Political and Legal

Anthropology Review

RESEARCH NOTE

Kathryn Henne
University of California – Irvine

WADA, the Promises of Law and the Landscapes

of Antidoping Regulation
The World Anti-Doping Agency (WADA) spearheads the international campaign
against doping in sport, working within and across nongovernmental and legal
spheres. This article examines WADA’s organizational structure as a hybrid entity
that operates between formal law and informal regulation. It analyzes the events that
led to WADA’s establishment, the rhetoric in which policy makers have lobbied for
more legalistic measures, and the unforeseen side effects of pursuing these aims. The
rhetoric deployed characterizes events in terms of a contextually specific framing of
time, space, and social orientation (kairos) designed to reach and shape a particular
audience. In this case, images of imminent danger pervade an antidoping rhetoric
that envisions criminal law as a necessary antidote. Ironically, the success of WADA’s
rhetorical reframing could well undermine its stated goals, demonstrating the double
bind created for hybrid NGOs that operate between formal and informal sectors in
global arenas. [Doping, sport, nongovernmental organizations (NGOs), international law,
kairos]

The issue of doping in sport has become a familiar news headline, especially in recent
years—as increasing numbers of elite athletes from sports such as cycling, baseball,
boxing, and track and field have been convicted or accused of using performance-
enhancing drugs. The media coverage of these scandals has depicted scenes of denial,
remorse, betrayal, reformation, and even conspiracy. The first melodrama of this
kind took place over 20 years ago, when 100-meter gold medalist runner and notable
Canadian, Ben Johnson, tested positive for the steroid, stanozolol. Prior to Johnson,
“past Olympians had been stripped of medals after positive drug tests, but never
in a case so celebrated” (MacAloon 1990:42). Today, these narratives are much
more normalized public events. Yet, despite the heightened attention these mediated
performances bring to the issue of doping in sport, much ambiguity remains regarding
the nature of athletes’ offenses, the sanctions that violations entail, and who actually
levies them.
Here, I reflect on discourses and processes that have contributed to the development of
regulations that target doping in sport, focusing in particular on modes of performance
beyond the most public displays. Drawing upon ethnographic research conducted
over the course of nearly two years,1 this article explains how policy makers have
produced a dominant narrative in which doping is highlighted as the paramount
concern facing sport, while the partnerships forged by the World Anti-Doping

PoLAR: Political and Legal Anthropology Review, Vol. 33, Number 2, pps. 306–325. ISSN
1081-6976, electronic ISSN 1555-2934.  C 2010 by the American Anthropological Association.
All rights reserved. DOI: 10.1111/j.1555-2934.2010.01116.x.
November 2010 Page 307

Agency (WADA) are described as a solution to this emergent crisis. To better under-
stand how policy makers depict this crisis, it analyzes the language used to push for
further legal intervention designed to assist the agency’s global fight against doping
in sport. It then takes a closer look at the unforeseen consequences antidoping reg-
ulation has elicited within legal spheres, including recent and emergent challenges
in courts. Taken together, these insights contribute to a complex view of NGOs and
their relationships with legality.
Broadly speaking, doping refers to athletes’ use of any performance-enhancing meth-
ods that are considered to be unethical or that undermine a level playing field in sport.
Regulations against doping also include any attempt by an athlete or administrator
to manipulate tests (or their results) for banned substances (Verroken 1996; WADA
2009). While a specialist panel of medical doctors determines and revises the actual
list of banned substances annually, this panel makes up only a small part of a broader
transnational regime. According to WADA, eliminating doping in sport is necessary
to preserve sport as a “celebration of the human spirit, body and mind” (United
States Anti-Doping Agency [USADA] 2008), and to accomplish this, the agency
has endeavored to standardize and harmonize antisdoping efforts across the globe.
The adoption of the UNESCO International Convention Against Doping in Sport is
one such success. This Convention holds participating governments accountable for
developing legislation consistent with rules found in WADA’s World Anti-doping
Code (the Code), the 136-page document that governs antidoping practices across
the globe. As legal scholars have pointed out, “WADA, as a nongovernmental orga-
nization, recognized that the Code it drafted may not be considered legally binding
by states,” and therefore, by lobbying for the Convention, it took steps toward “rec-
tifying this problem” (Ravjani 2009:267). Thus, “governments, while they cannot be
Signatories of the Code, have declared their support for the Code” by ratifying the
Convention (David 2008:5).
These partnerships open up a space to query the interactions among nongovernmen-
tal organizations (NGOs), governments, and international law. International NGOs
are often described as a mode of alternative dispute resolution designed to provide
oversight in an arena of human activity; they are therefore, in most cases, outside
the adjudicatory authority of the state (although, of course, the activities they reg-
ulate – such as sport – are also regulated by individual states). In fact, NGOs have
been referred to as “gap fillers,” because their work often seeks to provide remedy
when governments have failed to do so (Dicklitch 2001). Though many NGOs are
nonpartisan answers to the shortcomings of law, they can hardly be described as
apolitical organizations or as solutions that arise only in the absence of governments.
This article examines the embedded politics and rhetoric of WADA’s regulations as
well as its power, looking closely at how the agency works within and through—but
sometimes outside—the law. In particular, it highlights how the agency operates in
combination with legal and nonlegal mechanisms and how WADA’s representatives
leverage kairos to do so in pursuit of its regulatory mission.
The essence of kairos is the ability to strike a precise balance by considering contex-
tually specific conditions that span a range of temporal, spatial, cultural, and social
Page 308 PoLAR: Vol. 33, No. 2

orientations (see Miller 2002). As an analytical strategy, it takes advantage of such

conditions so that the message being conveyed can better resonate with an audience.
According to Hesford (2005), an element of persuasion is built into kairos, for this
contextually balanced calculation requires the spokesperson to anticipate, attend to,
and even influence the values and desires of the audience. Thus, as applied to NGOs
and agencies such as WADA, the rhetorical tactics associated with kairos move be-
yond merely identifying individual causes for concerns about doping; they strive
to induce an identificatory response in order to influence the contexts they seek to
address. These tactics shape the audience’s values, thereby shifting, and at times
creating, the conditions to which they appeal. Hence, a focus on kairos aids in think-
ing through how WADA and its rhetorical appropriations operate to coconstruct the
language and values of the antidoping movement as well as the opportunity structures
that have facilitated the growth of WADA’s regulatory regime. This article demon-
strates how NGOs such as WADA can function as hybrid organizations at the edges
of formal law, informal regulation, international networks, and the state—mobilizing
a rhetoric of imminent danger and a technology of criminal law to establish its
authority—but perhaps at the cost of some of its own stated core goals.

The Question of “Law” and Sport

While state authorities do oversee some aspects of sport, important facets of its
governance often fall under the jurisdiction of various sport-specific organizations,
the most recognizable and most powerful being the International Olympic Committee
(IOC). Given the “special characteristics and structures of sport,” practitioners in this
arena often rely on arbitration, not legal courts, to resolve sport-related complaints.
The Court of Arbitration for Sport (CAS), an institution established by an IOC
initiative2 with its seat in Lausanne, Switzerland, has become labeled as the “Supreme
Court of World Sport” with the explicit purpose of addressing the unique dynamics of
sport-related disputes (Revjani 2009:253). According to international sports lawyer
and scholar Ian Blackshaw, the distinct attributes of sport—and the conflicts that
result—are rooted in the “phenomenal growth in the value” of the industry alongside
increased media coverage and corporate sponsorship; he also points out ongoing
cultural shifts that have accompanied these economic developments, such as a concern
with possible “money and riches” and a prevailing “winning is now everything”
mentality (Blackshaw 2002:1–2). Because sport has become a healthy business, it
is not surprising that, as in other commercial spheres, arbitration has become the
preferred method of dispute resolution.
At the same time, despite these corporate contours, sport has also been recognized as
a distinctive field,3 especially in the ways it has operated within and alongside other
apparatuses of social control and nation-building (see Brownell 1995; Hargreaves
1987; Pfister and Reese 1995). Park (2005) identifies sport as “a central cultural tech-
nology of governing the social body” in which athletes, especially elite competitors,
have historically served as “signifer[s] of state power” that “help maintain the body
of the population to be healthy, efficient, and productive” and serve as “a means to
discipline the bodies of the population and construct a docile and healthy labor force”
November 2010 Page 309

(177). In part due to its power as a socializing practice, many governments have taken
a keen interest in preserving the integrity of sport, for it not only reflects societal
dynamics, but has the capacity to change them.
According to one antidoping advocate at the most recent World Conference on
Doping in Sport, sport can “be the source of inspiration for all,” and, therefore, it
carries with it the responsibility of “preserving and protecting its integrity.” Richard
Pound (2006), the former Chairman of WADA, has also expounded on this in relation
to the “wave of misconduct at the end of the twentieth century and the beginning of
the new millennium” (29). For Pound, the issue of doping in sport is linked to the
broader concern of moral degradation within popular culture and corporate practices.
He states, “Society is built on an ethical platform, as is sport,” arguing that both of
their “platforms should be sturdy” (2006:188). Under his leadership, the campaign
against doping in sport has become explicitly concerned with counteracting the “far
darker” moral issues underlying practices commonly “attributed to nothing more than
greed” (2006:29). As such, WADA, like other NGOs, exemplifies Harvey’s insights on
neoliberalism, having “stepped into the vacuum of social provision” not adequately
addressed by governmental authorities or, as discussed later, international sports
federations (IFs) (Harvey 2007:177). Ironically, as it does so the agency champions a
cause whose proliferation, at least according to Pound, is a symptom of neoliberalism
itself.
In order to account for the complexities inherent within this kind of global mission,
the antidoping regime relies upon a multitude of regulatory instruments that do not
fall neatly into distinctly different legal and nongovernmental spheres. Its methods
entail various enforcement and surveillance strategies beyond its most recognized
practice, the scientific testing of athletes’ urine and/or blood samples for banned
substances. These include, but are not limited to, the Whereabouts Program, which
requires athletes to notify authorities where they are one hour per day when they are
in or out of competition, and the Biological Passport, an electronic record of blood
and urine profiles kept to document abnormalities that may serve as indicators of
banned substance use. Because WADA depends upon evidence obtained via sample
collection and findings substantiated by scientific surveillance and analysis, some
have characterized it as a form of “technology-driven governance” (Park 2005).
Furthermore, an elaborate and technical set of guidelines outlined in the Code guides
and standardizes the implementation of these technologies.
This regulatory regime is not limited to technocratic apparatuses. WADA has estab-
lished joint campaigns with IFs, as well as partnerships with national governments,
police agencies, and international legal authorities. The first article of the UNESCO
Convention Against Doping in Sport reinforces this, recognizing that both govern-
mental and sport authorities “have complimentary responsibilities to prevent and
combat doping in sport.” As a result, even though the Code calls for standardized
practices, the sanctions levied for antidoping violations can vary in nature and sever-
ity depending upon jurisdiction and the actors involved. Many athletes caught doping
have endured the black marking or “asterisking” of their accomplishments, others
have had their medals and endorsements revoked alongside long and short-term
Page 310 PoLAR: Vol. 33, No. 2

suspensions from sport participation or competition, and some offenders have even
faced criminal sanctions. WADA’s sphere of influence, therefore, expands well be-
yond realms traditionally characterized as “nongovernmental” and serves as an ex-
treme instance of an agency “blend[ing] with other forms of social control already in
place and, to some extent, accepted as authoritative and legitimate” (Merry 1984:281).
Antidoping regulation is perhaps better characterized as alternative system of dis-
pute resolution. In fact, an examination of WADA’s organizational structure, which
incorporates stakeholders from both governmental and sport spheres, reaffirms its
quasi-legal nature. The agency is, to borrow Trubek and Trubek’s (2005) terminol-
ogy, a “hard/soft hybrid,” a body that conjoins and leverages the “synergies between
binding and non-binding mechanisms” (344).
To contextualize how this hybrid operates, this article discusses WADA’s origins
as well as its ongoing shifts in relation to legality. I draw primarily from research
conducted at the 2007 World Conference on Doping in Sport and on interviews
with antidoping authorities. Held every four years, the World Conference serves as a
formal venue where WADA stakeholders from sport and governmental spheres meet
to assess the current state of antidoping regulation. The specific agenda varies with
each quadrennial conference. The 2007 meeting was unique, because it served as the
conclusion to an 18-month consultation process that yielded over 1,800 changes to the
Code. With over 1,500 participants in attendance, the central goals of the conference
were to approve the final version of the Code and assess the impact of these changes
on future endeavors.
Analysis of the exchanges and interventions presented there highlights how stake-
holders evoke law as a necessary component within the future landscapes of the
antidoping movement. The force of law emerges as the means necessary to stop this
particular societal threat, and, as stated by one participant, to finally “remove the veil
of silence around doping that has led to its proliferation.” Advocates pitched more
legalistic tactics so as to enhance WADA’s regulatory performance, revealing its
ambition to implement strategies beyond traditional modes of testing and detection.
Participants’ appeals for legal action seemed to be the right response at precisely
the right time, at a moment when doping in sport has become a conspicuous is-
sue globally. This analysis draws attention to how kairos functioned in the rhetoric
at the conference, “anticipat[ing] the needs and values of imagined and intended
audiences” (Hesford 2005:48). However, these linguistic appropriations, although
effective in mobilizing support, drew attention away from the practical implications
and emergent consequences—or “side effects”—of new approaches that combined
higher levels of surveillance with more legal mechanisms.

Setting the Stage and the Role of Kairos

Hesford (2005), through her discussion of how video advocacy presents the issue of
global sex work, addresses kairos as a tool leveraged by NGOs. Specifically, she finds
that the narratives conveyed by documentaries and public service announcements
“move from identification to persuasion”; she argues that critically considering kairos
can reveal how these platforms are fashioned and can also uncover “the risks posed
November 2010 Page 311

by reproducing their identifications” (2005:48). We begin by examining how WADA

stakeholders at the conference reflected upon the agency’s establishment and purpose,
which reveals that accounting for and appealing to multiple political and public
interests is a core part of WADA’s mission.
While 2009 marked WADA’s 10-year anniversary, antidoping regulation predated the
agency’s inception. Sport historians and practitioners have provided accounts of the
antidoping movement, and while their renditions vary to some degree, they address
common themes and events considered to be defining moments within the regime’s
development (see Beamish and Richie 2006; Dimeo 2007).4 The IOC led antidoping
efforts by establishing a Medical Commission following the deaths of two cyclists
competing in two different races during the 1960s. Mostly made up of medical doctors,
the Commission’s primary duties were to investigate the consequences of doping and
provide recommendations regarding testing methods. At that time, France also passed
a law targeting doping in sport, and in 1963, the Council of Europe drafted the first
report on the topic, making it the first international collaboration against doping in
sport. Separately from their sport-specific efforts, many members of the original IOC
Medical Commission reported to the Council on the issues related to doping in their
respective countries.
Stimulants were the primary concern at the onset of international antidoping efforts,
but by the early 1970s, the Medical Commission shifted its focus to anabolic steroids
and introduced new tests that could detect their metabolites in athletes’ urine sam-
ples. These tests and the changing medical rules that followed their introduction
were not without controversy. Athletes and scientists alike challenged the tests’ re-
liability and the rules’ inconsistent enforcement; others called for stricter measures.
Despite criticisms, the IOC continued to increase the number of banned substances
as scientific developments enabled the Commission to test for more compounds and
ergogenic aids. Largely due to these protocols, the practice of testing athletes was
institutionalized well before WADA came onto the international scene. With these
procedures strongly established by the 1980s, one of the first public spectacles in-
volving the sanctioning of an Olympic hero for doping came about in 1988, when
Canadian Ben Johnson was stripped of his gold medal for steroids use. In light of the
“national tragedy” that ensued, the Canadian government commissioned the Dubin
Inquiry to investigate the use of performance-enhancing drugs across sports. In doing
so, according to MacAloon (1990), “the government claimed the moral high ground,
asserted its ownership of the problem, and usurped the powers and prerogatives of
the civic sports bodies” (50).
WADA stakeholders at the 2007 conference primarily pointed to the Festina Scandal
at the 1998 Tour de France as the beginning of major changes in the global climate
around doping and its regulation. The scandal initially centered on police raids of
cyclists’ hotel rooms and belongings and a subsequent sit-down strike staged by
riders in response to these actions – as well as on the arrest of a Festina team member
for possession of synthetic erythropoietin (EPO), growth hormones, testosterone,
and amphetamines. The race, later known as the “Tour de Shame,” did not resume
until after Tour officials negotiated with the police to end these impromptu searches.
Page 312 PoLAR: Vol. 33, No. 2

By that point, however, police had made the additional discovery of performance-
enhancing drugs in the lodgings of the Dutch team, TVM, and later others.5 The police
intervention not only exposed the severity of doping in cycling, but it brought to light
a bigger problem: Governing sport bodies were turning a blind eye to performance-
enhancing drugs. In fact, as “Festina team athletes and officials were being arrested”
and other governments—Spain, Switzerland, and Italy—took investigative actions,
then IOC-President Juan Antonio Samaranch “blurted out that, for him, this was not
doping and that the IOC’s list of prohibited substances and methods was too long”
(Pound 2006:92).
According to conference participants’ reflections, which typically omit embarrassing
details, the scandal prompted the first World Conference on Doping in Sport with
both sport and government representatives involved. As a result, in 1999, conference
attendees agreed to create a separate, independent administrative agency, thereby
preventing legal authorities from dictating how this war on drugs played out and
ensuring that governing sport bodies would remain active participants in the regulation
of doping. Hence, WADA’s founding came about, to use the words of one stakeholder,
because sport representatives at the behest of governments “finally realized more was
needed” to combat doping.

WADA’s Modes of Persuasion

Support for WADA comes from its partnerships across various sport and governmental
jurisdictions. Its alliance with the IOC is one of its more important connections.
Despite criticisms of the IOC under Samaranch’s leadership, the Olympic Movement
sponsored the establishment of WADA and continues to provide half of the agency’s
funding, by matching governmental contributions. This relationship is more than
financial. As pointed out by many participants working in antidoping regulation, the
IOC and WADA share a core belief that “fair play” in sport relies upon competition
between athletes whose natural capabilities have only been enhanced by hard work
and discipline, not by performance-enhancing drugs. By defining what substances are
not acceptable under this framework, WADA plays a specific role in the IOC’s own
institutional objectives, which is to promote Olympism, an ideology that encourages
“sport and culture. . . to create a way of life based on the joy of effort, the educational
value of good example and respect for universal fundamental ethical principles” (IOC
2004:9). In short, they share a common moral vision for sport and society.
Beyond these common ideological grounds, the IOC buttresses WADA’s claims to
authority. Recent changes to the Code provide a practical example of this: Seek-
ing to gain support among government stakeholders for the UNESCO Convention
following its adoption in 2005, WADA has added IOC-supported clauses to ensure
that more countries become signatories of the UNESCO Convention. These changes
introduce contingencies that, if not met, result in sanctions and the revocation of
sport-related privileges. As expressed in Article 22.6, “failure by a government to
ratify, accept, approve or accede to the UNESCO Convention by January 1, 2010,
or to comply with the UNESCO Convention thereafter may result in ineligibility to
bid for Events, which “may result in additional consequences,” such as “ineligibility
November 2010 Page 313

or non-admission of any candidature to hold any International Event in a country,

cancellation of International Events; symbolic consequences and other consequences
pursuant to the Olympic Charter” (WADA 2009:114). This clause—and the pact
it attempts to solidify—is a political attempt to gain legal backing and marks the
transnational partnerships among WADA, UNESCO, and the IOC. The IOC facili-
tates the delivery of consequences for governments’ noncompliance, because it deter-
mines which cities receive successful Olympic bids and invitations, thereby providing
WADA a unique form of nongovernmental bargaining power with public authorities.
In turn, the UNESCO Convention symbolically endorses and potentially expands the
agency’s influence in legally defined territories (e.g., nation-states, international legal
authorities) and nonlegally defined spheres (e.g., the Olympic Movement, IFs).
An examination of these relationships highlights the multiple practical and linguistic
ways that kairos operates in efforts to create and maintain cooperative partnerships.
Whereas the IOC provides economic and symbolic incentives, individual presenters at
the World Conference adopted another strategy. They conveyed a collective sense of
urgency around doping and the dangers its poses. Representatives from both WADA
and the IOC claimed that the issue was a divisive peril facing modern sport, its
participants, and the livelihoods of both. IOC President Jacques Rogge characterized
doping as,

one of the most serious threats the Olympic Movement has ever seen.
It undermines all we stand for. It endangers the health of the athlete. It
undermines the credibility of results. It risks drying out the recruitment
of sport, as, one day, parents might refuse to send their children to sports
clubs. [Speech, Madrid, November 15, 2007]

Anxieties over a future contaminated by doping abounded, and were, at times, sensa-
tionalized. For instance, according to Spain’s Minister of Sport and Science, Mercedes
Cabrera Calvo-Sotelo:

Any tolerant attitude toward this [doping] by the sports federations, by the
public authorities will lead to a very rapid spread of this threat beyond—
far beyond—high-level competitions, and this has already been said, it
can be turned into a very dangerous threat to public health, and it could
spread among international organized criminal organizations. It could
lead to the deterioration of our social living together, because it would
basically help those who do not enjoy fair play, people who do not
believe in fair play. And, in the end, this would lead to a situation in
which anything is possible. [Welcome Address, Madrid, November 15,
2007; italics added]

Although this description of the problems resulting from doping may seem unrealistic,
many stakeholders took similar liberties, describing the problem as one of systemic
moral decay. Overall, the rhetoric used by WADA representatives during conference
proceedings evoked a “culture of fear” (see Glassner 2000) around doping to justify
the importance of the agency’s mission.
Page 314 PoLAR: Vol. 33, No. 2

These extreme depictions continually surfaced during the conference, alongside calls
for new and improved tactics to combat doping. For instance, then-Chairman of
WADA, Richard Pound, reiterated doping as an epidemic:
Recent events tell us that doping is much more pervasive than some of
even the most cynical observers could have ever imagined. . . The risk
of this epidemic is not theoretical. It is a certainty for society at large,
and it results in an all too horrible human tragedy for some. There are
no short cuts. There are no magic bullets. There are none of the quick
fixes. . . It will take new and bold thinking. [Introductory Speech, Madrid,
November 15, 2007]
Building upon his statements, another presenter offered a high-stakes scenario in
which the antidoping movement was at a pivotal point, which was later reiterated
nearly verbatim by another stakeholder: “Either we win the fight, or we lose it. If
we lose it, the greater loser will be the sport movement in the world . . . because
doping does not only kill athletes, it kills sport” (Interview, Madrid, November
17, 2007). Such representations are, according to Park (2005), symptomatic of a
technology-driven governance, for this kind of “arms race mentality” requires con-
tinually innovating technologies of surveillance and testing in order to catch athletes
who presumably have access to newer, undetectable substances and methods. Ex-
amining kairos within this context, thus, highlights conference presenters’ efforts to
substantiate the crisis WADA counteracts and, in turn, re-establish the need for the
agency.
Additional governmental support, participants argued, was a key long-term strategy
that could shift these tenuous dynamics in WADA’s favor. Specifically, they high-
lighted legal authorities’ investigative and punitive powers. One example, the case
of Marion Jones, a former gold medalist in track and field who admitted to using
performance-enhancing drugs during investigations into the Bay Area Laboratory Co-
operative (BALCO) steroid ring, crystallized how law could supplement WADA’s
authority. According to many WADA representatives, Jones, like many other elite
athletes, struggled when tempted by fame and fortune. In her case, they claimed, she
was willing to do anything, including dope, to achieve these rewards. For antidoping
advocates, her criminal prosecution for perjury (specifically, for making false state-
ments to a federal agent about her steroid use) marked an unprecedented success that
illustrates the need to expand efforts beyond current testing practices:
Marion Jones is an example . . . of how an athlete can beat the system
of sample collection. 160 samples were taken from that athlete. Not
one resulted in an adverse finding. The evidence that was collected from
BALCO was sufficient to lead to charges of perjury being brought against
that athlete in federal court, and it was only during the plea-bargaining
during those charges that she admitted that she had been cheating for
seven years. So, it was only when faced with the inevitable prospect of
going to jail for a long time that the athlete conceded that she had cheated
and relinquished her results. [Conference Session, WADA Director Gen-
eral David Howman, Madrid, 15 November 2007]
November 2010 Page 315

The Marion Jones story, and others like it, served a specific purpose: to lobby for
further governmental involvement. It characterized legal enforcement and policing as
the next steps necessary to ensure that athletes would be condemned, not rewarded, for
cheating. Thus, the conference moved beyond identifying the severity of the doping
problem and worked to reinforce the need for stronger measures. To this end, WADA
representatives employed persuasion—and at times, scaremongering—to fight this
form of drug use.

The Promises of Law

With technocratic regulations refined and in place, WADA representatives ex-
pressed a common belief that legal apparatuses would enhance the performance
of the agency’s existing regime. As acknowledged by Australian Sports Anti-Doping
Agency [ASADA] Chairman, Richard Ings, merging traditional testing with the
“strong investigative and intelligence management capabilities” of law enforcement
agencies “is the future of protecting the integrity of sport” (Intervention, Madrid,
November 15, 2007). Spain’s Secretary of State for Sports, Jaime Lissavetzsky Diez’s
earlier statements highlight a similar sentiment:

Now looking at the past and the present, we should now also look at
the future . . . We want a World Anti-Doping Agency which is a strong
agency, an agency which is fully committed, an agency which takes
into account the needs and has as much scientific backing as possible,
as much legal backing as possible, in any of the decisions taking into
account the sportsmen—and the sportswomen. Prevention, control and
sanctions. [Introductory Remarks, Madrid, November, 15 2007]

In this view, law promises a bigger, stronger, and ultimately more powerful regulation.
Figuratively speaking, it offers the possibility of a WADA on steroids.
Conference participants also revisited WADA’s history to demonstrate how the
agency’s most touted accomplishments were its contributions to successful police
stings and raids of steroids trafficking rings. In recalling them, Director General
David Howman cited a list, beginning with the 1998 Festina raids at the Tour de
France and going on to include other examples from a variety of jurisdictions (with,
obviously, varying legal systems): the BALCO inquiry in the United States, Australian
customs’ “confiscation of prohibited substances from a team of swimmers that were
living in the country,” and Operation Gear Grinder, which was a “significant ad-
vance in the closing down of a number of [drug-producing] laboratories in Mexico”
(Conference Session, Madrid, November 15, 2007). Howman, who led many of the
formal sessions, also pointed to the recent Australian weightlifting inquiry that “led
to the first sanctions being made against athletes for the use of HGH [human growth
hormone],” and the Signature Pharmacy6 bust that “led to the naming of a number
of professional baseballers.” Subsequent speakers at the conference validated these
examples as testaments to the need for more intergovernmental partnerships, and
gave pledges of support to ensure many more such successes in the future.
Page 316 PoLAR: Vol. 33, No. 2

Additionally, WADA’s agenda outlined ways in which governments could “get tough”
on doping. According to Chair of WADA’s Athlete Commission, Viacheslav Fetisov,
under the UNESCO Convention, “governments are obligated to restrict the availabil-
ity, to prohibit the substances and methods in order to restrict their use in sport. This
includes measures against production, movements, importation, distribution, sale[s],
and trafficking” (Intervention, Madrid, November 15, 2007). Fetisov went on to ac-
knowledge, “Ministries of sport can’t do this alone. They have to ask for the help
of the police and customs . . . When all of these parties work together, considerable
progress can be made.” The kind of progress to which he directly spoke was clear as
he ended his point with the statement: “Further arrest and prosecution [is] expected
from increasing governments’ involvement in anti-doping.” Within this context, per-
suasion took on an additional dimension of, what Jonathan Simon (2007) has termed
“governing through crime.” Conference participants often evoked—unconsciously
as well as deliberately—“the technologies, discourse, and metaphors of crime and
criminal justice” to lobby for further legal intervention, a trend that Simon (2007)
convincingly argues has come to characterize many regulatory discourses, most evi-
dently those linked to crime control (4).
These linguistic appropriations were not limited to WADA’s direct appeals to law
enforcement. They were also apparent when participants described athletes who have
doped, or are presumed to have doped, as a suspect class:
Faced with a reality that athletes can and will engage in forms of doping
that are difficult or indeed impossible to detect through traditional testing,
anti-doping strategies that made us successful in the past may not translate
into success in the future . . . The challenge here is not hypothetical, nor
is it limited to any one nation or any one sport. BALCO has taught us
the lengths that athletes will go to dope, the relative ease which they can
do it, and the fame and fortune that can be reaped from such fraud. It is
a challenge that we ignore at the peril of clean sport. [Interview, Madrid,
November 15, 2007]
These claims highlighted just how seriously many stakeholders took Pound’s point,
noted above, that the problem of doping has been fueled by unethical capitalistic
pursuits. Greed, many argued, not only incentivized cheating for personal gain,
but it also gave rise to the market for banned substances. Speaking on behalf of
WADA, Howman stated, “We know now that some athletes are resorting to the use
of veterinarian substances. They are available. We all know how easy it is to obtain
banned substances through the Internet. It is so easy” (Conference Session, Madrid,
November 15, 2007). Cast in this way, law seemed the only way to harness this
uncontrolled market and shift advantages from illegal, amoral traffickers to legal,
moral authorities.
Other instances of governing through crime permeated this particular mode of persua-
sion. The desire for punishment also emerged when participants considered the need
for “proper” legal procedures, which overshadowed procedural justice concerns for
subjects under its jurisdiction. Tribunals and judicial proceedings were instead cast as
necessary in terms of efficiency with regard to regulatory oversight and monitoring.
November 2010 Page 317

For example, in his presentation on the future of antidoping regulation, Howman

went on to explain,
We cannot and should not rely on a simple system of sample collection
and analysis to find the cheats. We must use all the tools that might
be available to us to ensure that evidence is gathered in a proper and
an appropriate way, tended before a tribunal, again in a proper way, to
ensure that disciplinary proceedings can be conducted against those who
commit anti-doping violations. This leads into the issue of conducting
investigations and—and developing investigation protocols. [Conference
Session, Madrid, November 15, 2007]
On the one hand, these calls came in direct response to the prospect of costly, drawn-
out litigation and the growing number of appeals by athletes before CAS, which had
more than doubled between 2006 and 2007. On the other hand, they also spoke to
some of the embedded values instilled by the antidoping regime, particularly around
the issue of intent, which is not weighed when evaluating violations. Stakeholders did
not ask questions about whether or not athletes were innocent, but instead, presumed
that evidence obtained through scientific testing provided undeniable proof of guilt.
Participants also argued that law would bring with it new forms of scientific evidence.
They did not reject testing measures in favor of law, per say, but they did argue that
current methods were not up to emergent challenges. Again, Howman’s presentation
spoke directly to this point:
We must catch up with the rest of society and use forensic science. On
a daily basis, our criminal and civil courts, it is forensic science that is
used. Why don’t we do this for our anti-doping tribunals? We must, as
we move forward, use the benefits that we can get from those people
who have already put into place systems and information that will assist
our tribunals reach proper conclusions. [Conference Session, Madrid,
November 15, 2007]
Note that he called for tribunals to include different forms of evidence (those com-
monly accepted in legal courts and obtained by law enforcement agencies) but did not
argue for use of formal legal courts. A common sentiment within antidoping circles
is that legal courts are too slow and expensive. A hybrid—a tribunal that maintains
certain aspects of a court, often utilizing legally trained professionals—offered a
preferable alternative.
These perspectives reinforce the perception that adapting aspects of law would enable
WADA to meet emergent challenges head-on. Paradoxically, this discussion does not
stress a role for education, even though an earlier conference panel had pointed to
education as a cornerstone strategy against the proliferation of unethical values in
sport and society. Rather than expand upon the relationship between education and
stronger modes of enforcement, WADA representatives within this context deployed
the rhetoric of governing through crime to make a wider appeal. However, even
as they called for legalistic mechanisms, participants also sought to maintain the
regimes’ nonlegal characteristics. Despite demands to “get tough” on doping in the
Page 318 PoLAR: Vol. 33, No. 2

same way that legal entities have targeted illicit drug use, participants still asserted
WADA’s hybridity.

Side Effects of Law

Although WADA representatives’ reflections on the future of antidoping regulation
highlight the language and practices mobilized to lobby for more legal interventions,
it is clear that WADA has already laid an authoritative foundation by leveraging var-
ious partnerships in sport and governmental spheres. WADA representatives’ words,
however, only offer a snapshot of antidoping regulation. The actual practices and pos-
sibilities of law may end up playing out in varied and unpredictable ways. When we
review recent developments across current antidoping landscapes, we can already see
some unforeseen consequences emerging. Foremost among them are court challenges
from different legal jurisdictions to this regime. When we consider these repercus-
sions, we do not see the same harmonious picture depicted by WADA representatives;
rather, we find narratives that are more complex and potentially divergent.
The actual punishments endured by athletes were not discussed during conference
proceedings. While the WADA Code establishes standardized guidelines regarding
sanctions for violations, it does not and cannot dictate what happens within legal
courts across a broad variety of countries and legal systems. Marion Jones, for exam-
ple, in admitting to perjury before two grand juries during the BALCO investigations
in the United States, has actually been subject to two forms of punishment. For per-
jury, she received a six-month prison sentence followed by a two-year probationary
period and life as a disenfranchised felon. Her other punishment, the stripping of the
five Olympic medals she won during the 2000 Sydney Olympic Games, though lim-
ited to the realm of sport, would have resulted in the loss of stature and income even
without the additional criminal prosecution. Although this is rendered as a success
story, Jones, now without voting rights and carrying the combined stigmas of a fallen
athlete and an ex-convict, remains in financial debt.7 Regardless of whether or not
these outcomes are her just deserts, another part of the story is worth mentioning:
Victor Conte, the founder and former president of BALCO, the force behind the ring,
served only four months in prison and another four on house arrest in exchange for his
guilty plea and a list of the athletes he supplied with performance-enhancing drugs
(27 in total). Since his release, Conte, claiming to have reformed, has started a new
sport supplement company. This seems a stark contrast to stakeholders’ claims that
law would ensure harsh punishments for suppliers and remove them from markets.
This example points to the Code’s inability to alter the practices of law or to pre-
vent potentially disproportionate legal punishments across all of the diverse places it
attempts to regulate.
Amos and Fridman (2009) also explain that certain antidoping doctrines, such as
WADA’s strict liability standard, may face legal challenges, at least in the short term.
The strict liability standard is used to evaluate evidence in cases concerning anti-
doping violations. It requires only a “‘comfortable satisfaction’ with circumstantial
and technical evidence” and holds athletes liable for doping violations, even if their
positive tests are unintentional in nature (Tamburrini 2006:200). To date, CAS has
November 2010 Page 319

endorsed this standard. However, a recent ruling by the U.S. Court of Appeals for
the Eighth Circuit, upholding a 2009 District Court decision,8 rejected the rationale
behind the standard. The case involved two athletes who tested positive for a diuretic
banned by the National Football League (NFL) Policy on Anabolic Steroids and
Related Substances. This is one of the first legal rejections of the WADA standard. In
this case, the athletes tested positive for bumetanide, a substance found in the common
weight loss supplement, StarCaps, that can also mask steroids use. Responding to the
fact that arbitration offered no remedy, the athletes eventually filed a legal complaint,
breaking from the terms of the Collective Bargaining Agreement (CBA); the Court
concurred that the policy violated the Minnesota Drug and Alcohol Testing in the
Workplace Act (DATWA). This ruling is important in two ways: First, it considers
athletes’ intent, acknowledging that the NFL failed to inform players that StarCaps
contained bumetanide and that the accused unknowingly ingested the substance; and
second, it rejects every attempt by the NFL to evade state laws in order to uphold the
terms of the CBA and its internal policies.
Such conflicts may only scratch the surface of the extent to which WADA’s ex-
panded practices may be incompatible with certain legal principles, especially when
looking across legal jurisdictions. Practicing lawyers and academics alike recognize
that future disputes will likely confront long-standing concerns regarding athletes’
rights in relation to methods of sample collection and testing (Amos and Fridman
2009; Schneider 2004). For example, there are legal challenges taking issue with the
WADA’s methods of surveillance, namely its Whereabouts Program. A complaint
filed in Belgian courts alleges that the system violates Article Eight (addressing pri-
vacy) of the European Convention on Human Rights (see BBC Sport 2009). Apart
from this, one interviewee speculated about another possible ramification of this on-
going case, which focuses on the question of whether or not CAS can provide athletes
a fair trial. If the courts find that CAS cannot do so, and that accused athletes deserve
legal procedures and protections, the so-called Supreme Court of World Sport could
be dismantled. This could happen even though the Swiss Federal Court has previously
held that CAS is an independent and “true arbitration court” in response to an earlier
appeal that contended it was too closely aligned with the IOC and potentially biased
(David 2008:19; Ravjani 2009:274).
Looking beyond the courts, Beamish and Richie (2006) have pointed out that WADA’s
preoccupation with testing and surveillance actually encourages the use of potentially
hazardous designer steroids available in black markets, because these substances offer
a means to avoid detection. Anabolic androgenic steroids, therefore, become more
desirable, because they are water based and more quickly absorbed and discharged
after injection. However, water-based steroids are also more toxic than oil-based
formulas, especially with regard to their impact on kidney and liver health. This
reveals an unfortunate irony: In attempting to eliminate doping, WADA’s guidelines
provide incentives to use more dangerous drugs, thereby fueling the growth of an
underground economy. Thus, WADA is now perpetuating the very crisis it seeks to
attack. If this “tough on doping” approach already yields problematic side effects in
some jurisdictions, how might they affect the future landscapes of sport? If law in
some areas delivers on the promise of more punishments, do more athletes run the
Page 320 PoLAR: Vol. 33, No. 2

risk of becoming statistics within a broader war on drugs? What if other jurisdictions
find that the current regime does not provide enough protections for the athletes
suspected to have doped?
Furthermore, under this private regime, athletes are required to consent to non-
negotiable terms such as submitting to arbitration. For many, this is that tradeoff for
choosing to participate in sport. However, looking at the regime’s hybrid character
and how it has fashioned its agreements with incentives and binding repercussions,
it seems logical to ask whether or not and to what extent athletes’ consent is active
or coerced. The incentives of sport may not only misfire in enticing athletes to dope,
but they may also compel athletes to comply with fundamentally unfair aspects of
the regime. Thus, we can see in this example a possible “disjuncture between [law’s]
promises and people’s lived realities” (Hajjar 2004:3). The promises of interna-
tional law are utopian, asserting an ideal from which experience inevitably deviates.
Increased legal interventions within this regime may create a growing internal contra-
diction: Although advocates argue that increased governmental involvement will lead
to a stronger, more efficient antidoping system, these and other more intrusive tactics
may negatively impact the health and well-being of the global sports community they
seek to protect. At the same time, the checks and balances of law could also erode
the regime currently in place.

Conclusion
WADA, though at times characterized as an NGO, offers a unique example of a hy-
brid entity leveraging law-like powers because of its networks across both sport and
governmental spheres. This hybrid identity demonstrates just how blurred the dis-
tinctions between law and the nongovernmental are: Though nominally independent,
WADA explicitly draws upon various government stakeholders who, in fact, played
a very important role in its establishment. Practically speaking, the agency’s status
as an independent, administrative entity has enabled it to develop a transnational
jurisdiction and to create a technocratic regime; this regime deals with the problem
of doping with procedures that do not require the same forms of accountability to
which legal and state-sanctioned entities are often subject—at least not yet. This
liminal positioning has afforded WADA the opportunity to lay the groundwork for
the UNESCO Convention by raising awareness regarding the issue of doping and
refining mechanisms to police athletes.
But, even given WADA’s unique character, it still maintains some of the mundane
features associated with NGOs. Like other fields of regulatory action, such as the
environment, human rights, poverty, and democratization, the antidoping movement
emerges in a context where more traditional sources of law have been unable or
unwilling to act, especially at the international level. Though NGOs do work in this
“gap filler” capacity, they, in pointing to governments’ shortcomings and raising
awareness of these problems, often petition for legal action to remedy the causes they
champion. Many newsworthy issues, including human trafficking, global warming,
and female genital cutting (to name only a few), have been addressed by law largely
because of NGOs’ work and the public attention they have helped to mobilize.
November 2010 Page 321

Although WADA seems to focus on a very different cause and has only selectively
appealed for legal involvement, the antidoping movement now feels increasingly
compelled to pursue more legalistic strategies—a shift from its original position.
The realities of law when extended within this field may create ironic, unpredictable
outcomes, a very different reality than was anticipated by WADA stakeholders. Legal
rulings are beginning to curtail some of the agency’s achievements, while other
rulings have actually resulted in disproportionate punishments.
This case study, therefore, draws attention to two key considerations for anthropol-
ogists working in supposedly “nongovernmental” fields to ponder: first, whether or
not, how, and to what extent presumed distinctions between “nongovernmental” and
“legal” shape—and even mislead—our study of NGOs and secondly, the many ways
analysis of kairos can generate insights into NGOs’ agendas and the social worlds
they occupy. For many onlookers, WADA is merely an independent agency charged
with developing and carrying out antidoping rules. Upon further review, its hybrid
workings are much more complex. While many participants see themselves as agents
of social change pursuing reforms that they believe will improve sport and social liv-
ing, their appeals to crime-control discourses often overshadow their good intentions.
These contradictions become evident when we examine the political and pluralistic
landscapes of public rhetoric, policy, and regulation that they—and we—must navi-
gate. It is through these interrogations that we can better grasp the interconnections
between the performative and the functional aspects of NGOs’ work in relation to
law.

Notes
This article is based on research supported by the International Olympic Committee;
the National Science Foundation Law and Social Science Program; and the Depart-
ment of Criminology, Law and Society at the University of California, Irvine. I have
benefited from thoughtful feedback from anonymous reviewers, and I would like to
thank Elizabeth Mertz for her comments and helpful suggestions for revision.

1. My research investigated the development and transnational deployment of in-

ternational antidoping regulations in sport, specifically looking at how policy
makers have created and refined these rules at the international level and how
individual jurisdictions seek to comply with and enforce them. In addition to par-
ticipant observation and interviewing participants and stakeholders at the World
Conference on Doping in Sport, I observed California State Athletic Commis-
sion meetings from August 2007 to August 2008 during which it retailored its
antidoping program to include international guidelines. I also observed disci-
plinary hearings involving athletes found in violation of antidoping regulations.
In the summer of 2008, I undertook a preliminary research trip to New Zealand
to meet with members of the ministerial task force who, in 2001, had recom-
mended the establishment of the first national tribunal to resolve sport disputes
(including antidoping violations), now known as the Sports Tribunal of New
Zealand. Upon returning to New Zealand from March 2010 through July 2010,
Page 322 PoLAR: Vol. 33, No. 2

I conducted participant observation at the main offices of the crown entities

charged with overseeing sport and recreation in New Zealand and interviewed
sport administrators, athletes, members of the Sports Tribunal, and other legal
representatives. Prior to my stay in New Zealand, I had interviewed sport admin-
istrators in Australia and international officials based in Europe working with
and for UNESCO. I also conducted archival research at the Olympic Studies
Centre in Lausanne, Switzerland during the summer of 2009 in order to better
understand the historical origins of these regulations and drug testing practices
at the international level. Transcript excerpts quoted in this article were obtained
from personal audio recordings of the World Conference on Doping in Sport
proceedings held in Madrid from November 15, 2007 to November 17, 2007.
Because the most of the conference proceedings were accessible via WADA’s
website and selected presentations are available publicly, identifiers are used
when quoting public figures who spoke during the first day of the conference.
2. For a more in-depth discussion of CAS, its establishment, development and
functions, see Blackshaw, Skiekmann and Soek (2006) as well as Ravjani (2009).
3. Here, I refer to Bourdieu’s (1993) conceptualization of a cultural field, which
as a social arena, maintains distinct contours as a social world onto itself but is
also an outgrowth of social forces and is characterized by actors’ struggle for
resources and distinction (29–73).
4. A comprehensive discussion of this history is beyond the scope of this article;
for more in-depth discussions, please refer to Dimeo (2007) and Beamish and
Richie (2006). Todd and Todd (2001) have also compiled a timeline of key
events in the history of drug testing in international Olympic sport.
5. Beamish and Ritchie (2006) provide a detailed description of the events leading
up to and following the scandal.
6. The full impact of naming these players had not yet been realized at the time
of the conference. The Signature Pharmacy scandal and BALCO investigation
fueled allegations about steroid and HGH use by professional players. This later
became the subject of the Mitchell Commission Report, which was the impetus
for congressional hearings on doping in professional baseball.
7. Jones has recently attempted to resurrect her athletic career as a professional
basketball player in the Women’s National Basketball Association (WNBA).
William C. Rhoden has reported on her return to sport, and on the production
of a documentary film regarding her experiences directed by John Singleton, in
a New York Times article published on November 30, 2009. It is available at:
http://www.nytimes.com/2009/12/01/sports/01rhoden.html?_r=1&emc=eta1.
8. For these case histories, refer to NFL Players Association v. NFL, 582 F.3d 863,
U.S. Dist. LEXIS 43576 (2009), and Williams v. NFL, U.S. App. LEXIS 20251
(2009).

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