Steroids and Steroid Precursors in College Sports
The Response to the “Pills in the Locker” by Sports Bodies and Congress
by Rick Collins, Esq.
Anabolic Steroid Precursors and the NCAA
Most professional and amateur competitive sports have banned anabolic steroids since the 1980s. Among the substances banned in the National Collegiate Athletic Association (NCAA) list of banned-drug classes are “anabolic agents.” [Bylaw 184.108.40.206] The term includes generic “anabolic steroids” as well as many specific pharmaceutical anabolic steroid compounds such as testosterone (if by administration of testosterone or other manipulation the ratio of testosterone to epitestosterone in the urine exceeds 6:1, absent a physiological or pathological condition), nandrolone and stanozolol (the bane of Canadian sprinter Ben Johnson in the 1988 Olympics). Also banned are “related compounds”, substances that are included in the class by their pharmacological action and/or their chemical structure. The bylaw provides broadly that no substance belonging to the prohibited class may be used, regardless of whether it is specifically listed as an example.
As the number and variety of potentially performance-enhancing substances and their masking agents have evolved, sports agencies and governmental authorities have struggled to keep pace. Drug testing programs have gravitated toward a “strict liability” approach, making each athlete responsible for any banned substance found in his or her body, regardless of how it got there. [“A student-athlete who is found to have utilized a substance on the list of banned drugs … shall be declared ineligible for further participation “; Bylaw 220.127.116.11] A positive test result is sufficient to impose punishment; no trial takes place. There is no mechanism by which an athlete can promptly admit his guilt in conjunction with extenuating or mitigating circumstances in return for leniency. Under the current system, neither plea nor sentence bargaining is an option; it’s all or nothing for the athlete accused of doping, regardless of the individual facts. It is the athlete’s obligation to file an appeal if he or she desires. The burden of proof is then upon the athlete to challenge the result, such as by establishing collection or testing protocol breaches, chain of custody flaws, lack of notice and the like. The design is a reversal of the American criminal justice system, where due process places the burden on prosecutors to prove guilt beyond a reasonable doubt in an adversarial proceeding and where even murderers are innocent until proven guilty. Nevertheless, these tactics were deemed necessary to combat the problem of drug use in sports.
Drug testing programs were to face even tougher difficulties when, in late 1996, a steroidal compound called androstenedione appeared on the dietary supplement market. Androstenedione or “andro”, a precursor to the sex hormone testosterone, achieved national notoriety in 1998 when a bottle of the pills was spotted in the locker of St. Louis Cardinals slugger Mark McGwire. In the years that followed, androstenedione was followed by myriad other steroid precursor pills, commonly called “prohormones” by industry and consumers, which were marketed to increase lean body mass.
Dietary supplements have never been embraced by “anti-doping” agencies. But prohormone supplements were of particular concern, presenting at least four problems beyond any perceived health issues. First, by their very nature and design they defied traditional sports values: these were little pills that might give the player who swallowed them a chemically-induced advantage over the player who didn’t. Second, some of the steroid precursor products shared metabolites with banned anabolic steroids, raising the specter of false positives [norsteroid prohormones, for example, can result in a positive test for nandrolone because both nandrolone and the norsteroid prohormones give rise to the urinary excretion of the metabolites norandrostenedione and norandrostenediol]. Third, traditional drug screens might fail to detect some of the newer “designer” steroid configurations. And fourth, poor quality control at the manufacturing level presented the possibility that some dietary supplement products might inadvertently contain steroid precursors by “cross-contamination”, resulting in false positives for anabolic steroids.
The obvious first step toward a solution was to ban steroid precursors in sports. Adding steroid precursors to the list of banned substances would solve the first three of the four problems described. Accordingly, the NCAA added steroid precursor products such as androstenediol, androstenedione, norandrostenediol and norandrostenedione to the list of banned-drug classes. However, the products remained on the public market as popular over-the-counter dietary supplements, continuing to cause problems. The continued availability of the products was viewed as undermining the message of the sports authorities. The dazzling and ever-expanding array of new compounds forced a process of constant vigilance and revision of drug screens. And the problem of positive doping results from cross-contamination made national headlines when U.S. bobsledder Pavle Jovanovic was disqualified from the Salt Lake Olympics for a test result he blamed on a cross-contaminated protein powder supplement, and when research conducted at an IOC-accredited drug testing laboratory in 2002 found 94 of the 634 samples contained substances not listed on the label that would trigger positive drug tests. Outraged anti-doping authorities demanded federal legislation to remove the products from the market. Coalitions were formed, lobbyists were engaged, and several bills were introduced on Capitol Hill.
A bill banning steroid precursors was passed in October of 2004, two years after the first of the bills appeared. The ultimate passage of the legislation was greatly assisted by the occurrence of what has been described by sports journalists as “the most far-reaching steroids scandal in American sports.” A Burlingame, California performance nutrition company called BALCO exploded onto the headlines when law enforcement agents raided the laboratory and searched the home of the personal trainer of San Francisco Giants slugger Barry Bonds. An escalating hunt for “designer steroids” and cheating athletes ensued, with dozens of professional and Olympic athletes called before a federal grand jury. Sports writers locked onto the story with relentless tenacity, ratcheting speculations about rampant athletic steroid use to feverish levels.
Reports of adolescent use of steroids and steroid precursors also made prime time news. By January 2004, the United States President had devoted part of his State of the Union speech to urge baseball and other sports to “get rid of steroids now.” When four men connected to BALCO were indicted in February 2004 on charges including the illegal distribution of steroids, Attorney General John Ashcroft himself made the announcement.
The New Anabolic Steroid Control Act
The Anabolic Steroid Control Act of 2004 took effect on January 20, 2005, revising and expanding the Anabolic Steroid Control Act that had been passed in 1990. The new law provides $15 million for educational programs for children about the dangers of anabolic steroids, and directs the U.S. Sentencing Commission to consider revising federal guidelines to increase the penalties for steroid and steroid precursor possession and distribution.
The law adds 26 new steroid compounds, including many steroid precursors, to the previous list of substances that are legally defined as “anabolic steroids”. [The new compounds are androstanediol; androstanedione; androstenediol; androstenedione; bolasterone; calusterone; *1-dihydrotestosterone (a.k.a. “1-testosterone”); furazabol; 13b-ethyl-17a-hydroxygon-4-en-3-one; 4-hydroxytestosterone; 4-hydroxy-19-nortestosterone; mestanolone; 17a-methyl-3b,17b-dihydroxy-5a-androstane; 17a-methyl-3a,17b-dihydroxy-5a-androstane; 17a-methyl-3b,17b-dihydroxyandrost-4-ene; 17a-methyl-4-hydroxynandrolone; methyldienolone; methyltrienolone; 17a-methyl-*1-dihydrotestosterone (a.k.a. “17-a-methyl-1-testosterone”); norandrostenediol; norandrostenedione; norbolethone; norclostebol; normethandrolone; stenbolone; and tetrahydrogestrinone.] Some of these new substances have been widely marketed as dietary supplements, such as androstenedione, norandrostenedione, norandrostenediol, 1-testosterone, and 4-hydroxytestosterone. Others, such as bolasterone, calusterone, furazabol, and stenbolone, are actually very old pharmaceutical steroids that were missed in the original federal law (note, however, that some states, among them California, did include some of these compounds in their own steroid laws). These compounds were likely included after the highly publicized reemergence of norbolethone (also added to the list) in an Olympic urine sample. Also listed is tetrahydrogestrinone (THG), the “designer steroid” that started the BALCO scandal. [Similarly, THG was also added to the NCAA list of banned-drug classes.] However, after a protracted battle on the issue among members of Congress, the law permits the continued sale of dehydroepiandrosterone (DHEA) as a dietary supplement by adding it to the list of other excluded hormonal substances (estrogens, progestins, and corticosteroids) [In contrast, DHEA remains on the NCAA list of banned anabolic agents.]
The law also changes the general requisite elements of an anabolic steroid. The “promotes muscle growth” language that preceded the list of compounds in the 1990 steroid act is now removed from the statute. Strangely, an anabolic steroid, under the new law, need not be anabolic. It simply needs to be chemically and pharmacologically related to testosterone, and either on the new list of substances, or any salt, ester, or ether of a substance on the list. [In contrast, the NCAA definition of anabolic agents is much broader, and encompasses, through the term “related compounds”, substances that are included in the class by either their pharmacological action or their chemical structure.]
Penalties for Possession of Steroids and Steroid Precursors
The new law is far more than a ban on precursor supplement sales. An extensive list of new steroids and steroid precursors are now classified as controlled substances pursuant to the same law that prohibits heroin, marihuana and other drugs with the potential for abuse that may lead to physical or psychological dependence. Prohormones, like pharmaceutical anabolic steroids, are now Schedule III drugs, just like barbiturates and narcotic painkillers such as Vicodin. Persons who possess prohormones now face arrest and prosecution. Possessing a single andro tablet, for example, or one of many other prohormones is now a federal crime [21 United States Code, 844], punishable by up to a year in jail for a first offense, even if the product was purchased prior to the change in the law. Distributing steroids or steroid precursors unlawfully is a felony punishable by up to five years in prison (10 years for a prior drug offender). Some new prohormone drug crimes could trigger forfeiture laws permitting the government to seize assets. And a drug conviction, even for mere possession, can be a bar to certain licenses and, significantly to students, even a bar to federal school financial aid. It should be noted that while the law may be helpful in remedying some of the headaches for drug testing authorities, criminalizing the products through a “drug war” approach also affects fitness-minded, otherwise law-abiding consumers who do not compete in any sports at all.
Nevertheless, it is unlikely that we will see police officers arresting possessors of the newly scheduled prohormone products in the immediate future. While anyone who possesses the newly controlled products will indeed be a drug criminal, for now the products are newly controlled only at the federal level. This is important, since most steroid cases are brought in state courts, not federal courts. If the products aren’t scheduled by state laws, state courts can’t prosecute them as a controlled substance crime. Unless and until individual states pass legislation to make their laws consistent with the new federal law, which could take several months or even years, state authorities will have little incentive to go after prohormone possessors.
The approach to combat steroid and steroid precursor use in competitive athletics has been two-fold: the imposition of administrative penalties by the sports agencies for those who test positive for the drugs, and the imposition of sanctions to criminalize those who possess them unlawfully, regardless of sports involvement. The focus, in both instances, is on the drugs or substances themselves. Neither approach is free of problems. Drug testing continues to be a game of cat-and-mouse as new performance-enhancing compounds and masking techniques emerge. Catching up to the cheaters can take decades. A test for human growth hormone, for example, remained elusive for over twenty years. Criminal laws and sanctions may be largely irrelevant to athletic steroid use, at least at commercialized levels, since in the fourteen years since the original Anabolic Steroid Control Act went into effect it is impossible to think of a single professional, Olympic or elite level player who was ever arrested, much less imprisoned, for steroids. Those who’ve been arrested under the law for personal use possession of steroids have been almost exclusively non-competing, purely cosmetic users.
It may be that steroid use in competitive sports isn’t, at its heart, a drug problem after all. Rather, steroids may be merely a tool. Surely, when used as a tool to garner an unfair advantage in violation of the rules and spirit of sport, steroids present a significant problem. But eradicate one tool, and another will be created or discovered. Steroid precursors were, in some measure, a response to steroid prohibition, and new substitutes will soon be developed. Ultimately, those determined to win at any cost will inevitably find a way to cheat. Steroids are merely pharmaceutical medications, possessing neither intrinsically good nor evil characteristics. Since steroids have legitimate applications in modern medicine, the important distinction is one of context.
Steroid use in sports, then, is not so much a drug crisis as an ethics crisis. If that’s the true heart of the problem, we need to look beyond drug testing and new criminal laws. We need to ask the tough questions about what drives the “winning at all costs” attitude. To what extent has cheating become more acceptable in our society? To what extent does the failure of our public schools to teach morality play a part? To what extent are the economic factors and pressures to succeed inherent in the increasing commercialism of college sports a culprit? Are cheating athletes so different from others in society who’ve lost their moral compass when faced with pressure or temptation? Ultimately, the cheating athlete is less akin to a drug offender than to a stock trader disclosing inside information, or to an executive with a valuable corporate secret he’s looking to sell. Or to a university coach who hires a tutor to write term papers for his players to hide their academic failings and let them focus on winning the next game. While drug testing will always be a component in combating sports cheating, perhaps demonizing the drugs has conveniently allowed us to externalize the problem, shifting the focus away from the painful introspection required. Perhaps the problem of steroids in sports lies not within the pills, but within ourselves.
Rick Collins, JD, CSCS is the lawyer that members of the bodybuilding community and nutritional supplement industry turn to when they need legal help or representation.
[© Rick Collins, 2011. All rights reserved. For informational purposes only, not to be construed as legal or medical advice.]