Marquette Sports Law Review Volume 19 Article 7 Issue 1 Fall Are We All Dopes? A Behavioral Law and Economics Approach to Legal Regulation of Doping in Sports Shayna M. Sigman Follow this and additional works at: http://scholarship.law.marquette.edu/sportslaw Part of the Entertainment and Sports Law Commons Repository Citation Shayna M. Sigman, Are We All Dopes? A Behavioral Law and Economics Approach to Legal Regulation of Doping in Sports, 19 Marq. Sports L. Rev. 125 (2008) Available at: http://scholarship.law.marquette.edu/sportslaw/vol19/iss1/7 This Symposium is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact [email protected]. ARE WE ALL DOPES? A BEHAVIORAL LAW & ECONOMICS APPROACH TO LEGAL REGULATION OF DOPING IN SPORTS SHAYNA M. SIGMAN* INTRODUCTION You should care about the prevalence of performance-enhancing drugs (PEDs) and doping methods currently being used and abused within elite sports. You should care, not because teenagers and youth are harmed by this, even though they most likely are. 1 You should care, not because elite athletes or those attempting to become elite athletes are harmed by this, even though they most likely are. 2 Whether you are a recreational athlete or a couch potato, whether you are a serious sports fan, a casual fan, or not a fan at all, you should care about the fact that it is highly likely that you have been harmed by doping in sports. Associate Professor of Law, Jacob D. Fuchsberg Touro Law Center. 1. See, e.g., Steroid Use in Sports: Hearing on H.R. 1862 Before the H.R. Gov 't Reform Comm., 109th Cong. (2005); Joshua H. Whitman, Note, Winning at All Costs: Using Law & Economics to Determine the Proper Role of Government in Regulating the Use of Performance-EnhancingDrugs in ProfessionalSports, 2008 U. ILL. L. REv. 459, 477-80 (2008) (noting that "there is strong evidence linking the troubling increase in teen PED use to the prevalent use of these substances by professional athletes," even if such evidence "is not empirical in nature"); Hector Del Cid, Winning at All Costs: Can Major League Baseball's New Drug Policy Deter Kids from Steroids and Maintain the Integrity of the Game?, 14 SPORTS LAW. J. 169, 170-71 (2007) (arguing in favor of more education aimed toward youth regarding performance-enhancing drugs); Colin Latiner, Steroids and Drug Enhancements in Sports: The Real Problem and the Real Solution, 3 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 192, 210 (2006) (identifying the real problem with steroids as amateur and youth use); Denise A. Garibaldi, The Challenge and the Tragedy, 40 NEW ENG. L. REV. 717, 717-21 (2006) (detailing the suicides of two young athletes, Rob Garibaldi and Taylor Hooton, who each took steroids); Charles A. Palmer, Drugs vs. Privacy: The New Game in Sports, 2 MARQ. SPORTS L.J. 175, 191-93 (1992) (describing the government interest in testing high school students for the use of anabolic steroids). 2. See, e.g., Whitman, supra note 1, at 492-95 (describing the "winner's bias" as a cognitive failure among athletes that causes them to act "socially suboptimally"); Shi-Ling Hsu, What is a Tragedy of the Commons? Overfishing and the Campaign Spending Problem, 69 ALB. L. REv. 75, 95-99 (2005) (identifying the incentive each athlete has to "cheat" and labeling the use of PEDS as a tragedy of the commons); Edward J. Bird & Gert G. Wagner, Sport as a Common PropertyResource: A Solution to the Dilemmas of Doping, 41 J. CONFLICT RES. 749, 752 (1997) (arguing that the incentive to dope is a common pool resource problem that athletes face and offering informal norm encouragement as one solution to this problem). MARQUETTE SPORTS LA W REVIEW [Vol. 19:1 You are probably not even aware that you have been harmed; when it comes to the cognitive failings that stem mostly from a lack of information, misinformation, and the heuristics we rely upon within our neurological framework, 3 if you were more aware of this harm and why you should care, the damage would probably not be as significant. 4 The problem is that your entire reality about that which is elite and humanly possible has been altered, and this might be one steroid-ripped genie that will not fit back in the lamp. This Article begins by leading with its conclusion-that the unidentified and unquantified yet prevalent use of PEDs and other doping methods has changed the way in which we understand elite human achievement and how we relate to that, and it has changed us for the worse. It focuses on this harm because we live in a society where we have been oversaturated with reports and discussions of drugs within sports. Call it steroid-fatigue, if you will. We are living in the Steroid Era, the Age of the Asterisk. Day in, day out, the news on the sports pages features stories of the juicers, the dopers, and the cheats. When we hear the names of elite athletes, such as Barry Bonds,5 Roger Clemens, 6 Floyd Landis, 7 Marion 3. Research into cognitive biases and heuristics stems back to Kahneman and Tversky's Nobel Prize-winning contribution to economics identifying prospect theory, i.e., the curious differences in how people perceive risk based on whether loss or gain is involved. See Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Making Under Risk, 47 ECONOMETRICA 263 (1979). Heuristics and biases, such as the representativeness heuristic (linking objects that appear similar, but are not, together) or the availability heuristic (skewed bias toward that which is memorable or extreme) are further explored in DANIEL KAHNEMAN ET AL., JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 3 (1982). 4. Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. LEGAL STUD. 199, 200 (2006) (explaining how "legal policy may respond best to problems of bounded rationality not by insulating legal outcomes from its effects, but instead by operating directly on the boundedly rational behavior and attempting to help people either to reduce or to eliminate it"). For examples of how people respond once they are shown a specific cognitive bias, see Neil D. Weinstein & William M. Klein, Resistance of PersonalRisk Perceptions to DebiasingInterventions, in THOMAS GILOVICH ET AL., HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 313-23 (2002) (how to- and how not to-debias "optimism bias"); Baruch Fischoff, Debiasing in KAHNEMAN ET AL., supra note 3, at 422-44 (noting that merely telling someone about a bias is insufficient to overcome it). See also Gregory Besharov, Second-Best Consideration in CorrectingCognitive Biases, 71 S. ECON. J. 12 (2004) (noting that the best forms of correcting cognitive biases come from those who are bias free, and, in the alternative, warning that some forms of correction may make people worse off, because there might be an unrecognized offsetting bias). 5. The most comprehensive account of Barry Bonds' use of performance-enhancing drugs is MARK FAINARU-WADA & LANCE WILLIAMS, GAME OF SHADOWS (2006). For a perspective on the personality of Bonds, see JEFF PEARLMAN, LOVE ME, HATE ME: BARRY BONDS AND THE MAKING OF AN ANTIHERO (2006). 6. Roger Clemens was perhaps the "biggest" name to appear in the Mitchell Report, the culmination of former Senator George Mitchell's year and a half long investigation into the use of performance-enhancing drugs in MLB. GEORGE J. MITCHELL, REPORT TO THE COMMISSIONER OF BASEBALL OF AN INDEPENDENT INVESTIGATION INTO THE ILLEGAL USE OF STEROIDS AND OTHER 2008] ARE WE ALL DOPES? Jones, 8 and countless others, our minds immediately associate the athletes with the use of PEDs, such as anabolic-androgenic steroids (AAS) rather than actual athletic achievement. To speak solely of steroids ignores the veritable medical cabinet treasure trove of substances available to the millennial athlete, including: various hormones, notably human growth hormone (hGH) and erythropoietin (EPO); stimulants; diuretics; and beta blockers, along with masking agents to avoid detection of any of these substances. 9 Designer drugs are being created specifically to enhance performance while still remaining under the radar of increasingly aggressive drug testing that many athletes face. 10 And some modem doping methods do not involve ingesting drugs at PERFORMANCE ENHANCING SUBSTANCES BY PLAYERS IN MAJOR LEAGUE BASEBALL 167-174 (Dec. 13, 2007) available at http://files.mlb.com/mitchrpt.pdf [hereinafter MITCHELL REPORT]. Perhaps concerned about the appearance that someone else had "scooped" him on the Clemens-steroid connection, Jose Canseco, the self-proclaimed "juicer," recounts how when he wrote Juiced, his original tell-all book about the prevalence of steroid use in MLB, the publisher requested that he delete his suspicions about Roger Clemens. JOSE CANSECO, VINDICATED: BIG NAMES, BIG LIARS, AND THE BATTLE TO SAVE BASEBALL, 3 (2008). 7. On September 20, 2007, the North American Court of Arbitration for Sport/AAA Panel found that despite the testing lab's failure to follow proper procedure, the evidence still showed that Floyd Landis had violated the World Anti-Doping Code (WADC) by taking synthetic testosterone during his yellow-jersey winning 2006 Tour de France campaign. Landis received a two-year suspension from cycling. The Court of Arbitration for Sport (CAS) upheld the suspension dating back to January 30, 2007, and also ordered Landis to pay $100,000 in legal fees to contribute to the expenses incurred during the arbitration of his case, due to the nature of how he mounted his defense and the hardships he imposed on the United States Anti-Doping Agency (USADA). See United States Anti-Doping Agency and Floyd Landis, Arbitration Award Case No: 30 190 00847 06, award of Sept.