Anthony Bosch, the founder of Biogenesis – a clinic made (in)famous by its connection to Alex Rodriguez and other Major League baseball players – has been sentenced to four years in prison. In explaining the reason for the lengthy sentence, Judge Darrin Gayles said that Bosch’s administration of illegal performance enhancing drugs to high schoolers was especially disturbing to him.
Bosch’s transgressions, as well as the pathetic mess that is his most famous client – Alex Rodriguez – make it it easy to forget that the legal regime governing performance enhancing drugs is fundamentally flawed. The most deadly ingestible substance of all – in terms of historic death toll – is tobacco. By a very wide margin. Cigarettes are, of course, legal. So is alcohol, despite its undeniably destructive properties. The problem isn’t that those drugs are legal. The problem is that the legal prohibition against many other kinds of drugs is counterproductive and driven by politics more than defensible medical justification or sane social policy.
In 1990, Congress amended the Controlled Substances Act to, among other things, include anabolic steroids as Schedule III drugs. This meant that while some types of steroids were deemed to have acceptable medical uses, they also had addictive properties requiring stringent regulation and criminal penalties for misuse (which, in general, were strengthened by the 1990 legislation).
Notably, the FDA, NIDA (the National Institute on Drug Abuse), the DEA and the AMA all testified before Congress against classifying steroids as a controlled substance, arguing that there was little to no medical evidence that they had addictive properties (there is ample evidence that they have other harmful heath effects, of course. But to repeat, much more widely destructive substances are not criminalized).
One of the staunchest advocates in Congress for stiffening regulation and criminalization of steroids has been long-time Senator Orrin Hatch, Republican from Utah. Hatch has been in the news recently, though, for another drug-regulation related reason. In recent weeks, New York State Attorney General Eric Schneiderman announced that he would be prosecuting major distributors of health supplements, including GNC and Wal-Mart. This announcement followed an investigation by Schneiderman’s office which found that a wide range of popular dietary supplements were falsely labeled. That is, many purported to include allegedly healthy substances that, in fact, were not present in the supplements. Additionally, many of these same supplements included unacknowledged substances as filler.
The dietary supplement industry represents a gaping hole in American drug enforcement. A law passed 20 years ago purports to ensure the quality of such supplements, but they are largely exempt from serious scrutiny. And what member of Congress is most often associated with the notably friendly legal environment within which the industry thrives? Why, it’s Senator Hatch, who has been described as a “pit bull” in defense of dietary supplements. It happens that Utah is home to a number of firms that are leading producers of such supplements. In addition, Hatch’s circle of family and friends includes a number who benefit financially from supplements.
When then-commissioner Fay Vincent first “banned” steroids in 1991, he did so for a very sensible reason: Congress had just made them illegal for many purposes, including the ones for which Major League players would be using them. No sports league can afford to develop drug policies in open defiance of the prevailing laws of the country in which it operates. The inescapable fact of the law aside, I remain unpersuaded by health-based arguments for banning PEDs, particularly those that are not otherwise proscribed by federal statute. One source of my discomfort with the current regime is what’s legal and acceptable in the world of sports includes potentially very dangerous drugs that are addictive and prone to misuse. The recent “painkiller” lawsuit by retired NFL players against what they allege have been the league’s irresponsible medical practices is a reminder of just how damaging the legal stuff can be.
Reasonable people can disagree about all this. Most fans seem happy that there is more widespread drug testing in place in organized sports nowadays. Bob Costas is especially delighted. And whether the drugs that are currently verboten should be is not relevant to how we might judge Arod or any other player caught using, since they knowingly broke rules they committed to playing by. Forgive me, though, for not getting up in arms over use of substances whose banning took place under dubious political circumstances, pushed in part by a politician who – despite his own generally breath-taking sanctimony – possesses a very questionable moral and ethical compass. There is more to the leagues’ efforts to minimize PED use than Orrin Hatch, of course. But it would be nice if, at least once in a while, discussion of PED use in sports were driven by something other than sanctimony and historical myopia.