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Neuro-Doping and Fairness

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Abstract

In this article, we critically discuss different versions of the fairness objection to the legalisation of neuro-doping. According to this objection, legalising neuro-doping will result in some enjoying an unfair advantage over others. Basically, we assess four versions. These focus on: 1) the unequal opportunities of winning for athletes who use neuro-doping and for those who do not; 2) the unfair advantages specifically for wealthy athletes; 3) the unfairness of athletic advantages not derived from athletes’ own training (conventionally understood); and 4) the unfair health care costs imposed on everyone as a result of athletes’ use of neuro-doping. We conclude that none of these versions offer a convincing principled fairness-based objection to legalising neuro-doping.

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Notes

  1. Nitsche et al. [1], for instance, refer to data showing that tDCS is associated with, e.g., tissue damage and neurological diseases such as epilepsy. However, the scientific literature is rather mixed on the issue of whether it is safe to use tDCS. For references to studies concluding that the use of tDCS is safe, see e.g. Arul-Anandam et al. [2] or Dayan et al. [3].

  2. For a critique of WADA’s idea of the spirit of sport, see e.g. Petersen and Lippert- Rasmussen [5] and Møller [6].

  3. See e.g. Murray [7]. For a critique of this type of worry, see Veber [8] and Petersen [9].

  4. The unfairness objection seems to be narrower in scope than health-based objections, as the latter, unlike the former, given certain versions of paternalism, also apply outside the competitive contexts (whether it be in sport or not). However, as we show in Section 5, one version of the unfairness objection is based on the assumption that doping is bad for your health.

  5. Exceptions to the not-in-the-context-of-sports-claim include Park [12] and Lavazza [13]. Park will be discussed in Sections 4 and 6.

  6. An anonymous reviewer suggested that a ban on ND might be justified on the ground that its introduction is unfair to athletes of the past. We have two worries about this line of argument. First, we are not certain that it has any moral weight at all. Surely, there are lots of other interventions, improvements etc. that would raise the same concern, if ND does, and which, intuitively, do not, e.g., we do not think it is unfair to past generations of athletes competing in Tour de France that a 1903 bike is much heavier than a 2020 bike. Second, even if this concern has moral weight, we do not think it has enough weight to justify banning the relevant enhancements.

  7. For references to scientific studies that can be taken as evidence for tDCS performance- enhancing effects, see e.g Lavazza [13] and Garasic and Lavazza [21].

  8. Strictly speaking, P3 should say that, from the perspective of fairness, the use of ND by athletes should be banned. However, there are other values than fairness, so, consistently with P3, it might be that, all things considered, the use of ND should not be banned.

  9. Some might object at this point that there is such a thing as the Paralympics. We acknowledge this, but also note that when it comes to prize money and commercial value, Paralympics athletes fall far below other able-bodied athletes.

  10. Hence, empirically speaking, at least, it is hardly correct, given a literal interpretation of Mølholm’s position, that competitive sport builds on “... competition between equal athletes, who have had the same opportunities to prepare themselves and perform.”

  11. See Savulescu, Foddy and Clayton [27 , p.669]. See also Loland [28 , p.94] who writes that "… it seems unfair when Scandinavian cross-country skiers with extensive technological support compete against Ukraine or Belarus skiers with almost no support system at all. Financial and technological 'muscles', and not athletic abilities and skills, is decisive of the outcome.”

  12. It is common to think, as Scanlon does, that substantive equality of opportunity requires formal equality of opportunity and something else. For presentational purposes, we treat the former as something that is not contained in the latter.

  13. With the exception, though, that sport is usually divided into male and female categories. Further, while athletes who are trans women are allowed to participate in, e.g., the Olympics, they are only allowed to do so if “ … trans women athletes declare their gender and not change that assertion for four years, and demonstrate a testosterone level of less than 10 nanomoles/liter for at least one year prior to competition and throughout the period of eligibility” https://en.wikipedia.org/wiki/Transgender_people_in_sports. (Accessed May 19 2020).

  14. One might question why we should accept that elite sport celebrates and pays the genetically (and socially fortunate) and largely (although not formally) excludes persons who, genetically or socially speaking, stand no chance of succeeding in elite sport? As a general matter, elite sport involves giving extra advantages to persons who are already at an advantage and cultivates a “survival of the fittest and richest” mentality. Athletes who use doping to compensate for their shortcomings because they lost out in the genetic or social lottery are punished, ridiculed and stigmatised. This could be seen as motivating biological egalitarianism. For this view, see Torbjörn Tännsjö’s article in this issue, and Tännsjö [32].

  15. The same point applies to radical substantive equality of opportunity, which, however, we bracket here for reasons already indicated.

  16. Some might reply that while we are right that the use of ND might not increase unfair inequality of opportunity, as a matter of fact it will. In one sense, this reply misses its target, since our concern is whether there is a principled fairness-based objection to ND. In any case, we briefly address something like this reply at the end of this section.

  17. Cf Williams [31].

  18. Our aim in this article is not to argue for the implausible thesis that, under no actual circumstances and for no ND technique ever, is there a fairness-based objection to permitting it.

  19. See e.g. https://www.haloneuro.com/products/halo-sport-2. (Accessed May 25 2020).

  20. Park and others do not offer any explanation of why we should ban ND but not ban expensive equipment like the Babolat© tennis racket and countless similar or even more expensive pieces of equipment.

  21. A further concern here is the following: if fairness dictates that one should forbid the use of performance-enhancing devices that cost $400 or more within sports disciplines where one can participate without having to bear that sort of cost, what should we then say about sport disciplines where just to participate in them without any sort of performance-enhancing devices one will have to bear costs far in excess of $400, e.g., motor racing? Does one’s fairness-based view of the latter not motivate forbidding the latter sports disciplines altogether on the ground that in those disciplines, poor athletes do not even have the opportunity to participate and lose? We suspect that some might respond that this would result in the loss of massive enjoyment and pleasure among spectators attending or watching motor sport events etc. and that this justifies not banning them. But then, of course, one might ask whether, in principle at least, for similar reasons expensive performance-enhancing devices should not be permitted in cheap sport disciplines.

  22. The motivation for permitting the use of certain presently expensive pieces of equipment, training devices etc. is to promote fair equality of opportunity, not to protect the interests of cheaters. Indeed, by permitting the use of the relevant pieces of equipment etc., the users would no longer be cheaters.

  23. An anonymous reviewer suggested we weaker and more plausible version of P6, to wit, “P6* If P4* and P5, then the use of ND by athletes should be banned” where P4* says “Fairness requires that rich and poor athletes do not have too unequal opportunities to win”. Unlike P4, P4* is satisfied even if rich athletes have better opportunities to win than poor athletes. Since P6* is weaker than P6, we agree that it is more plausible. However, we do not think that P4* is plausible. What might make it seem plausible is that ensuring fairness in the competing between rich and poor athletes will often require to great sacrifices in terms of other values.

  24. Lenk’s view on the unfairness of doping seems very similar to that of philosophers like Loland [28 , p.95]), who argues in favour of a ban on doping because “[t]he use of performance enhancing drugs is seen as a shortcut of ‘natural’ biological adaptation to training, and as a reduction of individual responsibility for performance.”

  25. As an anonymous reviewer pointed out, the use of ND could be under some interpretations of “training and performance” be seen as something that falls under that label rather than as something different from it. However, we want to flesh out this notion, it is clear that such interpretations are not congenial to the ambition of providing a Lenk-style argument for banning ND.

  26. For a critic of Corlett et al. [16] and Corlett [34] on whether athletes’ choice of doing sport is a voluntary choice, see Frias and McNamee [35].

  27. Admittedly, this problem is mitigated to the effect that Corlett et al. think that the principle should only be applied against a background of fair distribution. That, however, would presumably also affect the principle’s implications regarding the use of ND.

  28. There are some affinities between Corlett et al.’s Actuarial Principle and Dworkin’s view that distributions should be ambition-sensitive. However, one crucial difference between Corlett et al.’s view and Dworkin’s [36] is that Dworkin only wants to enforce the norm of ambition-sensitive under conditions where background justice is ensured, i.e., in his famous hypothetical scenario: a situation where all external resources have been distributed through his auction and inequalities in internal resources reflecting differences in sheer luck have been mitigated through his hypothetical insurance scheme (or some institutional device that mimics its outcomes).

  29. In the light of our criticism one might suggest an even weaker version of P13, to wit, P13**: Fairness requires that athletes who participate or train for participation in competitive sports do not, as a result of this participation, negligently or recklessly impose net costs on others. Obviously, this raises the question of when the use of ND is negligent or reckless. However, the main problem is that at most an argument appealing to P13** would at best constitute something much weaker than a principled objection to the use of ND, to wit, a case for banning the negligent or reckless use of ND by athletes when it imposes health costs on others. Hence, in essence the concern behind P13** would seem to speak in favour of regulation rather than banning ND.

  30. See e.g Savulescu, Foddy, Clayton’s [27] reasons for the claim that some forms of doping are not harmful, and Kayser and Smith’s [26] reasons for the claim that anti-doping policy, by its punitive nature, increases the harm associated with the use of doping.

  31. A similar implication would follow if the health risks involved in ND are grave but of such a nature that the use of ND actually reduces the expected health care costs for others.

  32. See e.g. Hatziandreu [39].

  33. We are assuming here that for the purpose of determining the health care costs imposed on others as a result of athletes’ use of ND, we should compare the real world with the closest possible world in which ND is legal rather than compare a world in which ND is illegal and not used – in the real world, the use of banned substances etc. is very widespread – with one where it is legal and used.

  34. See e.g. Penedo et al. [41].

  35. Admittedly, the benefits might accrue to different people than those on whom the costs are imposed, and that would be morally significant according to some moral views, e.g., contractualism.

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  1. Department of Communication and Arts, Roskilde University, Universitetsvej 1, DK-4000, Roskilde, Denmark

    Thomas Søbirk Petersen

  2. Department of Political Science, Aarhus University, Aarhus, Denmark

    Kasper Lippert-Rasmussen

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Petersen, T.S., Lippert-Rasmussen, K. Neuro-Doping and Fairness. Neuroethics 14 (Suppl 2), 179–190 (2021). https://doi.org/10.1007/s12152-020-09447-3

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