Doping Penalties

Let's assume one, or maybe a few, players in a team use doping independently and with no involvement at all from their club. Should the team and organisation be punished in such a case?

Unfair cheatings, fair remedies

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.

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.

thiago

Bayerns Thiago hat nicht nur einen Dopingtest verpasst, sondern wurde auch mit Behandlungen mit Wachstumshormonen in Verbindung gebracht.

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.

There is no alternative

How can strictly individual doping in a team sport like football be judged and sanctioned fairly and effectively? Can we limit ourselves to suspending offenders and stripping players of titles? No - we will see that there is no alternative to punishing teams as well as suspending players.

To make this point, I will first have to explain why clubs are the appropriate target for sanctions in such cases. Football is a team sport with no discernible individual contributions. 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), in any case it is impossible to tease out anyone's share in the result in any measurable way.

That means that we can not simply subtract a chemically enhanced performance, even quite apart from the confidence we may or may not have in everyone else's cleanness. So, we are left with two choices: only suspend the individual player caught cheating and perhaps fine the club, but letting its performances stand. Or treat the team performance as contaminated, annul it and award the game to the opposition. Punishing the whole team for one players failings is no more unfair than giving them points because they won a game as one player performed well while the everyone else on the team was sub-par. These just are the opportunities and perils of a collective endeavour. This also means that there are no innocent teammates in the sense Jan describes, which would make it unfair to punish them. For non-doped players on a doped team, there is only tragic entanglement.

This is even more so as even in cases in which the club has had no hand in doping being used, it still could have been more than an innocent bystander as such cheating went on in amongst itself. They would have had the option of adopting proactive measures to prevent it. We will see later why this is relevant.

Our arguments so far should show that clubs are appropriate targets for punishment when their players use PEDs. And in fact there is already some kind of precedent for such punishment, in clubs like Real Madrid being thrown out of a competition (the Copa del Rey) for fielding an ineligible (suspended) player. Both the impact of the illegitimate performance and the institutional involvement in both cases are similar enough to warrant the analogy.

Having come so far, we still have to figure out penalties that are proportionate and produce the right effects in practice. We will come back to the proportionality requirement later, and first think about what the desiderata for effectiveness should be.

Juventus 96

Die Juventus Mannschaft von 1996 mit dem 'Berlusconi-Pokal'. Gegen sie gibt es sowohl Vorwürfe vereinzelten als auch systematischen Dopings.

What do we want to achieve with our anti-doping regulation? Are we trying to formulate rules that achieve maximal fairness in every single case? Or are we concerned with designing the rules in such a way as to bring about the best state of affairs - in our case, minimising the amount of doping going on - even if that would bring with it some less than perfectly just particular decisions.

In a fit of slightly odd rule consequentialism, I am inclined to accept occasionally unjust statutes if they make it more likely that fewer players and teams will cheat. With regard to doping, this means creating incentives for all not to instigate, tolerate or orchestrate doping. The rule that I want to suggest is meant to do that.

So, what is it? Whenever a player is caught doping, all games he 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 and the identity of the player, 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.

Such a harsh sanction for the collective may seem excessive for an individual transgression. But as I have mentioned already, clubs are not resigned to a role as naive bystanders as cheating like this occurs. Rather, they can take action to prevent it, but will likely need strong reasons to do so. Powerful negative incentives, together with the creation of a credible doping control system, would generate such reasons and force clubs to ensure that their players are not doped when stepping on the field. This would involve first not to incentivise doping themselves, but likely also (repurposing) internal drug tests.

Still, this proposal entails the need to deal with some challenges. First, it would introduce or expand the possibility of results changing after the fact, but while competitions are still going on. This is particularly relevant in cup formats, where pairings in subsequent rounds may change by altering 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, but it would at least minimise its influence.

A specific proposal like the one I have made will be subject to some empirical scrutiny. Questions to be raised from this perspective could include asking whether the length of the backward suspension I suggested stands in any relation to the period likely affected by doping usage. I don't think there is a way to account for such considerations in a general code, as it would have to cover to many possible permutations. Feedback on this point is welcome, though.

Choosing the date of the test as the anchor-point of the penalty is necessary to solve the delineation problem that doping presents. In contrast to other offenses (like playing a suspended player), doping doesn't necessarily occur in-game. Hence, we need to tie out-of-competition doping to meaningful fixtures to make the penalty effective. The suggestion here is probably not perfect, but a close-enough approximation. For positive results in the summer off-season, longer or moved suspensions may be considered.

The suggestion I have made here may not be perfect, but it is necessary. Under the current regulations, the most likely form of doping in football - apparent regrettable individual misconduct - is effectively free for the clubs benefiting from it, as post-hoc individual suspensions are even less of a deterrent here than they are in individual sports.

Images: Juventus, public domain

Thiago CC-by-SA 3.0 Rufus46

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