Faster, Higher, Stronger, Upgraded: A Conceptual Basis for the Future Regulation of Elite Sport

By Goldsworthy, Daniel | University of Queensland Law Journal, June 2019 | Go to article overview

Faster, Higher, Stronger, Upgraded: A Conceptual Basis for the Future Regulation of Elite Sport


Goldsworthy, Daniel, University of Queensland Law Journal


I INTRODUCTION

Humanity now possesses the technological capacity for radical human enhancement. (1) This represents a fundamental challenge for the regulation of elite sport, which until now has focused primarily on performance enhancement. (2) While performance enhancement and human enhancement are not, in and of themselves, mutually exclusive, the enhanced human athlete represents a fundamental challenge to the current regulatory paradigm. The inevitable emergence of technologically enabled and enhanced athletes requires that the following questions be addressed: (1) What is the fundamental social interest in elite sport that supports and justifies regulation as regulatory bodies such as the World Anti-Doping Agency ('WADA') face the prospect not only of performance enhancement, but of human enhancement as well? (3) (2) What is the personal identity and status of athletes who substantially enhance themselves physically or cognitively?

Part I of this article considers WADA's current anti-doping regulations, analysing the conceptual rationale that enables the Agency to restrict athletes' rights, rather than analysing WADA's effectiveness as a regulatory body, which has recently been considered. (4) It is argued that this conceptual rationale has not been satisfactorily articulated by WADA, as required under fundamental human rights doctrines. Part II of the article considers the future regulation of elite sport, and demonstrates that the capacity for human enhancement raises critical questions about the personal identity and ontological permanence of enhanced athletes, suggesting these considerations to be necessary and pragmatic issues for regulation in sport. Thereafter, Part III proposes a rationale for the effective regulation of elite sport and the enhanced athlete. It is argued that the public interest in elite sport is the pursuit of human excellence, grounded in the concept of spectatorship that facilitates the passive pursuit of such excellence. In an age where developments in artificial intelligence, biotechnology and nanotechnology pose inescapable challenges for humanity generally--and for the future regulation of elite sport specifically--a proposed two-limbed test can ground and guide effective regulation of elite sport into the future.

II THE CURRENT REGULATION OF ELITE SPORT

The global regulation of performance enhancement in elite sport is administered by WADA. A full and detailed exposition of WADA's history is beyond the scope of this article and has been explored in detail elsewhere. (5) Notwithstanding, it is important to note that WADA derives its legitimacy and authority from an international treaty, the International Convention Against Doping in Sport. (6) The Convention has been ratified by almost 200 nations, making it the second most ratified of all the United Nations Educational, Scientific and Cultural Organization ('UNESCO') treaties, and arguably one of the most successful examples of international cooperation. The Convention seeks to formalise anti-doping rules, policies and guidelines and, like most international instruments, permits a degree of flexibility regarding how state parties to the Convention give effect to its obligations. Typically, this occurs by way of legislation, regulation, policies or administrative practices that result in complex and interdependent regulatory structures at the international, regional, national and subnational levels. (7) Consequently, throughout this article, reference to anti-doping regulation is a denotation to those rules enumerated in the WADA Code, as opposed to regulatory steps taken by nation states to give effect to the Convention's obligations.

Historically, the two major justifications for banning the use of performance-enhancing drugs have been the protection of athletes and their health, and securing fair competition by 'levelling the playing field'. (8) Hemphill provides an incisive summary of the positions typically claimed as justification for anti-doping regulation, noting that the most frequent arguments made in support of anti-doping tend to be reducible to appeals to naturalness, fairness, health and the spirit of sport. …

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