Back on Track: The Principles of Corrective Justice for Performance Enhancing Malpractice in Sports

Performance enhancing malpractice is no longer a subject matter which is exclusively debated in the sports community. It is a social and political concern which is daily exposed in the media and relates to the morality of current and future generations. Likewise, it is no longer an area of law which is exclusive to sports and entertainment scholars; but rather it is an area of law which has to be opened for an interdisciplinary debate in order to bring about solutions so urgently needed in this new type of malpractice. There is no lack of criticism by legal scholars who point to the fallacies of the current arbitration process used for the performance enhancing offenses. No doubt, whether it is the standard of proof applied in the arbitration process or other shortcomings of WADA's Anti-Doping Code, there is clearly room for improvement. However, this article is not going to propose solutions for these shortcomings. It will rather switch focus from the prosecution of athletes to needs of athletes and debate the legal model which would provide corrective justice and rehabilitation for these types of wrongdoing. While our society deals (with varying success) with other types of offences by providing perpetrators with means of support and rehabilitation, there is very little systematic or support available to the athletes who are suspended for performance enhancing malpractice. It is also very unclear how the sports insurance industry deals with these types of offences when it comes to providing insurance coverage for suspended athletes. In order to open the debate and find some solutions to this issue, this article examines Professor Weiler's proposed medical malpractice model and applies it in the context of performance enhancing malpractice. The purpose of this exercise is to sketch out a basis for creating a model for corrective justice in performance enhancing malpractice. There is no doubt that this subject matter ignites opposing reactions and we also feel torn about this issue. On one hand, we feel morally reluctant to offer a help to those who compete unfairly. On the other hand, we recognize the fact that a doping control system is not error-proof, and that the suspended athletes need support and another chance. We would like to open the door for legal debate on this rather contentious issue.