On Whereabouts and the Biological Passport – Making Visible the Invisible Act of Doping.
Making Visible the Invisible Act of Doping.
This paper describes the construction of the visual space of surveillance by the global anti-doping apparatus, it is a space inhabited daily by professional cyclists. Two principal mechanisms of this apparatus will be discussed – the Whereabouts System and the Biological Passport; in order to illustrate how this space is constructed and how it visualises the invisible act of doping. These mechanisms act to supervise and govern the professional cyclist and work to classify them as either clean or dirty in terms of the use of prohibited doping substances or methods. Contrary to the analysis of liberal anti-doping scholars such as Hanstad, Loland and Møller this paper argues that Foucault’s Panopticon paradigm is a useful tool for the analysis of this apparatus.
The Whereabouts System and Biological Passport are the instruments by which the anti-doping apparatus intensifies the construction of the space of surveillance in professional sport. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, but it also makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. In making the cyclist visible the instruments do not allow the cause of doping, or the event of doping to be known or observed. Rather what they do is cast the body in terms of abnormalities of time, place or blood. In the case of an abnormality of the cyclist’s blood, the cause itself cannot be identified with any certainty, all that is made visible is a suggestion, or a probability, that doping may have occurred.
The ultimate effects are twofold – an internalisation and continual monitoring of one’s self as well as by the authorities, and a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence by the use of scientific evidence and expert commentary are transformed.
The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through the discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. The result is a redistribution of the way in which the law visualises and treats the symptoms (the signifier) and the signified act of doping.
Anti-Doping Law and Global Governance
One of the more forceful criticisms levelled by liberal commentators of anti-doping law and policy is that the manner in which the system established by the World Anti-Doping Code (WADC) operates is not consistent with traditional notions of the rule of law and the separation of powers, particularly the separation between judicial and executive powers. It is the premise that, to a large part, underlies Møller’s analysis of the scapegoating of Michael Rasmussen, and is made explicit in the quoting of the United States journalist Hiltzik:
“What has evolved to protect competitive purity since then [the establishment of WADA] is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals and challenges” (Møller 2011b:281).
Møller’s book on Rasmussen is important as it sets out in detail the manner in which the International Cycling Union, the Tour de France, the media and Rasmussen’s team, Rabobank, handled, or mishandled the administration of the Whereabouts system that operates in that sport. Møller painstakingly documents the manner in which the 2007 Tour de France leader, and at that point probable winner of the race, was ‘retired’ by his team for no better reason than to quell a media storm played out in Debord’s Spectacle (Debord 1983:147). Møller’s documentation shows us that Rasmussen was not in breach of any rules that justified his exclusion from the race. He had not received the three Whereabouts warnings necessary to constitute an Anti-Doping Rule Violation (ADRV) and a two year ban from competition. Furthermore, contrary to the Whereabouts rules, details of his file were leaked to the media by the Danish anti-doping authorities. In the report “I Wish I was Twenty One Now – Beyond Doping in the Australian Peloton” there appeared one quote in respect of the Rasmussen case (Hardie, Shilbury, Bozzi and Ware 2012:110). The question and the response of the interviewed professional cyclist put into context the gravity of the events that took place in Pau in July 2007:
Q: Are you ever amazed that Rasmussen is still alive? I actually think sometimes, I really seriously am amazed that he hasn’t committed suicide.
A: Yeah, that was I think an oversight on Rabobank’s point of view, I don’t know. I was there and I’m part of that team and I don’t know enough about that. But I think it was an oversight on them when they kicked him out of the Tour, to leave him alone that night. They put him in a hotel room 100km up the road or something, with that, driven there by a PR lady or something. Really, somebody should have been on suicide watch.
Q: Well, I’m still amazed about it.
A: Taking the Holy Grail away from somebody.
This article is not about the Rasmussen case, but nevertheless that case does help us situate the operation and effect of the Whereabouts System. But what Møller’s perspective fails to consider are the mutations and the different logics or rationalities of the rule of law. Furthermore, his analysis doesn’t take into account the manner in which the emphasis of government has moved from one of law in the formal sense, towards a question of governance. It is one intersection within the zone in between law and governance that I wish to consider here.
One aspect of this general movement from law to governance that interests me is the manner which within a global world of generalised competition, sport itself acts as a form of general global governance. However, what I wish to develop here is a more particular or localised example drawn from the world of sport: the manner in which athletes (in this case professional cyclists) are increasingly themselves governed within this global framework and the place that the Whereabouts System and the Biological Passport play in that apparatus of governance. To understand these instruments of the global anti-doping apparatus we need to descend into the hidden abode of the athlete’s world, and in particular the manner in which this apparatus deals with, or supervises and governs their daily lives and activities. Hence what follows is an overview of the manner in which the individual cyclist, by their membership of the global population of cyclists, are made objects of a regime of anti-doping testing and surveillance. By doing this we can begin to uncover the manner in which the operation of these two instruments contribute to making the private lives and bodies of professional cyclists visible to those that function as administrators of this apparatus. In doing so the hidden act of doping is itself sought to be made visible. As a part of this analysis I wish to consider the manner in which anti-doping scholars have sought to either justify or criticise the Whereabouts System by reference to Foucault’s work on the Panopticon. This helps us understand what is at stake. It also points to the limitations of their analysis and suggests that a closer reading of Foucault’s paradigm of the Panopticon is in fact applicable to the Whereabouts System and the anti-doping apparatus more generally. My point is that the paradigm of the Panopticon and its extension through concepts such as biopower and the society of control do in fact assist us in a better understanding of what is actually at play in this case. They help us grasp how the apparatus makes the invisible act of doping visible and in its process how the law is transformed.
Before undertaking that task it is worth making the point that this apparatus forms a part of what Marazzi has described as “an experiment in post-Fordist governance” (Marazzi 2011:136). Like myself, Marazzi is concerned with “the gradual transformation of politics into administration” and the place of the “emblematic problems of post-Fordist societies” in this transformation, among which he includes drugs (Marazzi 2011:135). For Marazzi the manner in which these problems are dealt with become technical (rather than legal or democratic) problems in which the:
“drug addict strays from the consensual and ‘discursive’ democracy, … to consider him as a citizen would be contradictory in terms of representative democracy. The drug addict is incapable of representing the whole of civil society: he is in fact, a marginal, he is not included in a representative democracy whose rules he does not abide by, he is an ‘impossible subject,’ irreducible to the norms of common living. As such, he can only be considered an ‘administrative subject,’ outside of the democratic debate on the deeper causes of his existence … the question of democracy … (has been) liquidated through a purely technical approach to the issue of drug addiction” (Marazzi 2011: 138-139).
Marazzi’s point is that public measures against drug addiction reflect larger issues relating to the post-Fordist construction of a “democracy ‘without rights’ … the drug addict, the refugee, the unemployed are the ‘human material’ on which to experiment with the new technologies of social control …”. To the conception of “democracy ‘without rights’” we can add that of ‘law without rights‘ which itself operates as a technical measure. My point is that this system of law without rights not only includes, what we might call parts of the population of the global poor, but also those who seemingly inhabit a space reserved for the global elite. In this manner it is not just, for example, the drug addict, the refugee, or the unemployed (who may at the same time be seen as figures of Agamben’s Homo Sacer see e.g. Hardie 2011 and Kreft 2009). In the case of the anti-doping apparatus the experiment is also being carried out on those that, simultaneously, perform a role in the governance and propagation of the generalised system of global competition. The broader context and ramifications of the anti-doping apparatus are brought home to us by comments such as those by the former Australian minister for Sport, Kate Ellis at the 2010 Australian New Zealand Sports Law Conference, where she stated that the Whereabouts System was in fact a model which could be deployed throughout society. Furthermore the Western Australian branch of the Liberal (conservative) Party has recently called upon random drug testing to be carried out on welfare recipients, with the proposal that any positive test should result in the withdrawal of benefits (Perth Now 2011).
It is important to note that the anti-doping regime does not differentiate between the amateur and the professional, by taking out membership with a cycling club and receiving a ‘cycling licence’ all those who join consent to become objects of this regime. The only difference being is that the professional is subject to the extreme intensification of the anti-doping apparatus. It is primarily the Whereabouts System and the Biological Passport that constitute this intensification and which are at the forefront of this experimentation. The two instruments also constitute the primary manner in which the space of surveillance is constructed. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, it also in turn makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. The combination of the Whereabouts System and the Biological Passport thus makes the cyclist visible. These systems cannot by themselves cause the actual act of doping to be identified with any certainty, rather what they do, by casting the place of the body and the constitution of its blood in terms of abnormalities, is to suggest a probability that doping may have in fact occurred.
Within the academic literature on anti-doping there is exists a high preponderance of psychological analysis which addresses the problem of doping as one of moral reasoning (see for example Long et al 2006, Lucidi et al 2008 and Boardley, & Kavussanu, 2008). According to the logic of moral reasoning anti-doping targets misplaced motives framed as unacceptable morals and thus these authors assume that a doping offence is due to lack of knowledge, ignorance or unfairness on the part of the offender. Consistently with the individualisation of the problem the anti-doping apparatus consistently constructs the im/moral individual as the focus of attention and regulation. This is done despite the fact that in some cases the question of whether doping is not a moral but a technical question. For example, in the 2009 Tour de France the U.S. team Garmin Slipstream (widely regarded as a clean and ethical team) made extensive use of the drug pseudoephedrine which at that time was not banned in sport. The following year, 2010 pseudoephedrine was again placed on the List of Prohibited Substances. Similarly, blood doping in its various forms is banned whilst processes such as altitude training or methods that reproduce the same effect are not banned. The question of its use was simply one of whether it was on a list of banned substances, a technical question and not whether or not its use was in some way moral or not.
Before moving directly to outline how the WADC individualises doping it is also useful to note that although many of those that adopt or implement its provisions are State parties the Code is not a treaty in the sense that the term is used in relation to Public International Law, but a form of private agreement entered into by both State and non-State parties, both sporting and non-sporting. Along with that, as already mentioned, individuals also consent to the terms of the private agreement by taking out membership of their respective sporting club.
As the global constitutive or framework document for the anti-doping apparatus the World Anti-Doping Code (WADC) establishes two primary norms that may be transgressed by an athlete – the presence of a prohibited substance in their body and the use of a prohibited substance or method.
The individualisation of the problem is clear from the text of the WADC and its embodiment of the principle of strict liability. Article 2.1 of the 2009 WADC establishes the offence of the presence of a prohibited substance in a bodily sample taken from an athlete. The relevant parts of the article state that each athlete has duty to ensure no prohibited substance enters their body. In order to make out the offence it is not necessary to show intent, fault, negligence or knowing use on the part of the athlete, such that the (mere) presence of a prohibited substance is of itself sufficient proof. Furthermore, in most circumstances (other than certain specified substances) the presence of any quantity of the substance constitutes a violation.
Article 2.2 of the WADC establishes the offence of use or attempted use of prohibited substance or method. Accordingly it is each athlete’s personal duty to ensure that they do not use a prohibited substance or method, once again intent is not a necessary element of the offence, neither is whether or not an attempted use was carried through with or was in fact successful. The provisions of Article 2.2 in effect create a wider catch all situation, allowing for cases to be proven whereby no substance has been detected in an athlete’s bodily sample, or whereby there is evidence of an attempt to dope which itself has not been fully acted upon.
Article 2.1 adopts the principle of strict liability, which it is argued is necessary in order to properly carry out the fight against doping. Article 2.3 requires evidence other than a positive test result, such as actual evidence of use or for example other circumstantial evidence based upon the Biological Passport. Thus as we will see raises another set of difficulties in respect of proof. Similar to the positions mentioned earlier on the separation of powers, the strict liability principle has been criticised by some as being contrary to accepted principles of law and human rights (see McLaren 2006:4, 21, Coleman J.E., & Levine J.M. 2011:27). This was what was at issue in the Alberto Contador case and which led to the comments by the then President José Luis Rodríguez Zapatero on the government’s Twitter page: “there’s no legal reason to justify sanctioning Contador“, a position supported by his opponent and successor, current President Mariano Rajoy, and by Angel Juanes, the President of Audiencia Nacional (the Spanish High Court) who questioned the constitutionality of the strict liability principle, in so far as it removed the presumption of innocence (El Mundo 2011). Soek notes that although the burden of proof is on the prosecuting authority (the anti-doping or sporting organisation) to prove the offence, the practical effect of the strict liability principal is that the athlete appears prima facie guilty whenever a prohibited substance has been shown to be or have been present in their body (Soek 2006:41).
In respect of both provisions the standard of proof to be met by the prosecuting authority is that of comfortable satisfaction, something greater than the balance of probabilities used in civil cases, but generally not as high as the criminal standard of beyond reasonable doubt. The standard was adopted by the Court of Arbitration of Sport (CAS) from the jurisprudence of the Australian High Court and its decision of Briginshaw v Briginshaw (1938). As will be discussed below the manner in which scientific evidence is used in Biological Passport cases effectively lowers this apparent high standard of proof. The one exception to the strict liability principle, which in reality is not really an exception, as it does not go to excusing the offence but only to mitigate any penalty, involves the situation where an athlete can show how a substance entered their body, that it was not intended to enhance performance, and that there was no fault or negligence on their part (Article 10 WADC). If an athlete is able to adduce corroborating evidence of these elements, to the standard of conformable satisfaction, any penalty may be reduced from the standard two years of ineligibility (ban) from competition.
The point to be made here is that the WADC ultimately brings its disciplinary weight to bear upon the individual and their behaviour. As competition individualises everything, in the end it makes the individual ultimately responsible for their own actions and their own body. In the world of the war on the doper there is no such thing as society (Thatcher 1981).
The WADC operates in conjunction with five international technical standards issued by the World Anti-Doping Agency (WADA). WADA states that the standards are aimed at bringing harmonisation among anti-doping organisations in various technical areas, namely, the Prohibited List, Testing, Laboratories, Therapeutic Use Exemptions (TUEs), and Protection of Privacy and Personal Information. WADA states that the standards have been the subject of lengthy consultation among WADA’s stakeholders and are mandatory for all signatories of the Code. Given their mandatory status the norms articulated in the standards seep into the decisions of both sporting and State anti-doping documents and decision-making (Berman 2005:510). Any departure from the norms must be proven by an athlete on the balance of probabilities, but even when this is possible, certain provisions of the WADC, International Cycling Union (UCI) Rules and, for example, the Australian Sports Anti-Doping Authority’s (ASADA) National Anti-Doping (NAD) Scheme, contain ‘no invalidity’ clauses that seek to ensure that departures from the norms do no invalidate any positive doping test results (see e.g. XZTT 2012). Straubel argues that the WADA system is “nearly incapable of addressing the inherent imbalance of power between athletes and their accusers” (Straubel 2009:119) and that under the current WADC an athlete must prove both a departure from the ISL and that the departure was likely to have caused the positive result constituting “an exhibition of unchecked power” (Straubel 2009:138). Nevertheless, some cases of the Court of Arbitration for Sport (CAS) suggest that the threshold to be crossed by the athlete is not as high as Straubel puts it (see for example Landaluze 2006). But these cases and the exception therein are rare and difficult (see XZTT 2012).
Dimeo (2007) sets out in great detail the history of anti-doping and the development of the drug testing regime in sport. For our purposes what interests us is the transition that occurred in the late 1980’s from purely in-competition anti-doping testing, that is testing that took place only at sports events, to unannounced out-of-competition testing, that is testing that could take place at any time and place outside of events (Houlihan 1999:151). The Whereabouts System was introduced ostensibly as a mechanism to improve the administration of out-of-competition doping tests. In cycling the system is linked in its operation and purpose to the Biological Passport such that it is regarded as a necessary and complementary tool without which the Biological Passport would not be complete. Whereabouts is said to target out-of-competition testing by requiring individual athletes to state their physical location within set timeframes and, thus, make themselves available for the collection of both blood and urine samples. These tests, in turn, provide information for the Biological Passport, which itself contributes to the refinement and better targeting of such testing. It is because of this that the UCI regards the information gathered though the Whereabouts System as being imperative, in that it is said to enable anti-doping tests to be conducted anywhere in the world, at any time (UCI, 2008a). From 2008, the requirement to complete Whereabouts information was extended to include a large section of the professional cycling peloton. As such, all members of UCI professional teams and those in the Registered Testing Pools of their National Anti-Doping Agency (NADO) must provide online to the UCI or their NADO, a schedule of their Whereabouts. In doing so riders are required to complete their Whereabouts information in advance and in quarterly blocks.
The information provided by the athlete is intended to be strictly confidential and must only be used for the ‘relevant purposes’ and, once the three-month period has elapsed, the information must be destroyed. As the relevant purpose is the planning, coordinating and conducting of out-of-competition testing, the strict application of the rule would mean, for example, that after 30 March the information provided for the three months preceding is required to be destroyed as it is no longer relevant. Given the privacy concerns, one might expect these rules to be strictly interpreted – in a similar way that punitive or criminal provisions are always strictly interpreted so as not to impinge upon fundamental rights. However, Møller’s (2011b) work on Rasmussen shows that this rule has not always been followed. His analysis of Rasmussen’s case illustrates that the requirement of confidentiality may be overridden by the arbitrary requirements of the Spectacle.
The provisions of the UCI rules relating to Whereabouts Information are found in the Anti-Doping Rules of the UCI – Part 14 of the UCI Regulations. In particular, the provisions relating to the Whereabouts System may be found in Chapter V of Part 14 (Rules 81-119). In summary, the UCI requires riders to provide, at a minimum, the following information for each day of the year and before the commencement of each quarterly period:
- A one hour time slot each day where the cyclist guarantees to be available for an anti-doping test;
- Their residential address for each day – that is, the place where they will be sleeping;
- Their training schedule;
- Their competition schedule;
- Their travel schedule;
- The information must be updated whenever the cyclist becomes aware of a change to their schedule.
The required information is entered online by the cyclist into the Anti-Doping Administration and Management System (ADAMS). Interestingly and in a seemingly Orwellian manner, the US Anti Doping Agency considers the requirement to complete this information as one of the ‘athlete services’ they provide.
Article 2 of the WADC details the provisions that deal with Anti-Doping Rule Violations (ADRV). Pursuant to Article 2.4, a failure to provide proper Whereabouts information may constitute an ADRV. Under the provisions, any combination of three missed tests and/or filing failures within an eighteen-month period, as determined by anti-doping organisations with jurisdiction over the athlete, shall constitute an ADRV. The explanatory notes to the WADC (which do not form part of the Code itself) state that a failure to provide proper Whereabouts information may also constitute a breach of Articles 2.3 and 2.5 which deal with refusals and failures to submit to a test and tampering with an anti-doping control, respectively. Violations of, for example, Article 2.4 carry with them, pursuant to Article 10.3.3, a minimum of a one-year and a maximum of a two-year period of ineligibility (ban).
The Internalisation of Control
Predictably, part of the liberal reaction to Whereabouts System internationally has been a critique of its impact on personal privacy and debates regarding whether it can be defended as a morally valid system of surveillance. On the other hand, work with Australian professional cyclists has observed a tacit acceptance of the system as a necessary evil (Hardie, Shilbury, Bozzi and Ware 2012). In that study it was observed that the Whereabouts System was widely considered as an imperfect, but still largely useful and moderately successful deterrent and detection system for otherwise virtually undetectable doping methods. The following excerpt from the interviews conducted in that project suggest that the ‘paperwork’ involved in complying with the Whereabouts System is regarded by some to be of the same nature as other forms of regulation that one might need to comply with as a small businessperson or entrepreneur, that is, they are just facts of doing business:
I have to do Whereabouts and I have to do this, things can always be better sure but it doesn’t seem like it’s that big a deal. I think any vocation you’re going to have this paperwork to deal with and all this bullshit or licensing and stuff like that (Hardie, Shilbury, Bozzi and Ware 2012 unpublished interview).
Legal or ethical issues generally took second place to a pragmatic acceptance that Whereabouts was essential to a working anti-doping apparatus. One former cyclist commented that:
It addresses a key method that people have used to avoid control, so I would have thought it is an eminently reasonable expectation if you have an anti-doping program because that is the way people have got around controls: not being there. (Hardie, Shilbury, Bozzi and Ware 2012:93).
What is clear from these interviews was that, even at their most negative, there wasn’t any clear objection on what we might term ethical or moral grounds to the Whereabouts System itself. Even at its worst, the system was regarded as a necessary evil, and was generally rationalised by the interest in notions of rider health, fair play and, most importantly, the economic necessity of presenting a ‘clean’ sport. Most complaints arose initially at a technical level which may be understandable given that managing data on the daily movements of any given individual is a mammoth task.
Discussion of whether the system is ‘morally justifiable’ becomes more pressing when it is considered that three failures to comply result in an ADRV – that is a two year ban from competition or worse it can mean the end of a contract, reputation and in the end career. It is from this perspective that academic analysis has concentrated – the question as to how is the regime to be justified vis à vis an athlete’s human rights or civil liberties. Below I wish to consider two articles, both by leading anti-doping scholars, which have both discussed Foucault’s concept of Panopticism in the context of the Whereabouts System. Hanstad and Loland (2009) were the first to consider this issue. The used as their starting point Foucault’s concepts of a surveillance regime. Later Moeller (2011a) responded to their analysis.
To start with Hanstad and Loland accepted that athlete reactions to the system as a form of unacceptable surveillance seemed more cogent than criticisms based upon perceptions of justice (Hanstad & Loland 2009:7). How the two concerns – unacceptable surveillance and injustice; are so neatly separated was not made clear, but the authors concluded:
“We began by asking whether WADA’s compulsory reporting system can be defended on moral grounds. Our answer is conditionally affirmative. The arguments against the WADA-system do not seem powerful enough to reject it. Everyday surveillance of individuals is far more extensive, it is concealed and also more problematic. The WADA requires active participation from the person being watched. Hence, the system does not seem to involve undue violation either on the principles of justice or on athletes’ autonomy and right to self-determination” (Hanstad & Loland 2009:9).
Hanstad and Loland’s conclusions regarding the Whereabouts system seem to rest upon two propositions: “Everyday surveillance of individuals is far more extensive, it is concealed” and that the “WADA requires active participation from the person being watched”. In their analysis of the system the authors referred to the claims of some Norwegian athletes that Whereabouts constituted a “Big Brother system”, a perception they believed was “strengthened by the system not only affecting the individual’s life as an athlete, but also their whole lives” (Hanstad & Loland 2009:7). Hanstad and Loland accepted that surveillance regimes have increased in scope and complexity and that the “need to regulate can go too far”. In considering this aspect and in pursuit of striking a balance they turned to Foucault’s work for a “critical approach” (Hanstad & Loland 2009:8).
Their analysis commences with an acceptance of the proposition that Foucault’s work on the Panopticon “appears as a model for the development of Western society” (Hanstad & Loland 2009:8). They note Bentham’s “good intentions” in drawing up his plans for the model prison, and that Foucault points to opposite consequences: “far more subtle, disciplining and “normalizing” processes that more effectively reduce the individuals opportunity for autonomy and right to self-determination” (Hanstad & Loland 2009:8). Interestingly, and possibly without fully grasping Foucault’s point, they argue that in the light of the Norwegian populations reported lack of concern of the misuse of personal information the claim of opposite consequences is a paradox (Hanstad & Loland 2009:8). Rather than being a paradox, the apparent acceptance of surveillance and the mis/use of personal information may in fact be one of the consequences of such regimes that Foucault himself suggested. That is the docility of the population brought about by techniques of discipline results in them not being concerned, in their tacit acceptance of the fact that they are being observed and that the fruits of this observation may be used not only for their benefit but also contrary to it.
Hanstad & Loland then note that unlike convicted criminals or others, who are controlled following their release from prison, “athletes have committed no crime or rule violation … [having] to meet the demands of compulsory whereabouts reporting just because they might violate the rules … is without doubt unusual” (Hanstad & Loland 2009:8). It is correct that the only other members of society subject to similar location surveillance and reporting appear to us to be persons serving jail sentences, such as home detention and convicted but released paedophiles. In the interviews done by Hardie, Shilbury, Bozzi and Ware (2012:102-103) one participant commented on the situation as follows:
Q: Do you think other people in society should be subjected to surveillance like athletes are?
Q: No? So nobody should be subjected to that sort of surveillance?
A: No. But I think we are, though.
Q: We don’t have to report. You know we might be with cameras and all that, but I don’t need to report in. I don’t even have to tell my boss where I am any more. But who are the other people who are subject to such a reporting scheme?
Q: Not even criminals. Just paedophiles who have been released.
A: Probationary people.
Q: Yeah. They’ve obviously got this one going.
A: It’s like saying everyone’s guilty before they’ve even done the thing.
Another participant in that study commented (2012:103):
Q: Who else in society do you think is subject to such a …?
A: No one.
A: Yeah, exactly, that’s probably it, sex offenders … but I don’t think theirs is as strictly watched as ours.
Q: No. It says something about your role in society, I think, yeah?
A: I guess so.
Subjecting athletes to such measures of surveillance and location reporting, despite the fact that they have not actually violated any norm, is no doubt an exceptional measure within the bounds of what is perceived as a liberal democratic society (Waddington 2010). If one turns to the original text of Foucault it is apparent that he considered this type of surveillance to be an aspect of the Panopticon which in facts perfects power, by allowing it:
“to intervene at any moment and because the constant pressure acts even before the offences, mistakes or crimes have been committed … [in these conditions, its strength is that it never intervenes, it is exercised spontaneously and without noise, it constitutes a mechanism whose effects follow from one another]” (Foucault 1991:206).
However, in their analysis Hanstad and Loland either ignore or do not pick up on this normalising aspect of the Panopticon and its ‘pre-crime’ operation. The authors then go on to point out what they consider two significant differences that distinguish Whereabouts from other forms of surveillance and which in fact tend to legitimise it. It is necessary to cite in full their proposition, as it deserves close analysis and comparison with the text of Foucault:
“First, athletes themselves have to submit all the information about where they are, and second, violation of the regulations is followed by clearly defined consequences. This can hardly be described as a Big Brother-system where the athletes are being watched covertly. The whereabouts system is clearly detectable and open, and all athletes know the consequences of violation. There is a difference here between the criminal being electronically monitored as well, since athletes can withdraw from the surveillance. The point argued by, among others, Rune Andersen of the WADA, of sport as a voluntary practice in this fundamental sense is a relevant one” (Hanstad & Loland 2009:8).
In essence the differences between criminal surveillance and Whereabouts (which it is argued tend to legitimise the latter) rest upon four propositions. Firstly, sport and thus submission to the regime is voluntary or contractually based. Secondly, that the surveillee actively participates in the process (that is by providing the necessary information and as a consequences of the first proposition voluntarily). Thirdly, surveillance is not covert but known (and because of one and two – accepted). Finally, the consequences of any violation are known and open. On this basis, the implicit position of Hanstad and Loland is that the Whereabouts System is not an example of the Panopticon and thus can be justified as legitimate. Alternatively, at best, if it is an example of the Panopticon, the good intentions and beneficial nature of the system mitigate against its possible opposite consequences. The problem with this analysis is their interpretation of Foucault’s Panopticonic paradigm does not do justice to the original text.
It is not the purpose of this work to tackle the proposition that sport is a voluntary activity and that submission to anti-doping rules is thus a matter of contract. Reference was made to this point in our work with Australian professional cyclists (Hardie, Shilbury, Bozzi and Ware 2012:61). It is also clear that private agreement tends to form an increasing part of the body of global law and that it increasingly underpins the general organisation of neoliberal society. Furthermore, even Foucault noted that although the disciplinary paradigm of the Panopticon was “not under the immediate dependence or a great extension” of the juridico-political structures of a society “it is nonetheless not absolutely independent” (Foucault 1991:221-222). The rhetoric of contract has formed the “ideal foundation of law and political power; Pantopticism constituted the technique … of coercion” (Foucault 1991:222). In these passages Foucault described the disciplines as both an “infra-law” and “counter-law”, mechanisms that constituted the law but on a different scale creating:
“between individuals a ‘private’ link, which is a relation of constraints entirely different from contractual obligation; the acceptance of a discipline may be underwritten by contract; the way in which it is imposed, the mechanisms it brings into play, the non-reversible subordination of one group of people by another, the surplus of power that is always fixed on the same side, the inequality of position of the different ‘partners’ in relation to the common regulation, all these distinguish the disciplinary link from the contractual link, and make it possible to distort the contractual link systematically from the moment it has the content of discipline. We know, for example how many real procedures undermine the legal fiction of the work contract: workshop discipline is not the least important” (Foucault 1991:222-223).
What better description is there of the manner in which the contract to voluntarily participate in sport is transformed into a disciplinary (or control) mechanism by the incorporation of the Whereabouts System? From a reading of the text we can see that it is in fact the voluntary nature of the acceptance of surveillance by contract, which rather than distinguishing the Whereabouts System from the Panopticon paradigm, in fact supports the application of Foucault’s model of power to it.
In the contemporary context contract or private agreement, is increasingly one manner in which law is being removed from the sovereign sphere. If it is accepted that what is at stake in anti-doping is fundamentally an administrative or policing activity, what we can begin to contemplate here is the instrumental manner in which discipline or control is in fact internalised by way of an agreement. That is an agreed submission to be policed. In this respect the privatisation of the police constitutes a form of the publicisation of private life in a manner that finds its analogue in the privatisation of public life. Thus, in this context the privatisation of the police can be understood, as not only being constituted by the out-sourcing of, for example, policing activities to private security firms, but also as this process by which we consent, by way of a voluntary private agreement, to being surveilled by a transnational policing apparatus. In this situation it is our own individual consent that constitutes the privatisation of the police.
This brings us to the second factor by which Hanstad and Loland’s distinguish Whereabouts from the Panopticon. Their argument was based upon the fact that the surveillee actively participates in the process of their own surveillance by providing the necessary information which allows them to be observed. It is the corollary of the first, contractual based, voluntary proposition dealt with immediately above. To argue that a system is not disciplinary because individuals actively participate in a subtle process of surveillance and normalisation appears to miss the point of the Panopticon paradigm as a whole. Rather than being the paradox referred to by Hanstad and Loland above, the effect of the Panopticon is “far more subtle, disciplining and “normalizing” processes” – a “body is docile that may be subjected, used, transformed and improved” (Foucault 1991:136). The docility and normalising process can only be magnified when discipline and control is internalised and when it becomes a part of a project undertaken by the athletes themselves. Within the Panopticon of Whereabouts, the athletes are “caught up in a power situation of which they themselves are the bearers” (Foucault 1991:201).
Without the athlete participating in the system the body is not normalised which is the point of the whole operation – knowing that one is under surveillance is a key to its operation and one participates actively in this normalisation. The “pain in the arse” (Hardie, Shilbury, Bozzi and Ware 2012:94) of continually providing and updating information to the computerised ADAMS system, is one of the mechanisms by which the desired disciplinary effect is achieved. This, combined with the inability to know when the anti-doping controllers may arrive at one’s door, to undertake either a blood or urine test, manifestly reinforces the disciplinary effect. The athlete must always be on guard, to ensure that their Whereabouts is reported fully and without any fault or mistake, always ready, at any time, for the tap on the shoulder or the knock on the door:
“He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles: he becomes the principle of his own subjection. By this very fact … the more constant, profound and permanent are the effects …” (Foucault 1991:202-203)
Hanstad and Loland’s third proposition, again a consequence of the first two, is that Whereabouts is not the Panopticon because the athlete knows that they are being watched. As can already be seen the fact that surveillance is not covert severely misreads Foucault’s paradigm. The point is not that surveillance is covert, but it is the relationship between visibility and invisibility that is crucial. The observed in the Panopticon is fully aware that they are being observed – there is no covertness at play. The architecture of the paradigm is such that the observed is always actually or potentially visible to the observer. This visibility is the very trap of the Panopticon: “the mechanism arranged spatial unities that make it possible to see constantly and to recognize immediately” (Foucault 1991:200).
What then is the immediate purpose that is served by the Whereabouts System other than the ability to constantly see and recognise where an athlete is at a given time in order to undertake an anti-doping control. The athlete’s daily activities, breakfast, stretching, the gym, shopping, training on open roads, visiting friends, going to a restaurant or the movies, sleeping, all become visible by way of their reporting of their Whereabouts. The athlete does not see the controller until and when the controller wishes to be seen. But at the same time the athlete is always on the alert for the ever present possibility of this occurrence. Hence the cyclists complain that they provide a time when they are available to be seen, but the controller always seems to arrive at another time: “He is seen, but he does not see; he is the object of information, never a subject in communication” (Foucault 1991:200). The athlete in the system knows this, and they know that failure on their part to be visible brings with it severe consequences. The invisibility of the anti-doping controller is the guarantee of order (Foucault 1991:200). The fact that the system is not covert is in fact its very point. The major effect of the Panopticon is to induce “a state of conscious and permanent visibility that assures the automatic functioning of power … surveillance is permanent in its effects, even if it is discontinuous in its action”. It may well be that an athlete subject to Whereabouts is hardly ever, or even never, tested as a result of their reporting their location, but it is this perfection of power that actually achieves and renders testing unnecessary in many cases. This perfection is brought about not by the system being covert, but by it being visible, by the athlete’s active participation and by the time and place of the arrival of the controller being unverifiable … never knowing when, but always knowing it is possible (Foucault 1991:201).
It should be now apparent that the propositions put forward by Hanstad and Loland cannot be supported by a reading of Foucault’s original text. Equally, their fourth proposition, the consequences of any violation are known and open is similarly unsupportable on this basis. The inmates of the prison, the pupils of the school, the workers in the factory, all were more than aware of the punishments that might follow from their disobedience to the necessities of power. If openness is a criterion with which to distinguish the Whereabouts System from the Panopticon the authors have forgotten that one great feature of the disciplinary mechanism is its ‘democratic’ nature, its openness constantly accessible “to the great tribunal committee of the world” (Foucault 1991:207). It was this great tribunal of the Spectacle and not the application of the law that convicted Michael Rasmussen.
The Panopticon as Paradigm
Another leading liberal anti-doping scholar, Verner Møller, has also discussed the relevance of the Panopticon to the Whereabouts System. Møller’s principal objection to the application of the Panopticon paradigm to the Whereabouts System is framed initially as a response to Hanstad and Loland’s article discussed above. In an attempt to distance himself from them he deals with what he calls the “Foucault cul de sac” (Møller 2011a:183) and in turn offers Orwell as a better theorist of the problem. Both of these arguments are problematic. Firstly, his reading of Foucault, albeit for different reasons from Hanstad and Loland, appears to be equally flawed. Whilst the Norwegians appeared to have set out to bolster the Whereabouts system, Møller clearly wants to demolish it. In doing so he takes issue with their reading of Foucault but on the way he unfortunately also seems to miss the point. If he had approached Foucault with a more sympathetic or open mind Møller could have demolished the Norwegian analysis with much greater vigour. Secondly, his favouring of Orwell, whilst interesting in that he foregoes his desired scientific reason to privilege literature, raises the question of resistance to power, only to champion a vague and ill-defined concept of human nature (Møller 2011a:178-179). It is not Møller’s use of Orwell but his misuse of Foucault that is relevant here.
Møller does not fall into the error of arguing that the mere fact of participating in and having knowledge of surveillance distinguishes Whereabouts from the Panopticon. Møller accepts Foucault’s proposition that inmates in the jail are objects of information and that they feel under constant surveillance, without having the least idea as to whether in reality they are or not, and that it is this that causes the system to become a system of self-surveillance (Møller 2011a:183). Thus the criticisms I have made of the second and third of Hanstad and Loland’s propositions do not apply to Møller. Nevertheless, he goes on to state that Foucault’s idea is thought provoking but that his “analysis does not match up to the impact it has had” (Møller 2011a:183). The error in the use of Foucault according to Møller stems from the misapplication of Foucault’s paradigm outside of the realm of the prison:
“Many people today make use of Foucault without considering the range of his analysis. It might, therefore, be appropriate to remind ourselves that Foucault was focusing on inmates. He is primarily concerned with those who are locked up in prisons. It is true that he also mentions the sick, the mentally ill, workers and school children, but here, too, his point of departure is internment …” (Møller 2011a:183).
Hence, our first point of contention with Møller must be his narrowing of the Panopticon to merely apply to inmates in prisons or cases of internment. It is by virtue of this claim that Møller is able to go on and dismiss the relevance of Foucault. But in doing so Møller commits the error he seeks to lay at the door of others – he doesn’t consider the range of Foucault’s analysis. It may be correct to point out that Foucault’s point of departure was the prison, but this of course was not the end of his journey, or the range of his analysis. This is more than clear from a reading of the Panopticon text itself, of course it would be even further illuminated if we were to proceed to consider the whole of Foucault’s trajectory. From this claim Møller then goes on to argue that the Panopticon does not have the normalising effects that Foucault suggested, it will be seen that this second claim stems from the error contained in the first claim.
What is apparent from any fair reading of Foucault and from the plain text of his chapter in Discipline and Punishment entitled “Panopticism” is that what he is proposing is a model of power, a paradigm of power, “a generalizable model of functioning” (Foucault 1991:205) that “was destined to spread throughout the social body” (Foucault 1991:207). Immediately before the paragraph that Møller cites as proving that Foucault was only concerned with prisons the Panopticon is described as a “marvelous machine” which may be put to “whatever use one may wish to put it to” (Foucault 1991:202):
“… the Panopticon must not be understood as a dream building: it is a diagram of a mechanism of power reduced to its ideal form; its functioning, abstracted from any obstacle, resistance or friction, must be represented a pure architectural and optical system: it is in fact a figure of political technology that may and must be be detached from any specific use .. It is polyvalent in its applications …” (Foucault 1991:205).
Agamben has directly addressed the idea that what Foucault proposes is not one concrete example confined to the range of the prison, but, a paradigm of power able to be applied in a variety of circumstances. This is plainly clear from the text of Foucault cited above. According to Agamben the Panopticon functions as a paradigm in the strict sense:
“it is a singular object that, standing equally for all others of the same class defines the intelligibility of the group of which it is a part and which, at the same time, it constitutes. Anyone who has read Discipline and Punishment knows not only how the Panopticon, situated as it is at the end of the section on discipline, performs a decisive strategic function for the understanding of the disciplinary modality of power, but also becomes something like the epistemological figure that, in defining the disciplinary universe of modernity, also marks the threshold over which it passes into the societies of control” (Agamben 2009:17).
What concerns us, and what is ultimately at stake with the Whereabouts System is as much the disciplinary modality but equally the manner in which it marks in combination with the Biological Passport, the threshold or passage from discipline to societies of control. The Panopticon is both a concrete, singular, historical phenomenon, and at the same time “Panopticism“: a model of functioning which can be generalised, which allows the definition and establishment of new sets in the relationship between power and the everyday life of man:
“To understand how a paradigm works, we first have to neutralize traditional philosophical oppositions such as universal and particular, general and individual, and even also form and content. The paradigm analogy is bipolar and not dichotomic, it is tensional and not oppositional. It produces a field of polar tensions which tend to form a zone of undecidability which neutralizes every rigid opposition. We don’t have here a dichotomy, meaning two zones or elements clearly separated and distinguished by a caesura, we have a field where two opposite tensions run” (Agamben 2002b).
Contrary to what Agamben refers to as the tensional nature of this analysis, Møller criticises Foucault and the success of his ideas such as that of discipline normalising and creating docile bodies on the basis that they rest “to a large extent on his tendency to take matters to extremes” (Møller 2011a:183). It is an interesting criticism to be kept in mind when we turn to the manner in which Møller analyses the problem. Møller adopts a position at the other end of the binary spectrum to Foucault (and for that matter Hanstad and Loland). If Foucault says that discipline has a normalising effect, Møller ‘disproves’ it by showing that the opposite exists, and if the opposite exists, thus Foucault’s claim is baseless. Taking things to the extreme, to the opposite binary position, avoids entering into the complexities of thought, and allows one to take refuge in the safety and comfort of their own personal or academic Chestnut Café. Just because people in jail might behave in a certain way as a result of surveillance, doesn’t mean people outside of jail will – for Møller this is proven by the fact that we still scratch our noses or crotch when under the gaze of close circuit cameras or even rob banks so equipped (Møller 2011a:183):
“… it will be natural for someone to test the power of the tower at some time. There might first be minor infringements of the existing order. If nothing happens, their audacity will increase just as when hungry birds test out a scarecrow.
For that same reason he [Foucault] needs to be read critically. If mankind were as capable of being moulded by a system as he describes, revolt and attempts to escape would be unthinkable once the architecture of the ‘house of certainty’ had been implemented” (Møller 2011a:183).
Later, referring to Orwell’s Møller accepts that the description of Big Brother:
“comes close to Foucault’s view that the experience of permanent surveillance makes those subjected to surveillance internalize it. But surveillance as extensive as that which Smith is subjected to ought, according to Foucault, to result in resignation and subjection. Orwell’s novel shows, however, that human beings respond in a different way. While it is true that they develop the ability to conform to given conditions in order to avoid punishment, the discomfort felt at the inhuman system stimulates resistance” (Møller 2011a:183).
Lest I mention the Chestnut Cafe again? But Møller knows too well the story of one who has tested the power of Whereabouts System, his work on Michael Rasmussen’s expulsion from the Tour de France for alleged violations of the system, rather than supporting the “if nothing happens” show precisely how attempts to test (to resist) the system are met (Møller 2011b). They have not increased the audacity to challenge the system but brought Rasmussen to the very edge of his existence, as both an athlete and a living being. The justice of the manner in which Rasmussen was dealt with is the very point – his sacrifice reinforced the system, its operation, its acceptance by others and thus the deployment of power. The making of the scapegoat of the one that tested the system reinforces, rather than undermines the system.
On another level, this statement by Møller also ignores the whole trajectory of Foucault’s work on power and in particular his later work on forms of resistance to power and the importance to Foucault of the power/knowledge relationship. It is not possible here to deal with this aspect in detail, nevertheless a reading of the original text can refute all the arguments of Møller, Hanstad and Loland. But again Møller takes the extreme binary position: because resistance may occur or be possible (despite the obvious consequences to Rasmussen and the effect on others of those consequences), the Panoptic model is of no value for our analysis. This claim, it is not an argument, is bolstered apparently by the proposition that it is because surveillance itself does not do away with power!
“It is not, however, the surveillance itself that exerts the discipline, but the power that lies behind it. The panopticon does not, in other words, make power redundant” (Møller 2011a:183).
As is apparent from the above discussion Foucault never argued that Panpoticism makes power redundant. Rather his position was that it is a mechanism, a technology for deploying and exercising power (Foucault 1991:206) That is the Panopticon paradigm operates not in order to do away with power but to deploy it in more economical ways. But for Møller it is not the deployment of power that modifies and normalises but our own enlightened rationality:
“It is true that the cameras have a preventive effect. For obvious reasons, criminals will gravitate to areas where the risks of being discovered are smallest. If one bank has an effective surveillance system and another has not, then the bank robber will, other things being equal, plan to rob the latter. This is rational behaviour that has nothing to do with the disciplinary mechanism of anonymous surveillance” (Møller 2011a:184).
If this is ”rational behavior” it is disingenuous to argue that the disciplinary system plays no part in it. This so called rational behaviour is the normalising effect of which Foucault speaks. But in any event the purpose of the disciplinary machine was never to be the universal panacea for crime. To argue that Panopticism does not end crime and is thus inapplicable to the situation again misreads the text. In their early forms disciplinary institutions were expected to end such dangers to society: “to neutralize dangers, to fix useless or disturbed populations, to avoid the inconveniences of over-large assemblies …” (Foucault 1991:210). Their focus and their deployment tended to play, not a negative role, but a positive role – to increase the possible utility of individuals, to fortify, to develop the body, “the disciplines function increasingly as techniques for making useful individuals. … Hence also their rooting in the most important, most central and most productive sectors of society”(Foucault 1991:210-211). For every dissenting Rasmussen a hundred normalised others are created.
Here is not the place to set out arguments as to the importance of sport as a productive sector of society, nevertheless, accepting that that case needs to be developed, the prevalence of mechanisms of surveillance, discipline and/or control within the anti-doping apparatus of sport is focused upon making the athletic body useful within the global Society of the Spectacle. It has both an economic and a governance function. In so doing, the effect of the disciplinary measure transcends the immediate effect upon one individual. At the point where disciplinary society and biopower converge both the individual and the population, generally, and here specifically the sporting population, are the subjects of these technologies. Rasmussen’s sacrifice may show that resistance or dissent exists, it and other cases (or for that mater the interviews in Hardie, Shilbury, Bozzi and Ware 2012) may show that not everybody buys fully with their heart and soul into the system, but what these instances also show is that overall there is an increasing acceptance and ‘improvement’ of the individual and the population. The docile athlete, like the docile soldier, is a useful athlete. It is in this way, the Panopticon of Whereabouts plays a role of amplification – it arranges power, it makes power more economic and effective (to the point that in some cases their application are rarely or never needed). In so doing it strengthens the social forces involved in sport – increasing the production of the myth of fair competition on a level playing field, developing the virtue of the pure athlete, the economy and education. Neither power nor crime is made redundant, its aim is to “raise the level of public morality; to increase and multiply” (Foucault 1991:207-208).
On any fair reading of Foucault’s text it is clear then that the Whereabouts system fulfils the triple objective of the Panopticon. Firstly, the cost/benefit objective – to obtain the exercise of power at the lowest possible cost. Secondly, that of intensification and expansion – allowing the effects of power to obtain their maximum intensity and extension. Finally, the productive objective – of linking the techniques to economic growth (Foucault 1991:218). But, most importantly, it organises and fixes a population in the place that is necessary for it to be controlled – it is a centre of observation disseminated throughout the society in question (Foucault 1991:212), it is an anti-nomadic technique (Foucault 1991:218) deployed against the nomadic athlete. The docility it contemplates is the consent of the useful; those that do not consent are no longer regarded as such, and are thus dispensable, expendable.
It is hoped that this examination of Foucault’s text goes some way to showing that the paradigm of the Panopticon is a useful tool for the critical analysis of the Whereabouts System. However, in order to properly locate the mechanism of Whereabouts within apparatus of global governance it is necessary both consider it along with the Biological Passport and consider the manner in which Foucault and others have built upon and extended the Panopticon paradigm. For if Møller is correct about one thing, the Panopticon is not the be all and end all of the story.
Whatever the limitations of Møller’s analysis of Whereabouts what it does reveal is that a mechanical application of Foucault’s primary text on the Panopticon does not give us the complete picture of the paradigm as it currently stands. Deleuze referred to the administration and management of life and extended Foucault’s paradigm to include that of a control society (Deleuze 1992). Oikonomia according to Agamben included “the ordered organization of the human body” (Agamben 2011:29), and “oikonomia does not merely concern the management of the house, but the soul itself” (Agamben 2011:47). Hardt and Negri (1999 & 2009) and others, such as Lazzaratto (2004), refer to the manner in which worlds, lifestyles, and forms of life, are produced and governed in a global economy. Dicey referred to administrative law’s concern with the care of social interests Dicey 1920:328-9), or Neocleous as the regulation of the internal life of the community, the regimenting of social life, or the management and direction of the population (Neocleous 2000:93). All of these concepts point in one way or another to the Panopticon paradigm’s extension and crossing of the threshold to a world of governance by way of biopower. They are all in one way or another relevant to any contemporary application of the Panopticon paradigm. I don’t want to dwell on the detail of these concepts, nor an in depth analysis of what they have in common or what differentiates them, but a cursory examination points to their relationship to the Panopticon and their relevance to the Whereabouts System.
Michel Foucault dubbed the involvement of state power into the health and wellbeing of the population, ‘biopower’. Biopower is one of the concepts by which Foucault extended the range of his Panopticon paradigm. His aim in part was by relating it to other forms of governance to show the manner in which these different forms coexisted with each other in different mixtures and concentrations at any given juncture. He did not try to place a wall between law and discipline, or any of these other concepts in order to essentialise them, just as one cannot attempt to place a wall between his development of the concept of biopower, for example, and his work on the disciplines.
Biopower, for Foucault, was the situation where life becomes the object of power and in which what is at stake in power is the production and reproduction of life itself. Having conceived of biopower as having come into prominence during the nineteenth century (a position which Agamben has sought to refine with his work on for example Homo Sacer and oikonomia) Foucault identified two interrelated strands – the development of specific technologies of the body and the politicising of the body as a reproductive force (Andrews 1993:157-158). The shift to biopower signalled a transition in the nature of sovereignty from its classical form – where one of the basic attributes of the sovereign was the power over the life and death of his subjects (the right of the sword); towards a new form in the nineteenth century whereby power became the right to let live and to let die. This shift saw the emergence of techniques of power that were essentially centred on the body. These emerging techniques included techniques to take control of the body or bodies, and to increase their productive force. Jason Reid expands Foucault’s observation that biopower was an indispensable element in the development of capitalism in the manner that it required the controlled insertion of bodies into the machinery of production and the population’s adjustment to the processes of the economy:
“What is essential for Foucault is the manner in which the investment of the State into the life and death of the population, the environmental conditions of the cities, and the health and longevity of the working class in each case is a properly political relation forming a biopolitics. In each instance the goals of the intervention are political: Biopolitics functions to increase productivity while at the same time reducing the conditions and causes for revolt. Thus, it is more accurate to say that biopolitics works for both economic and political goals, or better, it is constituted at the point at which political power becomes inseparable from economic power” (Reid 2003:141).
In its emergent forms in the eighteenth and nineteenth centuries the techniques of biopower involve emergent fields and concepts such as the work of early demographers, the concept of public health, the medicalisation of society, insurance, risk management and the control of the human milieu and environment brought together in a economically rational way. This is the whole project of the taming of chance (Hacking 1990). Biopower initially determines its field of intervention in this period in terms of birth rates, morbidity, various biological disabilities and the effects of the environment. What is important or different from what came before is that intervention at the population level.
Biopower focuses upon the population as a “political problem … that is at once scientific and political, as a biological problem and as power’s problem”. The control of life is a task and a technique of the administration and management of collective phenomena with economic and political effects that have become pertinent at a mass level” (Foucault 2008:245-247). The techniques of forecasting, of statistical estimates and overall measures differ from the technique of discipline as they seek to intervene at the level of generality. They appear as regulatory mechanisms that seek to maintain a balance and compensate for variations within the population. They also, as part of this tendency to intervention, require security mechanisms designed to maximise and extract forces from the population. In a manner different to discipline, they no longer train the individual at the level of the individual body, but take control of life and the biological processes of man-as-species and of ensuring that they are not necessarily disciplined but regularised (Foucault 2008:245-247).
In the case of the Whereabouts System we can say that it operates at both the level of the individual body but at the same time it operates at the level of the entire population of athletes. This is what Møller fails to recognise in his critique of Foucault’s so called cul de sac – the manner in which the System produces a regularisation or normalisation of the professional cycling population, even though at the same time it might produce instances of resistance or dissent. No matter that some may try to beat the system, the overall effect, at a population level, is one of compliance, docility and as such an increase in their productive force.
Biopower’s regulatory controls encompass a vast array of collective measures undertaken to regulate the population. The disciplines constitute their own concrete form of domination and means of integration to the social order. Disciplines are, in effect, techniques of power that provide procedures for training and for coercing bodies. In this way we can consider the emerging nineteenth century science of physical education as both a disciplinary and as a biopolitical technique. Physical education provides a set of teaching methods, principles, and conditions through which a desired set of (individual) bodily practices are inculcated. At the same time the overall effect of physical education and its promotion acts at a population level. Thus it operates at the interstices between individual (disciplinary) and collective (biopolitical or administrative) controls of the body and serve both sets of interest. Thus it should be of no surprise that Foucault regarded “medical science as the crucial link at the level of knowledge between the discipline of the individual bodies by professional groups and the regulation of populations by panopticism” (Turner 1984:33-35). In the case of sport and physical activity, the profession of physical education, human movement and later sports science and marketing themselves accomplish the function of knowledge generation.
Thus discipline and regularisation are not mutually exclusive, the latter does not replace the former, but the two are superimposed upon each other with one technology focussing upon the body, the other upon life itself. The two can be and are articulated with each other – as Deleuze might say there are no pure machines … all machines exists and coexist at any given time. In his work Foucault gives the examples of housing estates for workers and the question of sexuality to illustrate this articulation. It is the example of sexuality that gives us something close to what is at issue in sport – or at least that which provides us with a starting point to consider the manner in which sport becomes an object of power, of science, medicine and the State. Foucault asks: why did sexuality become a field of such vital strategic importance in the nineteenth century? We could similarly ask why has the sporting body and the problematisation of doping become of such strategic importance in the twenty-first century? Foucault’s answer to his own question includes a whole host of reasons, and it is here that we can see, or at least begin to develop, the parallels between the sexual body and the sporting body. In the nineteenth century we are told sexuality as an “eminently corporeal mode of behaviour, is a matter for individualizing disciplinary controls that take the form of permanent surveillance”. Sexuality also, quite obviously, has procreative effects – it is “inscribed, takes effect, in broad biological processes that concern not the bodies of individuals but the element, the multiple unity of the population. Sexuality exists at the point where body and population meet. And so it is a matter for discipline, but also a matter for regularization”. (Foucault 2008:249-252)
It is within this context that biopower’s links with scientific knowledge begin to contribute to the tendency towards the medicalisation of society. Stepping back from Foucault for a moment we see a similar situation emerging in the nineteenth century in relation to sport and in relation to its medicalisation. Hoberman’s accounts of the history of doping – of the systematic production of “mortal engines” (Hoberman 1992); can be read as a part of the chronicle of biopower taking the sporting body and in turn the entire population as its object. Whether the object of the production of mortal engines was for sporting, or for other wider purposes, what is clear is that the new sciences of modernity – physiology, anatomy, economy etc; all used the sporting body to one degree or another as a testing laboratory for knowledge pertinent to the broader population. More recently the French sociologist Christophe Brissoneau (2010) has considered the confluence of the American system of management and doping developed in the late twentieth century with the Soviet Bloc’s methods of sports training and preparation (including doping) which form the basis of contemporary sports science and management. He has highlighted the manner in which the coming together of these two models was adopted by sports physicians in the West as the basis of a new method of managing and preparing the athlete. Importantly, in Brissoneau’s analysis, these techniques did not stand alone in the world of sport, but are inextricably linked to questions of productivity and endurance in other sectors of production – including for example the economy, industry, the military and space exploration. Hence it should be of no real surprise for us when we discover that the origins of what we now call blood doping, the very techniques which the Biological Passport (see below) was designed to tackle, have their roots in the experimentation by the U.S. Military on dogs in the 1970′s (Horstman 1974 & 1976). Similarly, as Agamben recalls in Remnants of Auschwitz, the experimentation by SS doctors on the Muselmann, which in itself suggests the link between the military and experimentation with endurance as having equally sinister roots:
“It was December, 1940 …. After a few minutes, we were all shivering from the cold; they made us run around the room to heat ourselves up, until we we were all covered in sweat. Then they said, “Sit Down”, and we did as they said. Once our bodies had cooled down, and we were once again cold, it was time for more running – and so it lasted for the whole day”. (Agamben 2002a:170)
Biopower is one manner in which Foucault asked himself the question concerning the trajectory of disciplinary societies and the development of complementary mechanisms or apparatus. In his Postscript on Societies of Control Deleuze identified himself as continuing Foucault’s brilliant analysis of the use of enclosures to compose productive forces. Deleuze highlighted Foucault’s recognition of “the transience of this model” and that “in their turn the disciplines underwent a crisis to the benefit of new forces”. Deleuze adopted “Control”, the name proposed by Burroughs “as a term for the new monster, one that Foucault recognizes as our immediate future”. Citing Virilio, Deleuze noted that ultrarapid forms of free-floating control had replaced the old disciplines (Deleuze 1992:3-4).
In another work Deleuze wrote:
“A control is not a discipline. In making highways, for example, you don’t enclose people but instead multiply the means of control. I am not saying that this is the highway’s exclusive purpose, but that people can drive infinitely and ‘freely’ without being confined yet while still being perfectly controlled. This is our future” (Deleuze, 1998, p. 18).
This is our future, to be able to move freely whilst still being perfectly controlled. Controlled in one sense denotes having to pass through gates or follow certain paths. Referring to an imagined city of
Felix Guattari, Deleuze stated that in control societies “what counts is not the barrier but the computer that tracks each person’s position – licit or illicit – and effects a universal modulation (Deleuze 1992:7). A control tends to pilot behaviour. A control is both a method of individual discipline but a normalising and regulatory instrument. A control is also the word used to describe the process by which athletes are tested within the anti-doping apparatus – athletes must pass anti-doping controls. Anti-doping controls form the basis of the Biological Passport. At the same time being subjected to the Whereabouts System controls the fluid and nomadic population of the professional cycling peloton. The peloton and its members are essentially free to move about, to train and race and to live their lives subject to the piloting and control of the anti-doping apparatus.
The Whereabouts System does not stand alone but is integrated into another instrument: the Biological Passport; which extends the scope and purpose of anti-doping controls. The Biological Passport is by its very nature technical and scientific and its method of surveillance and monitoring are probably more far reaching than that of the Whereabouts System. Rather than just monitoring where a particular body is at a given time, the Passport seeks to actually enter the body and measure processes occurring within them. Importantly by its very nature it also challenges traditional concepts of legal proof. Just as the disciplines depended upon and modified the operation of sovereignty and the law, the Biological Passport adapts and modifies both the nature of Panopticonism and the law. By going back to Deleuze we can begin to grasp the manner in which the Biological Passport manifests the crisis of law itself:
The apparent acquittal of the disciplinary societies (between two incarcerations); and the limitless postponements of the societies of control (in continuous variation) are two very different modes of juridicial life, and if our law is hesitant, itself in crisis, it’s because we are leaving one in order to enter the other. The disciplinary societies have two poles: the signature that designates the individual, and the number or administrative numeration that indicates his or her position within a mass. This is because the disciplines never saw any incompatibility between these two, and because at the same time power individualizes and masses together, that is, constitutes those over whom it exercises power into a body and molds the individuality of each member of that body. … In the societies of control, on the other hand, what is important is no longer either a signature or a number, but a code: the code is a password, while on the other hand disciplinary societies are regulated by watchwords (as much from the point of view of integration as from that of resistance). The numerical language of control is made of codes that mark access to information, or reject it. (Deleuze 1992:5)
As we have noted above the rationale for such an extensive surveillance regime as the Whereabouts System is to plan and conduct out-of-competition testing. The results obtained from out-of-competition testing have, in turn, provided the basis for what is known formally as the Athlete’s Biological Passport. The Passport has been heralded by the UCI as a major breakthrough and the avant-garde of anti-doping policy (UCI:2007). The Panoptic nature of the Whereabouts System should not be considered in isolation as the full picture is not drawn without reference to the Biological Passport. According to the UCI, the Biological Passport is a new tool which will allow better detection of the cheats (UCI:2007). Although the two instruments are different they stand or fall together. The UCI has stated that the provision of accurate and timely Whereabouts information is critical to the success of the Biological Passport (UCI, 2007); Whereabouts information is used to plan out-of-competition testing which serves to collect data for the Biological Passport. One function of the Biological Passport is to allow those planning the testing to better target those they suspect of doping. As one interviewee with experience in developing the Passport has stated:
… the other thing is, if they see abnormal blood results and it’s not abnormal enough that they think they can sanction or even take further steps, at least they can really be on top of them. They can test the hell out of them, they can scare them – they can scare them into awareness or into action or be, you know, make their teams aware and they will be caught, that’s the thing. Sooner or later, if that conscience is not there and they’re not aware of what they’re doing, they won’t get away with it forever. We’ve seen riders like that in the last couple of years (Hardie, Shilbury, Bozzi and Ware 2012:115).
It is of vital importance to emphasise that the Biological Passport is not used to detect the presence or absence of a Prohibited Substance or a Prohibited Method. Rather, it is used to detect the effects associated with the Prohibited Substance or Method on the human body. The logic of the approach is that if effects associated with a Prohibited Method are observable in a tested person, then perhaps that person might have been using the Prohibited Method. Equally, it must be stressed therefore that the Biological Passport only points to a probability that a person might have been using the method. It is only a tool for the indirect detection of a Prohibited Method, as no banned substance is revealed nor is any direct evidence of the use of a Prohibited Method revealed. All the science seeks and is able to compare are the parameters of a test sample, with previous samples, in order to identify any ‘abnormal’ fluctuations in an athlete’s blood values. These ‘abnormalities’ may in turn indicate a probability that a person may have been using the Method. The science and the Passport cannot say with any absolute certainty what caused the ‘abnormality’. The matter of these abnormalities is not a question of strict liability as with a positive doping test result, but the use and the privileging of one piece of indirect circumstantial evidence consisting of an interpretive opinion challenges traditional notions of legal proof.
The Biological Passport is an individual, electronic record maintained for each athlete, in which the results of all doping tests over a period of time are collated in the ADAMS system. The results are analysed using the Athlete’s Biological Passport Software (ABP Software), developed by the Swiss Laboratory for Doping Analyses. The ABP Software produces a quantitative stream of data that is, in turn, used by the UCI Biological Passport Expert Panel to determine the likelihood of doping. The Biological Passport contains results of individual urine tests, results of individual blood tests, a haematological profile consisting of the combined results of haematological parameters analysed in a series of blood samples, and a steroid profile consisting of the combined results of steroid levels in a series of urine samples. The Biological Passport allows a series of tests from each rider to be organised into a profile which enables individual limits for each rider to be established. Rather than a comparison with a population limit, it allows each test sample to be compared with the rider’s own individual ‘normal’ haematological levels.
The UCI states that any significant variations can then be assessed for possible blood manipulation and argues that a haematological profile created by the Biological Passport “opens new doors in the detection of riders who choose to manipulate their blood”. Importantly the UCI regard the Biological Passport as applying “similar principles to those used in forensic medical science to determine the likelihood of guilt” (UCI, 2007a). The veracity of this claim was questioned by Hardie et al (Hardie, Shilbury, Bozzi and Ware 2012:120ff) and is important as it points to the manner in which the law is transformed by the use of the Passport. Nevertheless, the procedure adopted is that once:
“sufficient evidence is gathered which determines guilt at an agreed level of certainty, scientific experts will recommend that the UCI open disciplinary proceedings for an anti-doping rule violation. It is expected that a profile of six tests will enable the detection of blood manipulation. In some cases, a fewer number of tests may be needed to detect doping” (Hardie, Shilbury, Bozzi and Ware 2012:116).
The penalty proscribed for such a violation is a ban from competition for two years. The accuracy of an inference that a person has used a prohibited substance and the role of the scientific experts in giving evidence before any disciplinary committee become crucial steps in the process of proof. Again it must be stressed that the Biological Passport is only an isolated piece of material evidence, namely a piece of processed instrumental data and that, ultimately, an allegation of doping or manipulation is based only on this indirect and circumstantial evidence (measured blood parameters) as opposed to direct expert evidence (detection of a prohibited substance in a blood or urine sample – which is at law only itself a form of circumstantial evidence). Any opinion in interpreting the instrumental data is, by necessity, heavily reliant on statistics (Faber and Vandeginste 2010; Sottas, 2010). Again, these issues were canvassed by Hardie et al (Hardie, Shilbury, Bozzi and Ware 2012:138 ff).
Trust the Science
The result is that prior to any hearing, the science and expert commentary is determinative at two points – when the ABP Software analysis is undertaken and when the Expert Panel conducts its review of the Biological Passport data. At the point at which the UCI may have a discretion to open a case (following the receipt of the Panel’s opinion) the science would also seem to effectively determine the issue. In its promotion of the Passport the UCI made public statements to the effect that the national cycling federations have to trust the science provided by the Expert Panel. Traditionally, the law requires scientific evidence to be of a certain standard and requires it to be presented in a certain manner in order to safeguard the fairness of any hearing process. Thus, in judicial processes scientific evidence should be communicated in such a manner as to allow the ultimate decision-maker to be able to weigh it against all the other evidence, including other scientific evidence that goes to its reliability. On the other hand, the UCI have insisted on the need for national cycling federations to trust the science that lay behind the Biological Passport. The role of the expert in interpreting data produced by the ABP Software and the Biological Passport itself can be readily contrasted with that insisted upon by judicial processes:
“Our rules advise them [the federations] to follow a number of steps. Obviously, these will be new and difficult cases for them and we’ve offered them any assistance the want. They also have access to our scientific experts and data. What we’re expecting them to understand is that we have the best experts in the world and that they’ve reviewed the data properly. The federations have to trust the review that has been conducted by our experts. Normally, we give them a piece of paper from the lab that says, we’ve found EPO or Nandralone, but instead we’re giving them a statement signed by three experts with data and rider profiles. We expect them to trust us” (Cyclingnews, 2009).
The Biological Passport does not involve a positive test for a banned substance. The national federations (or NADOs or ultimately the CAS), who in the end must make a decision in respect of any finding of the UCI, are asked to trust the science as proof of doping.
… you can’t expect the National Federation to be able to unravel what led to that decision. It’s not as simple as – well, that value’s that, that’s there and this here, therefore that’s doping. You can’t easily reverse engineer how you got to that decision. So, in that sense you’ve got to trust that we’ve been through this process, that was our decision, but if you’ve got another argument, you get an opportunity to challenge our opinion. (Hardie, Shilbury, Bozzi and Ware 2012:120)
Thus given the nature of the data, the science and the expert commentary, the decision to make visible the alleged act of doping, is an expert’s opinion incapable of being communicated in a way that can be unravelled by reverse engineering. Notwithstanding, the way it is expressed, the decision of the Expert Panel is no more than an opinion, and an opinion as to likelihood of doping, but, nevertheless, at this point in the process, it takes on a decisive character.
The Expert Panel’s recommendation is couched in terms of the likelihood that the cyclist in question has doped – that is as a determination “as to the likelihood of guilt”. The opinion of the Expert Panel states that there is no reasonable explanation of the blood profile other than the use of a Prohibited Method. It may be given, based on the preliminary nature of the opinion at this stage, that there is not a problem with statements “as to the likelihood of guilt” by the Expert Panel. Statements phrased in terms of the “likelihood of guilt” are not consistent with the principles to those “used in forensic medical science to determine the likelihood of guilt” (UCI, 2007). Forensic medical science in traditional legal processes does not determine “the likelihood of guilt”. Evidence based upon forensic science in judicial proceedings must be set out in a particular way so as to guard against the expert’s opinion usurping the role of the decision-maker. It must comply with the rules of evidence. The Biological Passport cases decided by the CAS have sought to rely upon Article 3.2 of the WADC (Methods of Establishing Facts and Presumptions) that states “[f]acts related to anti-doping rule violations may be established by any reliable means”. The explanatory note to that Article states that, for example, a NADO may establish an anti-doping rule violation based on “conclusions drawn from the profile of a series of the Athlete’s blood or urine Samples”. Similarly, the comments to Article 2.2 state that:
“[i]t has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means” and continue that these include conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence”of a Prohibited Substance under Article 2.1”.
The WADC appears to studiously not refer or use the word ‘evidence’ in its provisions on the proof of doping. However, both the claims of the UCI and Dr Sottas point to a comparison with the traditional methods of proving facts by the use of forensic or scientific evidence. The problem with the reasoning of the CAS in these cases is that the reference to “any reliable means” appears to widen the scope of the method of proof beyond that which would be required for that means to constitute evidence in the legal or judicial sense. If one trusts the science and ignores traditional methods of proving facts by forensic science the phrase “any reliable means” appears to be able to roam at large.
The point here is that the reception of scientific evidence and, in particular, evidence which interprets data based upon the types of statistical evidence, such as that which underpins the Biological Passport, has been strictly controlled by the courts in order to ensure that any legal process is conducted fairly and without prejudice to the accused. The courts are also vigilant to ensure that the expert does not usurp their position as the decision maker. From an examination of the law it is apparent that if the opinion of the expert in a Biological Passport case is phrased in terms of the “likelihood of guilt” then it is not used in accordance with the principles applied to the reception of forensic medical science by courts. In fact, the manner in which evidence of the Passport is presented is in contradiction to those principles. If this is the case, the opinion of the expert would be inadmissible as reliable evidence (see for example Redmayne, 1996). Its basis as a reliable means of proof in the context of a court must therefore be questioned. Redmayne clearly states the distinction between the permissible and impermissible manner of giving expert opinion:
“The expert’s error lay in confusing two different questions, namely: (1) What is the probability of finding the evidence, given that the defendant is innocent? (2) What is the probability that the defendant is innocent, given the evidence? The difference between the two questions may not be immediately obvious, but it should become clear when two different questions which have the same logical structure are considered: (1) What is the probability that an animal has four legs, given that it is a cow? (2) What is the probability that an animal is a cow, given that it has four legs?’”
The difference between the two ways of framing the evidence of the expert’s opinion can be seen if we frame the statements in terms relevant to the Biological Passport:
1) What is the probability of the abnormal blood value given the athlete has been at altitude?
2) What is the probability that the athlete is innocent (of an ADRV) given the abnormal blood values?
3) What is the probability of the abnormal blood value given the athlete has blood doped?
4) What is the probability that the athlete has blood doped (and is guilty of an ADRV) given the abnormal blood values?
Statements 1) and 3) would be permissible as evidence, whereas statements 2) and 4) would not be permissible. The WADA Guidelines state the Expert Panel’s opinion in terms of their being high probability that the athlete blood doped given the blood values – that is, in the impermissible form similar to 2) and 4). The impermissible form is known as the Prosecutor’s Fallacy. In the Biological Passport process, the Prosecutor’s Fallacy is institutionalised at the point of the Expert Panel giving their ‘opinion’. The problem for the anti-doping apparatus is that it requires a method to make visible something that the law has been incapable of visualising. The functional purpose of the Biological Passport is exactly to overcome this problem. The result is that rather than a legal question decided according to legal standards of evidence, the proof of the determination of doping becomes an administrative and technical decision based upon scientific and statistical standards. The Biological Passport seeks to penetrate a space which the law cannot. It seeks to see what the law cannot see, or as Agamben has written in the world of biopower “the pysician and the scientist move into a no-mans land which at one point only the law and sovereignty could penetrate …“(Agamben 1998:159). The proof of doping is no longer a legal question but a scientific one in which the law can only blindly trust.
The Great Observer
Returning to the question of the Panopticon paradigm, Foucault was well alive to the coming of control societies. In noting that “The ‘Enlightenment’, which discovered the liberties, also invented the disciplines” (1991:222) Foucault asked:
“What Great Observer will produce the methodology of examination or the human sciences? ….The ideal point of penalty today would be an indefinite discipline: an interrogation without end, an investigation that would be extended without limit to a meticulous and ever more analytical observation, a judgement that would avoid at the same time be the constitution of a file that was never closed, the calculated leniency of a penalty that would be interlaced with the ruthless curiosity of an examination, a procedure that would be at the same time the permanent measure of a gap in relation to an inaccessible norm and the asymptotic movement that strives to meet in infinity. The public execution was the logical culmination of a procedure that was governed by the Inquisition. The practice of placing individuals under ‘observation’ is a natural extension of a justice imbued with disciplinary methods and examination procedures. Is it surprising that the cellular prison, with its regular chronologies, forced labour, its authorities of surveillance and registration, its experts in normality, who continue and multiply the functions of the judge, should have become the modern instrument of penalty?” (Foucault 1991:227-228)
In constructing this new alliance between doping and the law and in opening up a new manner in which the invisible can be visualised many of these features of this Foucauldian (or Kafkaesque) Great Observer to come are present. The Whereabouts and Biological Passports operate as indefinite disciplines and as interrogations without end. They operate and extend without limit a meticulous and ever more analytical observation of the daily aspect of life and the internal functioning of vital aspects of the body. They constitute through the ruthless curiosity of an examination a file that is never closed and that seeks to close a gap between the unprovable and invisible (at law) act of doping – they operate between the invisible act and the inaccessible norm. They are the natural extension of the disciplines manifested by the practice of placing individuals under permanent observation.
In such a procedure and increasingly in a society of biopolitical control based upon an accounting of the body and bodies – the administration of bodies using techniques such as continual monitoring and surveillance, the internalisation of control and an instrumental or functional rationality; the old law’s techniques of deciding disputes after the event of their occurrence are replaced. Moving away from Foucault, Bauman’s analysis of the Holocaust’s rational administrative machinery exposes the connection between the bureaucracy, the task of administration and that of biopolitical control:
“Bureaucracy started from what bureaucracies start with: the formulation of a precise definition of the object, the registering those who fitted the definition and opening a file for each. It proceeded to segregate those in the files from the rest of the population, to which the received brief did not apply. Finally, it moved to evicting the segregated category from the land of the Aryans which was to be cleansed ….” (Bauman 1989:105).
Bauman’s description of bureaucracy can be readily mapped onto the outline of the anti-doping apparatus set out above. The elements of this apparatus are consistent with the elements described by Bauman. But in this case they are distributed throughout a network on a global scale.
Consistently with Bauman we have present a precise definition of the object of the ideology: to cleanse sport of the doper who is a threat to the ethical order of the level competitive playing field of sport; the identification and location of the object: by way of the regime of in and out of competition urine and blood testing, including the Whereabouts and Biological Passport systems; the opening of a file for each object: ADAMS and the Athlete’s Biological Passport; the segregating of those in the files: the sorting of results by the ABP Software and then by the Biological Passport Expert Panels; and, the evicting of the segregated categories: by way of anti-doping rule violation cases decided by disciplinary arbitration, bans imposed or by the spectacle of moral/media/institutional/public condemnation.
In successfully carrying out these five steps, the three manifestations (and perpetrators) of Bauman’s description of instrumental rationality are also present and all work in tandem: the machine (The Whereabouts System, ADAMS, blood and urine sampling and analysis, ABP Software, and the Biological Passport itself); the professional (sports officials, accountants, the information technologists, statisticians, blood and physiological scientists, psychologists, academics, anti-doping lawyers); and the bureaucracy (the National Governments, NADOs, The International Olympic Committee, national and international sporting organisations, corporate and state sponsors, WADA and the CAS).
What we are faced with is a very different machine to that of the boundary retained, backward looking, dispute resolving system of the old law of the State system. In this world of biopolitical governance, as described above by Foucault, and just like in Kafka or Lewis Carroll, everyone is potentially guilty. The system demands, that, rather than waiting for an offence to occur and become visible, the anti-doping apparatus must actively search out abnormal bodies. The administrative machinery extends globally to all places and all times. The system demands that in situations where the processes of the law cannot see, that the expert and their commentary visualise the invisible. Thus process constitutes the invisible as visible and in turn decides which of these bodies are not worthy of remaining within the system, and therefore must be segregated.
This space of surveillance not only locates and makes visible the physical location of each individual cyclist it also in turn makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. The combination of the Whereabouts System and the Biological Passport in making the cyclist visible does not allow the cause of doping, or the event of doping to be known or observed, but rather it casts the body in terms of abnormalities whose cause cannot be identified with any certainty, but which suggest that doping may have occurred.
The ultimate effects are twofold. Firstly, an internalisation and continual monitoring of one’s self at a personal and at a population level, coupled with the monitoring by the authorities. Secondly, a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence through evidence are transformed.
The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through its discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. It is a redistribution of the way in which the law treats the symptoms and the signified act of doping.
Faced with the coming of this apparatus of control, one must ask: “Is this our future as well?”
Agamben, G. 1998. Homo Sacer, Sovereign Power and Bare Life. Stanford University Press, Stanford.
Agamben, G. 2002a. Remnants of Auschwitz, The Witness and the Archive. Zone Books, New York.
Agamben, G. 2002b. What is a Paradigm? Lecture at European Graduate School. August 2002. http://www.egs.edu/faculty/giorgio-agamben/articles/what-is-a-paradigm/ Accessed 31 December 2012.
Agamben, G. 2011. The Kingdom and the Glory, For a Theological Genealogy of Economy and Government. Stanford University Press, Stanford.
Andrews, D. 1993. Desperately Seeking Michel: Foucault’s Genealogy, the Body, and Critical Sport Sociology. Sociology of Sport Journal, Vol. 10 No. 2 pp. 148.
Bauman, Z. 1989. Modernity and the Holocaust. Cornell University Press, Ithaca, NewYork
Berman, P. 2005. From International Law to Law and Globalization. Columbia Journal of Transnational Law, Vol. 43, p. 485.
Boardley, I. D. and Kavussanu, M. 2008. The moral disengagement in sport scale-short. Journal of Sports Sciences 26: 14, 1507-1517.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Brissoneau, C., 2010 Doping In France (1960-2000): American And Eastern Bloc Influences, Journal Of Physical Education & Sport; Vol. 27 Issue 2, P33.
Coleman J.E., & Levine J.M. 2011. The burden of proof in endongenous substance cases: a masking agent for junkscience. In McNamee, M. And Møller, V (eds) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives, Abingdon: Routledge.
Cyclingnews 2009. Benson, D. Exclusive: Anne Gripper breaks silence on blood passport, Cyclingnews. http://www.cyclingnews.com/features/exclusive-anne-gripper-breaks-silence-on-blood-passport. Last Accessed 31 December 2012.
Debord, G. 1995. The Society of the Spectacle. Zone Books, New York.
Deleuze, Gilles. 1992. “Postscript on the Societies of Control”, OCTOBER 59, Winter 1992, MIT Press, Cambridge, MA, pp. 3-7.
Deleuze, Gilles. 1998. “Having An Idea In Cinema.” trans. Eleanor Kaufman. Deleuze and Guattari. In New Mappings in Politics, Philosophy and Culture. eds. E. Kaufman and K. J. Heller. Minneapolis: University of Minnesota Press.
Dicey, A.V. 1920. Introduction to the study of the Law of the Constitution. MacMillan and Co Limited, London.
Dimeo, P. 2007. A History of Drug Use in Sport, 1876–1976, Beyond Good and Evil. Routledge.
Dostie, M. 1988. Les corps investis éléments pour une compréhension socio-politique du corps
El Mundo 2011. Cronología del ‘caso Alberto Contador’. El Mundo Newspaper,
http://www.elmundo.es/elmundodeporte/2011/02/15/ciclismo/1297794357.html. Accessed 31 Decemeber 2012.
Faber, N., and Vandeginste, B. 2010. Flawed science ‘legalized’ in the fight against doping: The example of the biological passport. Accred Qual Assur, March.
Foucault, M. 1978. The Will to Knowledge, The History of Sexuality: 1. Penguin, London.
Foucault, M. 1991. Discipline and Punishment, the Birth of the Prison. Vintage Books, New York.
Foucault, M. 2008. The Birth of Biopolitics, Lectures at the College of France, 1978-1979. Palgrave Macillan, Hampshire.
Hacking, I. 1990. The Taming of Chance. Cambridge University Press.
Hanstad, Dag Vidar and Loland, Sigmand. 2009. Elite Athletes’ Duty to Provide Information on their Whereabouts: Justifiable Anti-doping Work or an Indefensible Surveillance Regime? European Journal of Sport Science, January 1.
Hardie, M. 2011. It’s not about the blood, Operacion Puerto and the end of Modernity. In McNamee, M. And Møller, V (eds) (2011) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives. Abingdon: Routledge. Originally published as No va sobre la sangre, Operación Puerto y el fin de la modernidad, NÓMADAS Revista Crítica de Ciencias Sociales y Jurídicas/Critical Review of Social and Juridical Sciences. 25, Enero-Junio. 2010 (I), Universidad de Compultense, Madrid, Spain.
Hardie, M., Shilbury, D., Bozzi, C., and Ware, I. 2012. I wish I was Twenty One Now, Beyond Doping in the Australian Peloton. Auskadi Samizdats, Geelong, Bilbao and Ossu.
Hardt, M. and Negri, A. 1999. Empire. Harvard University Press, Cambridge, Massachusetts.
Hardt, M. and Negri, A. 2009. Commonwealth. Harvard University Press, Cambridge, Massachusetts.
Hoberman, J. 1992. Mortal Engines: The Science of Performance and the Dehumanization of Sport. The Free Press, New York.
Horstman, D H., Gleser, M., Wolfe, D., Tryon, T., and Delehunt, J., 1974 Effects of hemoglobin reduction on VO2 max and related hemodynamics in exercising dogs. J Appl Physiol July 1974 37:(1) 97.
Horstman, D H., Gleser and Delehunt, J., Effects of altering O2 delivery on VO2 of isolated, working muscle. Am J Physiol February 1, 1976 230:(2) 327.
Houlihan, B. 1999. Dying to win: Doping in sport and the development of anti-doping. Strasbourg, Council of Europe Publishing.
Kreft, L. 2009. The Elite Athlete – In a State of Exception? Sport, Ethics and Philosophy 3(1) April 3-18.
Landaluze. 2006. UCI v L & RFEC. CAS 2006/A/1119 19 December 2006
Lazzarato, M. 2004. From Capital-Labour to Capital-Life. Ephemera 4(3): 187.
Long, T, Pantaléon, N, Bruant, G & d’Arripe-Longueville, F. 2006. A Qualitative Study of Moral Reasoning of Young Elite Athletes. The Sport Psychologist 20: 330.
Lucidi, F, Zelli, A, Mallia, L, Grano, C, Russo, P, Violani, C. The social-cognitive mechanisms regulating adolescents’ use of doping substances. Journal of Sports Sciences, Volume 26, Issue 5, pages 447-456.
Marazzi, C. 2011. Capital and Affects, The Politics of the Language Economy. Semiotext(e), Los Angeles.
McLaren, R.H. 2006. CAS Doping Jurisprudence: What can we learn?. 1 International Sports Law Review 4.
Møller, V. 2011a. One step too far – about WADA’s whereabouts rule. International Journal of Sport Policy and Politics. Volume 3, Issue 2, July 2011, 177.
Møller, V. 2011b. The Scapegoat, About the Expulsion of Michael Rasmussen from the 2007 Tour de France and Beyond, Akaprint, Aarhus.
Neocleous, M. 2000. Fabrication of Social Order: A Critical Theory of Police Power. Pluto Press.
Redmayne, M. 1996. Presenting probabilities in court: The DNA experience, 1996-97. The International Journal of Evidence and Proof, 187.
Read, J. 2003. The Micro-Politics of Capital, Marx and the Prehistory of the Present. State University of New York Press, New York.
Soek, J. 2006. The Strict Liability Principle And The Human Rights of Athletes in Doping Cases. Asser Press, The Hague.
Sottas, P. E., Robinson, N. & Saugy, M. 2010. The Athlete’s Biological Passport and Indirect Markers of Blood Doping, Doping in Sports: Biochemical Principles, Effects and Analysis. Handbook of Experimental Pharmacology, 195: 305-326.
Straubel, M.S. 2009. Lessons from USADA v. Jenkins: You Can’t Win When You Beat a Monopoly. 10(1) Pepperdine Dispute Resolution Law Journal 119.
Thatcher, M. 1981. Interview for the Sunday Times – The First Two Years. The Sunday Times. http://www.margaretthatcher.org/document/104475. Accessed 31 December 2012.
Turner, B.S.1984. The Body and Society. Basil Blackwell, Oxford.
UCI. Anti-Doping Rules of the UCI – Part 14 of the UCI Regulations.
UCI. 2007a. Information on the Biological Passport http://www.uci.ch/Modules/ENews/ENewsDetails.asp?MenuId=&id=NTQzOA&LangId=1. Accessed 31 December 2012.
UCI. 2008a. Whereabouts & location forms
Accessed 31 December 2012.
Waddington, I., Surveillance and control in sport: a sociologist looks at the WADA whereabouts system, International Journal of Sport Policy and Politics Volume 2, Issue 3, 255-274
WADC. World Anti-Doping Code. http://www.wada-ama.org/en/world-anti-doping-program/sports-and-anti-doping-organizations/the-code/. Accessed 31 December 2012.
WADA International Standards. http://www.wada-ama.org/en/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/International-Standards/. Accessed 31 December 2012.
XZTT and Anti-Doping Rule Violation Panel  AATA 728. http://www.austlii.edu.au/au/cases/cth/AATA/2012/728.html. Accessed 31 December 2012.