ENHANCING PERFORMANCE, EVADING REGULATION: LAW, LIABILITY AND THE ENHANCED GAMES, 2026

Introduction 

The Enhanced Group Inc. (“Group”), founded by the Australian billionaire Dr Aron D’Souza in 2023, completed its inaugural edition of the Enhanced Games (“TEGs”) this May in Las Vegas with participation from 42 athletes across 24 countries, of which some were Olympians, and an unprecedented purse of $25 million. Labelled as the 'Doping Olympics,' the TEGs claim to surpass the natural limitations of the human body through scientific innovation and redefine the future of sport by embracing performance-enhancing drugs ("PEDs"). The Group prides itself on values of scientific transparency, athlete independence and medical welfare; however, with million-dollar incentives and performance products available for purchase, it challenges not just the authority of the international anti-doping regime but also has far-reaching consequences for the athletes’ future, commercialisation of substances and public health. With the 2028 Olympics scheduled to be held in Los Angeles, we analyse as to what will be the fate of these athletes? 

Rules, or Lack Thereof: Jurisdictional Gaps and Immunities

With the announcement of the TEGs, where athletes are encouraged to use PEDs, predictions of lawsuits, injunctions, or at least a legal threat was made, but none happened. The central legal question is not what the Group did, but why no one could stop them. The anti-doping regime failed simply because it was never designed to confront this. The Group hit the anti-doping regime on multiple fronts: conducting a pro-doping event, offensive litigation, and athletes’ meagre autonomy while benefiting from jurisdictional inapplicability. In one way or another, it has even secured victories by avoiding liabilities on itself from World Anti-Doping Agencies (“WADA”), which has been elaborated below.

Jurisdiction: Missing in Action

The WADA Code operates exclusively through a signatory framework, binding only International Federations, National Anti-Doping Organisations, and voluntary private event organisers. This is evident from WADA v. RUSADA, where non-compliance consequences could be imposed on Russia only after establishing its signatory status. The Group was not a signatory, as it voluntarily chose not to adopt the WADA Code, making it safe from WADA’s jurisdiction and, consequently, sanctions. 

Moreover, the US authorities had no domestic mechanism to operationalise WADA’s request to stop the Games. The Rodchenkov Anti-doping Act (2019) criminalises conspiracies to dope American athletes at International competitions and not to tackle an openly pro-doping event in the US. There was no jurisprudential basis on which the Games could be sanctioned, resulting in only warnings and statements of condemnation issued by WADA and the International Olympic Committee (“IOC”). 

Ironically, rather than being sanctioned, the Group went on the offensive. In Enhanced US LLC v. World Aquatics et al., the Group filed an $800 million antitrust lawsuit against WADA, World Aquatics, and USA Swimming, in response to World Aquatics By Law 10, which bans athletes engaged in a pro-doping sporting event without any scope for appeal. The case was dismissed for the failure to state a claim; nonetheless, it highlighted the meagre leverage of the athletes against the bylaws.

Olympic Eligibility: Athlete Liability under the WADA Code

This brings us back to the original question about the fate of the athletes. For the competing athletes, the consequence depends on whether participation in an openly pro-doping event constitutes violations under Article 2 of the WADA Code. As the Group did not follow the WADA protocols, the relevant violations would be under Article 2.2, which prohibits the use or attempted use of a prohibited substance. If proceedings are initiated, WADA Code sanctions under Article 10 will lead to a period of ineligibility of 2 to 4 years, financial sanctions, and forfeiture of prize money. The athletes cannot use the no-fault defence, as they have themselves disclosed the use of PEDs.

However, this is only against the athletes within the system, who will potentially participate in any event under the WADA jurisdiction, like the Olympics. Moreover, in the (WADA) v. Swimming Australia, Sport Integrity Australia & Shayna Jack, where the consequences of doping violations by swimmer Shayna Jack were decided upon, the Court of Arbitration for Sport (“CAS”) only reduced the period of ineligibility. Hence, no claim can save the participating athletes from suffering consequences if they wish to participate in WADA-followed events. 

This is the structural flaw that TEGs exposed. The WADA code sanctions are entirely athlete-centric. There is no real consequence for the organisers of pro-doping games. Theoretically, Article 2.7, covering the trafficking of prohibited substances, and Article 2.8, covering the administration of substances to others, could extend liability to the medical staff and organisers, but again, presuming WADA’s jurisdiction.    

When Livelihood Means Doping: Indian Athlete’s Position   

For an Indian athlete, the consequences would be stricter, extending to criminal liability for athlete support personnel, if the proposed Amendments to the National Anti-doping Act, 2022, are enacted. But there exists a possibility of the addition of a constitutional dimension. Could an athlete invoke the right to livelihood and bodily autonomy under Article 21 to challenge the restrictions imposed for participating in a medically supervised pro-doping event? This is an unanalysed question, yet significant in the light of the scale of financial incentives involved.

In the legal world, the Group challenged the monopoly of the federations over the sporting world, highlighted the glaring gap in the sanctions imposed by WADA, and created an opportunity for athletes to play for monetary benefits that can actually sustain their livelihood. Nonetheless, in the consumer world outside the tracks, it has posed significant challenges for public health and diminished the credibility of Anti-doping authorities.

Why should the anti-doping world care? 

Health, Ethics, Fairness

From Knud Jensen and Lance Armstrong to the Olympics and Tour de France, the heavy toll that doping takes on athletes is evident. In the midst of new synthetic drugs being manufactured during the 1950s and elaborate state-sponsored doping programs that administered substances to underage athletes, it is the athletes that pay the price, often forced to trade their health and well being, for short-lived glory. The repercussions that followed the East German doping program, with Reinisch developing ovarian cysts and heart arrhythmia and Menschner getting paralyzed at the tender age of 14, are evidence enough of the brutal consequences of using PEDs. The cumulative effect of these unfortunate events is what prompted the creation of WADA in the year 1999. The fundamental rationale of the Code is based primarily on health, fair play and ethical behaviour. This is exactly what TEGs challenge and hope to destroy. They represent the undoing of decades of effort to free sports from the menace of doping. It boasts of scientific innovation, transparency, freedom, bodily autonomy and putting athletes first. It claims to help athletes “optimize their health, performance and recovery,” to achieve “superhumanity” and as suspected, provide “people and athletes alike access”. Truth be told the Olympics itself is dusty, however the outright rejection of established rules and protocols threatens a return to the era of collapsing athletes.  

 Doping and State Responsibility 

Article 8 of the 2005 UNESCO International Convention against Doping in Sport casts a duty upon the state parties “to adopt measures to restrict the availability of prohibited substances and methods” including control of “production, movement, importation, distribution and sale.” When a private company claiming to possess FDA approval sells PEDs directly to the public without any medical prescription or supervision, the failure of the US to control their availability and protect athlete health is apparent. Moreover, the participating athletes and the invite-only guests themselves endorse the Group’s products. The unrestricted availability of such substances threatens not just public health but also deeply influences the minds of young, budding athletes, encouraging them to chase the idea that they require PEDs to increase their strength and achieve success. Ultimately it's a carefully calculated massive marketing campaign which strikes directly at the foundation for clean sports. 

Money Vs Medals 

At the end of the day what ultimately seems to be the tipping point for these athletes is the pay check and not the PEDs and promise of superhumanity. When given the choice between a six-figure salary, $250,000 prize money and bonus worth $1 million as against some medals and $0 cash prize, there is not much debate. Although their home countries and international sporting federations are free to reward them, only a handful of them offer substantial consideration, which is further limited to a few popular sporting events. The reality is that many athletes are forced to have a livelihood alongside sports to support their families and children’s education, some even resorting to selling their hard earned gold.    

Erosion of Authority

Where the idea of a Steroid Olympics has been floating around for 2 years and WADA, IOC as well as the USADA have been merely calling names and the company has remained unscathed, one must question the true authority these organisations hold.

Moreover, with the big names in Olympics crossing over to the other side it highlights deeper problems within the international sporting arena - lack of due consideration, hollow recognitions and treatment of athletes as usable commodities and objects of entertainment. Eventually, the burden again is to be borne by the athletes in the upcoming 2028 Olympics. 

Conclusion

In a nutshell, the TEG exposes several critical fault lines in the global anti-doping framework. The existing legal and regulatory framework is ill-equipped to sanction organisations that openly promote performance-enhancing methods, while burdening the athletes with consequences and exploiting their financial vulnerability. By operating outside WADA’s signatory reach and leveraging monetary incentives, the Group has attempted to normalise high-risk doping to the general public through endorsements from the participants, boosting concerns over legal insufficiency. For athletes, participation is a trade-off between short-term income and reputation and potential bans and lasting medical harm. For states and sporting bodies, regulatory, liability and jurisdictional gaps disable enforcement and risk athletes’ and public health. If reforms are not put in action now, the promise of scientific progress will be hollowed out by commodification and the collapse of sports organisation giants. 

Vaiddhriti Singh and Astha Agrawal are IInd year BA. LL.B Hons. sttudents at the Hidayatullah National Law University, Raipur