WADA Time to Stay the Course: Maintaining the Collectively Bargained Anti-Doping Policies in American Sports Leagues

If you were to ask any person that regularly watches sports if doping or performance enhancing drugs (“PEDs”) are prevalent in any of the major American sports leagues, the answer would likely be a resounding “yes.” From Barry Bonds to Lance Armstrong, the specter of doping has hung over American sports through the past few decades and there has been a consistent pressure to ramp up efforts to catch offenders. Yet, while the major American sports leagues (such as Major League Baseball, the National Basketball Association, and the National Football League) have updated their drug policies, they have not signed onto the World Anti-Doping Agency’s Anti-Doping Code. To outside observers, the question arises: if American sports leagues are truly serious about catching athletes who use performance enhancing drugs, then why would they not sign onto the world’s largest anti-doping agency?

The World Anti-Doping Agency (WADA) was established in 1999 by the International Olympic Committee in order to address the doping scandal that occurred at the 1998 Tour de France. The Agency’s Code is designed to be extremely strict and punitive in order to properly deter athletes from doping and affecting the fairness of competitions. Their strict code has drawn the ire of many athletes and implicated privacy concerns, but remains in place, governing the Olympics, international sporting competitions, and even the Ultimate Fighting Competition through the US Anti-Doping Agency.

The MLB, NBA, and NFL, despite past pressure from Congress and WADA officials, have continued to monitor their own athletes and collectively bargain with their players’ unions to develop drug testing policies that are both effective and less invasive. Collective bargaining has been seen as a weakness among proponents of the WADA Code; the argument is that collective bargaining fails to address the incentives for players to negotiate “toothless” drug policies and incentives for leagues to ensure that their star players are not implicated in any scandals. However, these concerns are generally overblown, which will be explained further below.

This Note argues that while American sports leagues do have some work to do in order to properly combat doping, the WADA Code is far too draconian and overly punitive to be implemented in American sports. As they stand, the American sports league policies are sufficient and should not become any harsher than they currently are. Part I examines the current anti-doping policies of the MLB, NBA, and NFL as well as the WADA Code. Part II argues that because of the drawbacks of the WADA Code, the American major sports leagues would be ill-advised to adopt WADA’s Code to govern themselves both because the difference in effectiveness is not significant enough to impose the WADA restrictions on American athletes and because doping is not significant enough of a problem to justify it. Part III suggests that striking a balance between current American sports league policies and the WADA code through the establishment of an independent agency that liaisons with each sports’ players’ union, would serve to both address some of the issues levied at the MLB, NBA, and NFL while avoiding the overly punitive and invasive aspects of the WADA Code. This Note will also assert that enlisting sponsors in the fight against doping would potentially prove to be more effective than the current regime.