormones and genetic therapy may cause cancerous growths, impotence, heart and thyroid problems, and excessive growth of bones and tissues (NIDA Info Facts 1).

Studies show that, over the last decade, athletes have resorted to very risky substances and techniques to enhance their performance. The main objective of using these illegal substances is to increase power and muscles, minimize body recovery time and body fats, and enhance the capacity to exercise for long hours. In clear terms, athletes use these drugs to gain competitive advantage over their rivals (Saka 342). Besides steroids and growth hormones, there are other techniques used to boast the performance level among athletes, which include blood oxygenation enhancement. Blood oxygenation enhancement is a technique that helps to enhance red blood cell concentration at an abnormal level for more oxygen supply (Whitman 30).

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The use of anabolic steroids dates back to1930 when the German scientists made a mark in the field of medicine by creating the first synthetic testosterone. The innovation was targeting men who were suffering from a testosterone deficit (Granddert and Fabian 7). Anabolic testosterone was used in the 2nd World War to boast the stamina and performance of the soldiers. The first case of testosterone use in professional sports was reported in the 1950s. The culprits were mostly wrestlers and power lifters from the Soviet Union. In the late 50s, a U.S. scientist by the name Ziegler created Dianabol, which was an anabolic steroid with limited side effects. This invention led to increased use of anabolic steroids in sports, particularly among wrestlers. It was during this period that the International Olympic Council decided to ban the use of steroids in Olympic sports. During the 1960s, the use of steroids became rampant in the U.S. professional sports (Granddert and Fabian 8).

The use of performance enhancing drugs became popular in the late 1990s, when the famous rivalry between Lewis and Johnson was tarnished by steroid allegations. Johnson was stripped of his medal after he tested positive for the use of Stanazol, which is another form of an anabolic steroid (Granddert and Fabian 8). In the same year, the Tour de France competition was also marred with steroid controversy. Several cyclists and coaches were suspended due to this. Since 2000, many athletes have been suspended or banned from participating in professional sports because of the same reason with the latest casualty being Lance Armstrong (NIDA Info Facts 2).

The use of steroid has made doping a major topic among sports journalists and politicians. In the 2004 State of the Union address, the American President raised his concern on the increasing cases of steroid abuse among professional athletes and youths. This prompted the U.S. Congress to amend the Anabolic Steroid Act (Haagen 832). Steroid abuse in the U.S. has continued to rise. At the moment, it is no longer an issue among elite athletes only; non-professional athletes and the adolescents have also joined the bandwagon. A study conducted by the National Institute on Drug Abuse in 2008 established that nearly 5 percent of the high school males have used steroids. This has led to a public outcry for the U.S. government to intervene in order to defend the integrity of the sport and save the youths (Granddert and Fabian 8).

The U.S. Government Response to Performance Enhancing Drugs

The use of performance-enhancing drugs in elite sports is a matter that is constantly being debated, and analyzing the role of the U.S. government is essential in understanding the topic. The elite sports sector in the U.S. is a multi-billion dollar business that generates its proceeds mainly from fans (the general population). Given the revenue generated by the elite sports, they are very important to the country’s economy and, therefore, anything that would affect the credibility of the industry would have far-reaching repercussions. This is why the U.S. government has been doing everything possible to ensure that fans have confidence in athletes (Selig and Robert 35).

Advancements in technology and medicine have led to the proliferation of these illegal substances. These medications improve the capacities of sports athletes, allowing them to perform beyond their normal capabilities. Obviously, before any drug is supplied to the market, it has to pass through the government laboratory to ascertain their safety and long-term effects. Therefore, it is the government’s mandate to safeguard its citizen against any form of harm (Saka 344). The growing cases of the use of performance enhancing drugs among athletes, especially in the Major League Soccer (MLB) have increased the U.S. government’s interest in elite sports. Both steroids and hormones are listed as illegal substances. This means unlawful use of these substances has a penalty similar to the use of narcotics (Arcella 55).

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The ban on the use of illegal substances in the U.S. dates back to 1938 when the first law was passed to prevent distribution of non-prescribed drugs. This was the Federal Food, Drug and Cosmetic Act of 1938 (Federal Food, Drug and Cosmetic Act of 1938 1). In 1970, in response to increased cases of drug abuse, the U.S. government passed the Controlled Substance Act. Besides setting up stiff penalties for the offenders, the Act also created a strict schedule for controlled substances. All the more as of late, in acknowledgement of the reality that illicit trade in substances such as anabolic steroids and somatropin, was becoming too much, the U.S. government made an amendment to the Controlled Substance Act in 1980 to include human growth hormones (Controlled Substance Act of 1990 1). In addition, the congress passed the Anabolic Steroid Act of1990 (Anabolic Steroids Control Act of 1990 2).

The two laws prohibited illegal distribution of steroids and human growth hormones. Contravention of this law earns a minimum of five years and a maximum of ten years in prison. The law also rules out the use of somatropin for aesthetic and athletic performance purpose. However, there was no punishment for sheer possession of human growth hormone (Controlled Substance Act of 1990 1; Anabolic Steroids Control Act of 1990 2). In 2007, a case between the United States v. Pfizer led to a fine of over $34.7 million for selling Somatropin without a clear label knowing that they could land in the wrong hands. The fine was only to defer prosecution.

The Anabolic Steroid Act of1990 and the revised Controlled Substance Act did not apply to numerous potential PEDs, for example, food supplements that had anabolic effects and possibly negative side effects. These food supplements are commonly referred to as steroid precursors. The most well-known “steroid precursor” is androstenedione. For that reason, the U.S. government ratified the Dietary Supplement Health and Education Act of 1994 to regulate the use of food supplements that were considered to have harmful side effects or unsafe for human consumption. Prior to the enactment of this law, many people had lost their lives because of using L-tryptophan, a food supplement with anabolic effects. The Dietary Supplement Health and Education Act placed the burden of proving whether a food supplement was safe or not safe squarely on the Food and Drug Administration (FDA) (Dietary Supplement Health and Education Act of 1994 3).

Even after the enactment of the Dietary Supplement Health and Education Act of 1994, supplements with anabolic effects were still widely available. As a matter of fact, the use of supplements with anabolic effects became a subject of national debate. These debates increased significantly when two professional athletes were reported to have died of the same substances. As a result, the U.S. government sent warning letters to all the companies manufacturing supplements with anabolic effects, including androstenedione. Subsequently, the U.S. Congress passed the Anabolic Steroid Act of 2004 to include nutritional supplements. The Act incorporated stiffer penalties on the offenders (Anabolic Steroid Act of 2004 4; Granddert and Fabian 18).

The increase in cases of doping among professional athletes led to the establishment of the United States Anti-Doping Agency (USADA) in 2000 (USADA 1). This body was created by the U.S. Olympic Committee after the recommendation by a Taskforce set by the government. The U.S. Olympic Committee is an organization set up under the Ted Stevens Olympic and Proletarian Sports Act. USADA brings together nearly 50 national sports groups. On the contrary, most sports leagues in the United States, for example, the National Football League (NFL), National Basketball Association (NBA) and Major League Baseball (MLB) have their own anti-doping rules in conjunction with the athletes’ bodies. However, it should be noted that anti-doping policies used in all the leagues in the U.S. must comply with the global anti-doping policies. In addition, USADA has powers to arbitrate over appeals and conduct more investigations of doping cases. In 2012 alone, USADA conducted nearly 9000 tests on athletes and sanctioned 36 (USADA 2).

The most recent doping case involved Lance Armstrong and his cycling teammates. On January 2013, the athlete admitted to have used PEDs. This is after the United States Anti-Doping Agency had carried out an independent investigation and confirmed the allegation. USADA banned Armstrong from ever competing in any event and stripped him of all his titles. USADA’s mandate expired in 2011 was extended to 2020 (Granddert and Fabian 15; USADA 2).

Anti-doping policies in the major sports leagues in the U.S. are based on collective bargaining agreement, which presents a genuine prospect of reaching an agreement on compulsory indiscriminate drug testing. The collective bargaining agreement was initiated in 2002 by the major league baseball and has been adopted by other leagues. Under the collective bargaining agreement, the use of anabolic steroids and nutritional supplements with anabolic effects is highly prohibited. A compulsory random test must be conducted on players three times in a year. First time offenders are subjected to treatment rather than being suspended (Granddert and Fabian 19; Haagen 833).

The strengths and weaknesses of the U.S. Anti-Doping Policies

In the early 2010, the much hyped fight between Floyd Mayweather Juniors and Manny Pacquiao failed to materialize due to a disagreement over doping test. Mayweather was resolute on the Olympic-style of testing for PEDs, which subjects athletes to a continuous random test until the day of competition. On the other hand, Pacquiao insisted on the Nevada-style of testing PEDs, which requires only a single urine test after or before the fight. The two parties could not reach an agreement because the superstitious Pacquiao believed that a removal of blood would make him frail before the fight. This incident reminds us that the fight against PEDs in the U.S. is far from being won (Granddert and Fabian 19).

Just like the chaotic boxing regulatory system, the approach used by the three major leagues (NBA, NFL, and MLB) in the U.S.is significantly flawed (Granddert and Fabian 20). As already been mentioned, the three leagues have their own anti-doping policies. The structures for regulating doping in the three leagues are based on the collective bargaining agreement between the club owners and the players union. The approach used has considerably failed to tackle the problem of doping. The loopholes in this approach are partly attributed to the conflict of interests that hampers efficient regulation. In addition, the collective bargaining agreement system is considered by many to be a very lethargic approach to tackling new cases of doping, which gives fraudulent athletes more opportunity to continue their business as usual (Granddert and Fabian 19).

All the athletes playing in the major leagues in the U.S. are unionized. According to the National Labor Relations Act of 1984, unionized employees through their association must negotiate employment terms with their employers in good faith. For this reason, employers do not have the authority to unilaterally amend terms of employment as they wish. Therefore, the ant-doping policies in various leagues can only be set or modified through a negotiation between the club owners and players’ associations. Neither the league nor the players associations can single-handedly decide on any drug policy. In other words, the terms of any drug policy have to be carefully negotiated between the two parties (National Labor Relations Act of 1984 5; The U.S. Congress 3).

However, the proponents of collectively bargained policy believe it is the most excellent and all-encompassing anti-doping initiative because if: (a) offers an exhaustive list of illegal substances (b) provides the anti-doping agency more powers under the rational cause testing clause (c) not only penalizes the players, but also the personnel involved like the trainers and coaches and (d) offers an excellent treatment for first time offenders. The NFL carries out their random tests throughout the year, whereas the MLB conducts their trials during the sporting season. On the other hand, NBA conducts their trials during training the preparation stage (Taylor 234; Granddert and Fabian 23).

Nonetheless, the loopholes in the loopholes in the collectively bargained policies are obvious. For example, in the NFL in-season random testing is arranged in a manner that it is predictable to players. As a result, players can outfox the system by using rapid acting steroids and concealing agents. By exempting tests during game days, the system gives athletes more time to flush the drugs off their bodies. In addition, urine tests can be swindled by using another individual’s urine, like in the case of Lance Armstrong and his cycling teammates (Taylor 236).

The Anabolic Steroid Act of 2004 provides a confidentiality clause. This clause protects offenders from the media and the general public, which is a good and a bad thing. It is a good thing since it gives first time offenders a second chance. On the other hand, it is bad since it denies the public access to information, which is a universal right. Basically, the clause minimizes doping penalty since it protects players from rebuked by the public. This clause is suspicious can lead to a general mistrust of the entire law. It seems the U.S. anti-doping policies are not meant for absolute eradication of doping in sports.

The Minnesota labor law has also made the Anabolic Steroid Act of 2004 ineffective. In the recent past, two players from Minnesota Vikings who were suspended for the use of performance enhancement drugs sued the club for violating the Minnesota labor law. They argued that the drugs were taken outside the workplace. The case is still in court up to date. As a result, the club had to lift the suspension till the case is decided. This means the local laws can render the steroid policy ineffective, thus affecting the agency’s ability to regulate the use of performance enhancement substances (Granddert and Fabian 21).

The fact that players associations and the club owners are involved in negotiating the structures for regulating doping is creating a conflict of interest that could derail the war against the use of illegal substances in professional sports. As much as sports create some form of fanaticism, they are still commercial entities for those involved, particularly club owners and athletes. Both parties have a significant interest in the club and the league at large. Therefore, when they are negotiating the terms of anti-doping policy they have to put their interest first. As a result, they are likely to establish relaxed and defective policies with numerous escape routes (Whitman 45).

Not only is the U.S. anti-doping policies affected by the conflict of interest, but it is also by a simple fact that the law can only be set or amended through a collective negotiation. As already been explained, the National Labor Relations Act of 1984 requires that anti-doping policies be negotiated since most professional athletes are unionized. Neither club owners nor players’ unions can independently promulgate anti-doping policy. The negotiations have to address new developments, for instance, new substances in the market and the methods used to evade drug tests. Therefore, negotiations can take a considerably long period of time, which can way down the effort to tackle new doping developments. In a nutshell, as long as the doping policy in the U.S. major leagues will be based on collective bargaining agreement, the war on illegal substances will be pointless (Whitman 45).

Alternative Solution

The loopholes in the U.S. anti-doping policies can be corrected by embracing the approach used by the World Anti-Doping Agency (WADA). WADA has unilateral and autonomously executed anti-doping rules, which have proven to be effective in regulating the use of PEDs in the global sports (WADA 1). WADA’s anti-doping policy is more stringent and effective compared to anti-doping policies used in the U.S. major leagues. WADA’s policy provides for extremely harsh penalties for the offenders. For example, in the U.S. major league, first time offenders and second time offenders are slapped with a four-month and eight-month suspension respectively. On the other hand, WADA slaps first time offenders with a two-year suspensions, whereas second time offenders are banned for life (WADA 2).

WADA’s code is very ruthless and strict with regard to the use of performance enhancing drugs. The code is based on the principle of strict liability where the penalty is imposed whether the athlete used the substances unknowingly or deliberately. The code not only prohibits the use of steroids and growth hormones, but also masking agents and doping techniques. All the leagues under the WADA code must carry out in-competition and out-of-competition tests on a regular basis. The in-competition testing describes tests that are carried out twelve hours ahead of the competition. The out-of-competition tests are tests that conducted even when the athletes are not actively competing. The tests must be carried out throughout the year (WADA 3).

WADA conducts both objective tests and random tests. In objective tests, athletes are picked on non-randomly, but not limited to, the following: (a) withdrawal from competition (b) actions signifying use of banned substances, and (c) abrupt improvement in performance. On the other hand, athletes can be selected randomly from the available list. The selected athletes are not informed until a few hours before the test. The code does not reveal the athletes to be tested, the type of tests to be carried out and the number of tests to be conducted. However, WADA gives athletes the freedom to organize their tests and resources to be utilized. For example, the athletes have the freedom to choose the number of blood tests compared to urine tests to be carried out (World Anti-­Doping Code 3).

According to the WADA code, members have to establish a test pool to facilitate out-of-competition tests. This also helps to keep track of athletes’ locations or whereabouts. Keeping track of the athletes’ whereabouts is very important in carrying out objective tests. This ensures that the tests are carried out without notice and prevents athletes from using the masking agents. All the athletes listed in the test pool are obliged to give information with regards to their whereabouts. Without such information it is almost impossible to conduct tests effectively (World Anti-­Doping Code 4).

Generally, the leagues that embrace WADA’s rules often conduct more tests compared to the major leagues in the U.S. For instance, the anti-doping agencies in both U.S. and Australia, which follow WADA’s code, normally carries a high number of random blood tests in their respective leagues (Saka 346). On the other hand, doping tests in the three major leagues in the U.S. do not allow blood tests, but only urine tests. WADA also prohibits doping techniques that have not been addressed by the major U.S. leagues, which include techniques that enhance oxygen circulation in the body. In other words, the anti-doping policies used by the American major leagues do not address the contemporary doping methods.

The U.S. major leagues have also proscribed substances prohibited by WADA, but have not unequivocally issued a ban on some of the doping techniques prohibited by WADA. It is only the World Boxing Council that prohibits blood doping techniques, for example, infusing blood and blood cells. However, WADA’s policy provides far-reaching testing methods than the world boxing body. WADA’s techniques can prevent incidences where boxers use PEDs during training and get them off their system before the fight (Saka 348).

WADA’s tests are also very extensive than the tests in the U.S. major leagues. While the U.S. major leagues carry out-of-competition or off-season tests, in-season or in-competition tests are normally carried out awfully. As already been mentioned, tests in the U.S. major leagues are always predictable, which gives room for cheating. On the contrary, WADA’s tests are usually conducted on the day of competition and any other day of the year with no advance notice. As a result, athletes competing in the leagues that follow WADA’s policies cannot predict when the tests will be conducted, thus have limited prospects for cheating.

The subject of conflict of interest facing the U.S. major leagues is excellently dealt with by WADA, which is an independent anti-doping agency. In the U.S. leagues, club owners and players association with an interest in the sport are given the mandate of crafting anti-doping rules. The end results are relaxed and defective rules with numerous escape routes. Contracting the anti-doping responsibility to an autonomous body like WADA eliminates the problem of conflict of interest. Contracting an independent body like WADA helps in sheltering outside influence. Independent agencies normally conduct themselves professionally without any form of external pressure. They are the only hope of cleaning up sports.

What keeps WADA independent is the fact that it is mainly funded by the international sports federation and, therefore, had no direct monetary interest in any sport. In other words, WADA does not gain when a certain team or athlete wins a competition. For that reason, it does not care whether an athlete or a club loses or wins a competition as long as they adhere to the anti-doping rules. Another thing that keeps WADA independent is the fact that the international Olympic Committee requires all its associates to join the agency. Therefore, even if the international sports federation was not funding the agency, most countries would still join WADA because of being part of the Olympic movement. For this reason, WADA is not under any form of pressure since its financiers cannot influence it.

WADA’s independence enables it to focus only on one goal, which is cleaning up sports. An autonomous anti-doping body is the best solution for the problem of conflict of interest facing major leagues in the U.S. It is significant to note that having an autonomous body like WADA does not mean that there will never any cases of doping. However, it does tackle the problem more efficiently. An autonomous agency like WADA only faces the overwhelming challenge of getting hold of the offenders and not resolving problems associated with competing interests (WADA 2).

Moreover, it is crucial that the anti-doping agencies have the absolute capacity to unilaterally execute its policies. In other words, anti-doping policies should never be part of a negotiated deal between the interested parties. As exemplified by the system used by the U.S. major leagues, the collective bargaining agreement between the club owners and the players’ association prevents the United States Anti-Doping Agency to effectively execute its mandate. Sports leagues that rely on the collective bargaining agreement to address doping issues among professional athletes are nothing but pretenders (WADA 2).

The U.S. government has to take the bull by its horn by establishing an autonomous anti-doping regulatory system. The best candidate to kick start such initiative is the U.S. congress. The U.S. congress has the legal capacity to implement or be part of such initiatives. They can create an autonomous anti-doping body like WADA and require all the leagues to adhere to its policies. The congress can use its constitutional power to regulate all the professional sports in the U.S. This can be achieved through an enactment of a law that seals all the loopholes created by the collective bargaining agreement or do away with the collective bargaining agreement. Similarly, the U.S. should have a uniform law that is applicable to all states. In addition, the anti-doping policies must be in line with the existing labor laws to avoid a scenario witnessed in Minnesota or congress can amend the labor laws to avoid such conflicts.

The proposed amendments to the American anti-doping policies have a few flaws if any. WADA’s code is considered the best in combating the use of performance enhancing drugs. The only challenge will be getting to convince the club owners and the players’ associations to join the new anti-doping agency. Their interest in the sport supersedes their desire to embrace new methods of combating the use of performance enhancing drugs. The U.S. major leagues are still very conservative in the use blood tests. In addition, proposed amendments should incorporate some of the anti-doping techniques used by the World Boxing Council and are not covered by WADA policy, for example, infusing blood and blood cells (Granddert and Fabian 28).

It is important to note that the execution of anti-doping policies comes at a cost. Since WADA’s code is very thorough and involves frequent random tests, it requires huge amount of resources for hiring new personnel, buying new equipments and carrying constant research on new drugs and doping techniques. New equipments are necessary since the American system mainly relies on urine tests instead of blood tests. In addition, the new agency will be required to work under strict liability. This is because it is very difficult to prove that an athlete has deliberately and decisively taken banned substances. This can only be achieved through strict liability (World Anti-­Doping Code 5).

Conclusion

All the way through the history of sports, athletes have always looked for different ways of outsmarting their challengers. The use of Steroids and somatropin among professional athletes are just some of the latest developments. While there is strong subjective evidence regarding negative effects of the banned substances, many athletes are still using them. The main objective of using these illegal substances is to increase potency and muscles, minimize body recovery time and body fats, and enhance the capacity to exercise for long hours at an elevated intensity.

As a matter of fact, they have devised numerous techniques of outfoxing the system, for example, blood oxygenation enhancement technique. This is partly due to the flawed anti-doping systems used by many countries like the U.S. However, the main concern at the moment is the use of anabolic steroids among the elite and amateur athletes. The offenders know how to circumvent the system due to too many loopholes in the anti-doping policies. For that reason, the U.S. anti-doping approach has to be changed. Major sports leagues should not be given the unreasonable mandate of regulating themselves. Conflict of interest and the consensus building are the major obstacles in executing ant-doping policies in the U.S. The existing state of affairs will not solve doping abuse in the U.S. sports. The government needs to establish an autonomous anti-doping regulatory system, which will help in sealing the loopholes that exist in the current system.

References

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Whitman, Joshua. ‘Winning at All Costs: Using Law and Economics to Determine the Proper Role of Government in Regulating the Use of Performance-Enhancing Drugs in Professional Sports’, University of Illinois Law Review 2. 23 (2008):25-75. Print.

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