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Doping, Torts, and Monetary Damages

Boxer John Ruiz is suing opponent James Toney over a tort that allegedly occurred in their title bout last April. Toney tested positive for the steroid Nandrolone following the fight, but claims that the positive test is the result of his legitimate use of the drug to rehab following surgery. Ruiz claims that he lost the fight because Toney was stronger and faster as a result of his steroid use and seeks monetary damages caused by the loss.

Hold off a minute before tut-tutting about the litigious nature of society today, because this might be a solution to the problem of reducing the use of performance enhancing substances in sport. Would-be regulators of performance enhancing substances like steroids and EPO face a number of problems. One is monitoring. Monitoring athletes for doping is costly. Regulators use random testing to overcome the monitoring problem, but this approach has some limitations, including the small fraction of the sample that is actually tested; random testing also appears to be an ineffective deterrent of performance enhancing drug use. One group that might have an advantage in monitoring athletes for doping are other athletes. Competitors might be better able to tell the difference between improvements attributable to better or harder training and improvements attributable to doping than regulators. And competitors have stronger incentives to detect athletes who are breaking the rules than regulators.

A second problem facing regulators is that many of the benefits of improved athletic performance have public good properties: they are non-rivalrous and non-excludable. Fans clearly derive satisfaction from watching sport played at the highest level. The public good nature of the benefits of improved athletic performance make it difficult to enforce doping regulations because it means that some of the costs associated with doping also have this property.

However, if the parties that were damaged by an athlete's use of performance enhancing drugs could sue the athlete and recover monetary damages, this would privatize some of the costs of doping, and might act as a deterrent. The slap on the wrist that baseball players get for violating the league's rules prohibiting steroid use does not appear to deter steroid use. But what if baseball fans could file a class action suit against a player that breaks these rules and recover monetary damages? The possibility of a $10 million judgment might have a much larger impact on the decision to use performance enhancing drugs than a 10 day suspension

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