THE SO-CALLED doping scandal that has hit Indian athletics has a far direr consequence than merely a few headlines or mass reshufflings within the centers of excellence – erstwhile training nucleuses, and now infamously known as the breeding grounds for tainted drug samples. Doping is an aspect of sport that has become a constant thorn in most stakeholders’ sides. And, with athletes in many global sports succumbing to the ‘performance enhancing drug’ (“PED”) addiction, this plague is here to stay.
Some sports become poster-children for how a sport should not be – Track & Field, Cycling and Baseball, for example. Others remain more stringent and with fewer runaway delinquency issues. Keeping in mind that the funding for developing and producing ‘untraceable’ PEDs is at the very least 100 times more than for developing mechanisms to manage and control the use of such PEDs, this is always going to be an uphill battle. And in many cases, a losing battle at that.
North America’s Major League Baseball (“MLB”) has been mired in many scandals over the years, but none of them have led to rampant indictments and tearing down of legends as has the doping scandal of the ‘90s and 2000’s. The great home run chase in 1998 between Mark McGwire and Sammy Sosa of Roger Maris’ record 62 home runs was one of the most exciting seasons in MLB history. It led to a revived interest in a waning sport at the time, and created a hero out of McGwire – ‘Big Mac’ as he was popularly known- especially when he broke the record and amassed a 70 home run season. The sport was thought to be revived, and new heroes were spotted and idolized. That is, until the truth came to light, as to how legends were made. MLB had always followed a somewhat less onerous drug testing policy, and over the years, there was a trend whereby baseball players – pitchers or batters alike – started becoming bulkier, stronger, would recover from their injuries at breakneck speed, and were also able to maintain their excellence until they were in their late 30s or even early 40s. There were many reasons to suspect PEDs as behind the sudden surge in record breaking performances, but one got the feeling that the national pride would take a fatal hit as would the credibility of the nation’s favorite pastime if the idols and the sport itself were ‘out-ed’ and burnt at the stake.
Baseball is a sport along with American Football that is more than just an athletic or recreational activity – it is a part and parcel of American culture. So, to act on unsubstantiated rumors was too large a risk to take in the late 90’s and early 2000’s. Instead, MLB slowly but steadily strengthened its drug testing procedures, and once the systems were in place, a witch-hunt of McCarthy-like proportions began. It spiraled when Barry Bonds, a polarizing African-American ball player broke the home run record in 2001, with 73 home runs. More than his sudden surge to power hitting, was the scrutiny as to how he had become more muscular and stronger, despite the fact that we was in his mid-30s before the transformation took place. By the mid 2000’s there were significant breakthroughs, due in part to the heightened drug testing, and the skepticism that each new record in MLB was accorded by the once-doting public. The Bay Area Laboratory Co-operative (“BALCO”), which allegedly supplied the PEDs to the baseball players, was investigated by the United States Anti-Doping Agency (“USADA”), and a scandal was born. Today, many of the once-idolized baseball players have been, or are currently in the process of being indicted by a grand jury at various levels across the U.S.
While the BALCO steroid scandal is a prime example of illegality in sports, what has really taken a hit is the brand of MLB. Nothing scuttles the image of an athlete or a sport more than alleged PED usage. Philandering, tax evasion, or even assault & battery can be forgiven by fans and sponsors alike over time, but nothing hurts an athlete’s popularity or bankability more than PED usage. Similarly, it is a stain on the sports industry if there is the slightest hint of illegality with regard to the veracity of one’s performance, or the integrity of the sport overall. This is why MLB is still reeling.
From a fan’s perspective, and thus from an investor/sponsor’s perspective, nothing hurts the credibility or brand of an athlete, property, or event than an ethical issue of veracity. There are some voices which suggest that since drug-testing can never be foolproof, one should consider legalizing PEDs so as to ensure a level playing field. This is impractical, and a misconception. First of all, it will never be a level playing field, since certain athletes in certain countries will always have access to better-funded R&D and hence a wider array of PEDs that will surpass those ‘less privileged’ from an access standpoint. More importantly, there is also a public policy reason behind not legalizing PEDs – they are extremely dangerous for athletes to regularly consume, and have adverse effects on every aspect of an athlete’s physical, mental, and physiological well-being. Legalizing PEDs will lead to mayhem, and should never be encouraged.
For stakeholders, PED usage in a league or by an athlete has a devastating monetary and brand impact. And, while, building in contractual limitations for athletes or leagues from an inhibitor effect standpoint with regard to PEDs is more or less standard in most Sports law related contracts, there is little that one can do to salvage one’s brand if a league, sport, or athlete is considered tainted. Sure, one can introduce liquidated damages for breaches related to PED usage or ineffective testing systems, and of course, termination of such contracts is enforceable. However, one can’t repair the damage to the brand and to the image, since it is unquantifiable. Therefore, the breach may be material from a legal standpoint, but from an image-reparation standpoint for any stakeholder, it is an immaterial breach, because the damage has already been done.
PED-usage and match-fixing are the two nemeses of the sports industry. In most developed sports economies, a scandal such as the Indian athletics scandal would be irreversible, and lead to millions of dollars in losses. However, the one bronze lining behind this very dark monsoon cloud is that Indian sports other than cricket have received such little funding or attention, that to establish stringent dope-testing systems, synchronize the infant NADA with global policies and compliances, and to thus ensure cleaner sports and athletes is not a herculean task today. This is what must be done, to ensure that in India the athletes, the sports, and the business of sports can put themselves in a position where the integrity of the brand (once it is created), is impregnable, or close to it. A rude awakening it might be, but fortunately for once, India’s sports industry is young enough to learn from this alarming wake up call, even if this is an immaterial breach.
