How the United States Government Sacrifices Athletes' Constitutional Rights in the Pursuit of National Prestige

Abstract: This Article is about the United States Government trading off athletes' constitutional rights in the pursuit of national prestige through sport. The Olympic Movement has for decades provided an incentive for governments of all ideologies to use elite athletes to enhance national prestige or demonstrate national supremacy. This phenomenon is commonly known as "sportive nationalism." Unlike countries such as the former East Germany and Soviet Union, the United States Government has not readily acknowledged its own practice of sportive nationalism, preferring instead to assert that Olympic Movement sport in the United States is a private endeavor. This Article, however, demonstrates that the United States has in fact practiced its own brand of sportive nationalism-previously as a foreign policy tool during the Cold War and today as part of the worldwide fight against athletic doping. This Article explains that the practice of United States sportive nationalism is accomplished through the United States Olympic Committee and now the United States Anti-Doping Agency, both of which serve as "private" Olympic Movement regulators. This private sector status of sport regulation in the United States has created a significant accountability vacuum so that manifestations of sportive nationalism that threaten athletes' eligibility, like the war on doping, largely go unchecked. As a result, athletes' constitutional liberty and property interests are threatened because there is no incentive to give, and in fact athletes are not given meaningful due process protections to protect their eligibility. Accordingly, this Article argues that steps should be taken to promote greater accountability for sportive nationalism in the United States Olympic Movement, so that the athletes who serve to enhance our nation's prestige do not risk their due process rights in the process. INTRODUCTION In the 1970s, against the backdrop of the Cold War, the United States Government began to engage in a practice known as "sportive nationalism," taking and supporting actions that use Olympic Movement1 sport and individual athletes' sporting success to demonstrate the United States' supremacy on the world stage. From a legal standpoint, the United States Government's practice of sportive nationalism was benign in terms of its effect on athletes' constitutional rights. The government typically took actions that supported success in Olympic Movement competition-a position that easily aligned with athletes' pursuit of their sporting careers. Moreover, Cold War Era athletes, pursuing their sport as an avocation, did not have a claim of entitlement in their eligibility that would trigger constitutional due process protections. Today, however, the government's practice of sportive nationalism, and sportive nationalism's cost to athletes, has changed dramatically. The government no longer simply uses success in Olympic Movement competition to promote national prestige, but instead uses the punishment of individual athletes and termination of their athletic eligibility2 to achieve this same end. This action comes at a time when athletes can make a convincing claim that their athletic careers are entitled to constitutional due process protection. Consider the case of Floyd Landis, the 2006 Tour de France champion and long-time elite cyclist. After his dramatic comeback in Stage 17 of the Tour, it was announced that Landis tested positive for exogenous testosterone, and the United States Anti-Doping Agency ("USADA") subsequently charged him with a doping offense.3 The French lab that tested Landis and claimed to have gotten a positive result4 was the same one that had unsuccessfully accused Lance Armstrong of doping during his run as a seven-time Tour champion.5 Landis vehemently denied the charges and sought arbitration. Despite finding multiple errors in the lab's handling and testing of Landis's sample and other inconsistencies that the panel found "troubl[ing]" and amounting to "sloppy practice[s],"6 the arbitration panel ruled 2-1 that Landis had committed a doping offense. …