I received a reply to my latest post TIME FOR TRUTH & RECONCILIATION from a fellow traveler, John Dehart, who suggested that criminal penalties and prison time should be instituted for doping violations in light of the recent fall from grace of Lance Armstrong, the now former seven-time Tour de France cycling champion.

“The present system is a joke,” wrote DeHart, “and a real insult to the hard working clean athletes.”

You are correct, John.  It is an insult, but also a fraud, an intentional deception made for personal gain.  The topic is both interesting and redolent given the amount of money involved in many of the sports where drugs are an on-going issue.

In the case of Armstrong, Tour de France director Christian Prudhomme wants the $3.85 million returned that the Tour paid to Armstrong for his seven wins.   What’s more, insurance company SCA Promotions said it, too, will seek to reclaim $7.5 million it paid to Armstrong after a 2006 arbitration proceeding went against them stemming from its initial refusal to pay Armstrong a U.S. Postal Service team bonus after his sixth Tour win. At the time, SCA was skeptical of Armstrong’s performance, but proof of his doping was not as clear, concise and overwhelming as the current USADA report revealed.

Since performance enhancing drugs became a serious issue in the 1960s, it is beyond obvious that sporting sanctions and public humiliation alone have not been successful in dissuading athletes or their representatives from cheating.  What we are talking about here is making cost-benefit analyses, and for decades the users have weighed the penalties against the rewards for not getting caught, and decided overwhelmingly, “Yep, it’s worth it”.  Even today, we see athletes hit with two-year sanctions which, taken early or late enough in a career,  or in the middle of an Olympic cycle, allows for a minor down time for additional training before their return to competition as if no-harm, no-foul.

On the other hand, if criminal penalties were instituted, we might find real fear entering the hearts of men (meaning women, too) before drugs followed therein.  In fact, you have to wonder why in the world of professional sport that fraud hasn’t been part of the equation before.  I can understand a two or four-year ban in a purely amateur setting where trophies and reputations are all that are at stake. But when real money enters the game, and someone creates an unfair advantage by taking performance enhancing drugs, it quite simply becomes a form of theft by one competitor from another, and the proper penalties should attend.

Not that there aren’t criminal penalties in place for steroids already.  The Anabolic Steroids Control Act of 1990 defines steroids as a Schedule III drug, and imposes federal penalties for both their illicit possession and sale of up to five years in prison; and/or a fine of $5,000.  Most states mirror the Federal scheduling of steroids, and thus state penalties usually reflect the penalties for drugs of this classification.

As we’ve witnessed in the Armstrong case, doping is much more sophisticated these days than the use of steroids, and will become even more so with the introduction of genetic modification.  Yet nothing is mentioned about how to deal with the ill-gotten gains from the use of banned substances.  We saw the same thing with the economic meltdown in 2008.

The CEO of Countrywide Financial, Angelo Mozilo, reached a settlement with Securities and Exchange Commission over securities fraud and insider trading charges. He agreed to pay $67.5 million in fines and accept a lifetime ban from serving as an officer or director of any public company. But there was no jail time. While his fine represented the largest settlement by an individual or executive connected to the 2008 housing collapse, Mr. Mozilo’s compensation during the housing bubble reached nearly $470 million.  So was it worth it?

In April 2006 The Athlete Committee of the World Anti-Doping Agency (WADA) offered recommendations for ways to strengthen the fight against doping in sport. Among their conclusions:

• Suggest there be consideration of financial penalties for those who offend against anti-doping rules, including penalties on those responsible for teams, federations, or organizations in which doping cheats participate.
• Ask the Court of Arbitration for Sport (CAS) to increase its powers to allow clean athletes to claim damages or lost prize money from doped competitors who cheat them to be a further deterrent to doping in sport.

Beyond the current suspensions, however, there has been no recommendation for criminal sanctions. We have before us what they call a watershed moment, when fame has turned to infamy, and the world’s spotlight is shining straight and true at a specific athlete whose contradictory image was built, in part, atop a long-held deception.  How to use this moment most effectively?  If the goal is to outlaw PED use, then how not to make such users outlaws themselves?

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