Let's assume one, or maybe a few, players in a Premier league team use doping independently and with no involvement at all from their club. Should the team or organisation as a whole be punished?
Actual Guilt by Association
In a collective sport like football, there is no way around introducing a principle of guilt by association to doping offenses. And to do so is not just prudent and practically necessary, I want to argue that it is also morally justified. Only by introducing an element of collective punishment, by putting the fate of teams and clubs in jeopardy, even if there is no direct institutional culpability, could anybody reasonably hope to effectively fight at least this systemic, but not systematic kind of doping.
Now, guilt by association does sound like a decidedly immoral principle. But if it can be defended anywhere, it is in football and with respect to doping, where there is no alternative to judge even strictly individual doping fairly and sanction it effectively.
Treating non-doping players on a doped team as guilty-by-association and punishing clubs collectively is practically necessary and morally justified.
Couldn't we limit ourselves to suspending offenders and stripping players of titles? In short, no.
Let me explain why: Football is a team sport. While individual players put their efforts into the team, their contributions are immediately subsumed in the team's performance. Every piece of play - any counterattack, pressing wave, or set piece defence - involves any number of players both on and off the ball. While obviously some players' impact is larger (think Messi for Argentina) and others is smaller (think Mario Götze against France at Euro '16), it is all the same impossible to tease out anyone's share in the result in a measurable way.
That means that we can't simply subtract a chemically enhanced performance, even quite apart from the confidence you may or may not have in everyone else being 'clean'. There is no clean team with doped players, and there are no clean players on a doped team - just as there are no unpolitical people in a fascist society, and no non-fascist societies with fascist institutions.
So, it seems to me that there are only two choices left: only suspend the individual player caught cheating and perhaps fine the club, but let its performances stand - and trophies remain on the shelves. Or treat the team performance as contaminated, annul it and award the game to the opposition. Punishing the whole team like this for just one players' failings is no more unfair than awarding them points when they win a game because one player performed well while everyone else on the team was sub-par. This is what it means to compete in a team sport as a collective, in terms of opportunities as well as risks. When one player has unfairly pushed his ability, there are no innocent teammates in a sense which would make it unfair to punish them all. Players who weren't doping have taken part in a moral offence without ever doing anything wrong themselves. For non-doped players on a doped team, there is no innocence, only tragic entanglement.
Even more clearly, clubs who have not orchestrated doping are still rightly liable, as they could have been more than just 'innocent' bystanders while cheating went on within them. They could and should have taken proactive measures to prevent that from happening.
But what if they did? Well, losing in spite of one's best efforts is what sport is all about.
Because of that, clubs are appropriate targets for punishment when their players use PEDs. And there is already some precedent for such punishment in football's judicial system, as when Real Madrid were quite recently thrown out of the Copa del Rey for fielding an ineligible (suspended) player. When in this and our - of course entirely hypothetical - example the impact of the illegitimate performance and the institutional involvement are very similar, what reason is there not to draw analogous consequences?
But, what exactly are these analogous consequences? I will come back to figuring the right measure of punishment later, and first think about what it would mean for them to be effective.
Should the rules be set up to avoid any seemingly unfair punishment in single cases? Or should they be designed in such a way as to bring about the best, and fairest, outcome - even if some particular decisions might seem harsh or their wrath misdirected?
Even if I was wrong to claim that players who weren't doping, but benefited from others doing it, are punished fairly, the fact that only the more consequentialist approach can bring about any fair sporting competition at all makes collective sanctions morally inevitable. Providing incentives to all parties to prevent doping, by making them liable for any that goes on, means that fewer players and teams will cheat. My proposed regime urges them not to instigate, tolerate or orchestrate doping.
So, what is it? Whenever a player is caught doping, all games the team has played in within 3 weeks on either side of the date of the failed test will be counted as 3-0 defeats for the club. Depending on the timing of the test, such a penalty would have a significant impact on a club - in fact, it could wreck a season or even threaten the club's commercial existence.
To prevent that, clubs would have to take action to ensure their compliance. Powerful negative incentives, of course dependent on the creation of a credible doping control system, would leave them with no choice but to ensure that their players are not doped when they take to the pitch. Beyond conscious attempts not to entice doping themselves - say, by the expectations set on recovery times and athletic development -, this would also involve (repurposing) internal drug tests.
A specific proposal like the one I just made should be subject to some empirical physiological scrutiny. Does the length of the backward suspension and projected sphere of influence I suggested stand in any relation to the period of effectiveness of common forms of doping in football? While the answer to this question is important in finding the best provisions, I don't think there is a way to account perfectly for such considerations in a general code, as it would have to cover too many possible permutations. Feedback on this point is welcome, though.
Still, I need to deal with some challenges to my proposal. First, it would introduce the possibility of results changing after single games and ties are concluded, but while competitions are still going on. This is particularly relevant in cup formats, where pairings in subsequent rounds would change with previous results. Obviously, if the round after the one that was affected by doping hasn't been played yet, it could simply go ahead with the team suffering a doping-afflicted defeat stepping back in. But if there were multiple rounds played under the influence, and more than one team has suffered unfair defeats, replaying the competition as it should have been may not be feasible. In such cases, the chemically enhanced team has to be taken out of the competition without replacement. This would not be a perfect solution, as it would not restore a tournament unaffected by doping, (and may on occasion lead to empty brackets and history boards) but it would at least minimise its influence.
Yet, while my suggestion of collectively sanctioning teams may not be perfect, it is necessary. Without it, under the current regulations, the most likely form of doping in football - apparent regrettable individual misconduct - is effectively free for the clubs and players benefiting from it.
Unfair Cheatings, Fair Remedies
By Jan Gertken
There is a clear reason why doping in football sucks. Relying on doping means trying to secure an unfair advantage for oneself and one’s team. If this is the problem, then any solution to it must be judged on the same terms. At the very least, the cure must not be worse than the disease regarding matters of fairness. In the light of this requirement, collective punishment of a whole team – that is, of all of its members – for the doping sins of some players looks like a bad idea.
The fairest – or rather: the least unfair – solution to the fairness problem that doping raises consists in sanctioning the individual wrongdoer and in ensuring that no one gets punished who did not commit any wrong.
Let us first state the obvious: once the damage has been done, there is no way to achieve a fully fair solution that does more than approximate the state that would have obtained had there been no cheating attempt in the first place. To illustrate, assume that in the final game of a tournament, team A lost to team B, and assume further that a member of team B – call him Moto – later got convicted of using illegal substances to enhance his performance. If we refuse to punish the whole team B by disqualifying them ex post, B’s members profit unfairly from Moto’s action, and A’s members are unfairly disadvantaged. However, if we punish team B collectively and disqualify the whole team, many players of B get punished who have not done anything wrong. What is more, all players of A profit from the unfair treatment of those members of B who played by the rules in this case. As regards matters of fairness, collective punishment of B is therefore at least as bad as not punishing B collectively. (Of course, there is also a third option: disqualifying team B without handing the victory to team A. But this is clearly worse than both options discussed so far, since in this case, both innocent members of B and innocent members of A get to suffer as a result of Moto’s unfair actions.)
The fairest – or rather: the least unfair – solution to the fairness problem that doping raises consists in sanctioning the individual wrongdoer and in ensuring that no one gets punished who did not commit any wrong. This means a rejection of collective punishment. (If those players who used illegal substances were cajoled or enticed to do so by their teammates, or if their teammates knew of their use and did not intervene, then these are also clear cases of individual fault for which we need suitable norms and sanctions. Individual faults in connection with doping extend beyond the active use of illegal substances.)
In order for sanctions against individuals to be as effective as possible, and in order for them to involve at least some element of restitution, these sanctions should not only include financial fines or bans on players for a certain period of time. They should also include stripping those who got caught doping of all titles and trophies that they have won while using illegal substances. In the case of tournaments, this means loosing any claim to be a winner of the respective cup, no matter how many games one played while being illegally enhanced. For league systems, any use of illegal performance enhancing drugs during the season should result in an individual player’s loss of all titles and achievements acquired during the season, no matter how many games were affected by his or her use.
This proposal sanctions individual wrongdoers and at least does not make matters worse with regard to fairness. Since a team is not the same entity as the sum of its players, there is also no inconsistency in allowing a team to have won a cup and to disqualify some of its members. (Of course, if all players of a team used illegal substances, the whole team should be disqualified.) However, a nagging worry surely remains: what about providing the right incentives and ensuring that e.g. sport clubs do not encourage doping, but actively work against it? My favoured answer to this question is this: we should make it a club’s responsibility to do everything that can reasonably be demanded in order to ensure that its players do not use illegal substances. For one thing, this could be achieved by making internal tests and anti-doping programmes mandatory and by severely fining a club for any instance of negligence or intentional deception. Should these incentives turn out to be insufficient, one could also hold a club liable for its player’s wrongful actions and fine the club even in those cases where no one is at fault apart from the player who uses illegal substances. This is not necessarily a case of collective punishment. Fining a club, which is a corporate body, is not the same as punishing its players or members. However, we are surely entering a grey area here, and in many cases, sanctioning a club will have negative and possibly unfair trickle-down effects on individuals who did no wrong. It seems to me, however, that this is still preferable to any system of deliberate collective punishment, which tries to cure dandruff by decapitation.
Jan Gertken is a philosopher who loves football (but usually does not write about it).