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September 23, 2016

This sporting law


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In his new book Spitting in the Soup the sports journalist Mark Johnson makes the case that until the last 150-odd years doping was an open and acknowledged part of sports. Today's prohibitions took root, he writes, when Pierre de Coubertin reinvented the Olympics as a modern phenomenon based on his own romantic ideal of the noble amateur. Not for Coubertin the grubby professional's struggle to gain an edge; instead, the gifted aristocrat who wins on pure talent (like some deluded tennis fans still insist that John McEnroe did.)

In 1998, when the Festina affair meant sports governing bodies could no longer pretend doping was limited to a few rogue individuals, one of the least welcome aspects was the involvement of traditional law enforcment. Willy Voet, a soigneur for the Festina cycling team, was caught at a national border, his car stuffed with various doping agents and illegal drugs, and eventually served a prison sentence. Would the IOC want to see police raid the Olympic village at dawn or crash medal ceremonies to forcibly drag away winners in handcuffs? Not so much.

The result, as discussed at the small and fascinating Sports Law conference last week, was to create an alternative, privately administered legal universe for sports: lex sportiva. The question those assembled considered: is sporting autonomy still sustainable?

The 2009-2016 TV show The Good Wife had fun showing how this works in (fictional) practice by setting a case in the Court for Arbitration of Sport ("Je Ne Sais What?", Season 4, episode 12). The comparison to internet regulation is compelling: private rights holder entities and governments increasingly want to devolve the policing of online content to ISPs and hosting services. Both sports and the internet are inherently international by nature, with stakeholders that range from single individuals and state-level NGOs to multinational corporations and national (or, in the case of the EU, multinational) governments. Which stakeholders are represented in governing bodies and how redress is managed are crucial to ensuring not only fairness but effectiveness.

Thumbnail image for Antoine-Duval_2014.jpgAnti-doping, the inevitable focus of much of the conference, is familiar to most of us; the conference's eye-opener was the makeup of CAS, the ultimate court of appeal in doping cases. It is, explained Antoine Duval, "difficult to think that CAS is independent as it stands now." Athletes are not involved in appointing judges, partly because other than in a few professional sports they're not organized for collective action. Worse, CAS cases pitting sports governing bodies against accused athletes are typically unbalanced. As Duval put it, "repeat players against one-shotters".

Therefore, he argued, CAS is dominated by sports governing bodies, who share the same basic position and interests (and to whom, as the recent McLaren report showed, athletes may be fungible). Unlike the commercial world, where arbitration is a choice, athletes are contractually forced to accept CAS's decisions. "It should be acknowledged as mandatory," Duval said, adding that the court should become transparent about who is nominated and by whom, and should include completely independent judges from outside the sports sector.

As I write this, the bus across Zurich passes a sign for the FIFA museum, backing up a point made by the employment lawyer Andrew Smith: Swiss national courts share a conflict of interest because both CAS and the IOC are based here. Was that in play in one ruling that held that there was no need to assess CAS's independence from sports governing bodies because all athletes share the same interest in doping-free sport? "They bring in a lot of money and tourism." Yet, he argued, arbitration may be preferable to the limitations and uneeven access to legal representation of national justice systems.

Johnson lays out the case that many of the claims underpinning the ban on performance-enhancing drugs - their medical danger, for example - are more myth than substance. That might be an argument for letting sporting bodies go on making their arcane rules. But the same does not apply, as Jack Anderson said, to match-fixing and corruption within and between the sporting bodies themselves. In that, they're no different from internet companies fighting privacy regulation, which, as former Privacy International director Simon Davies used to say, "are pathologically unable to regulate themselves".

What happens at present, argued Simon Boyes, at least under English law, is that courts refuse to rehear cases, and sports governing bodies become as infallible and unaccountable as the Pope. Eventually, he said, sports law that drifts too far from that of the societies it's based in, will have to undergo a seismic shift to come back into alignment.

According to Tom Serby, the autonomy of sports law also derives from de Coubertin. In his famous 1909 quote: "The goodwill of all the members of any autonomous sport grouping begins to disintegrate as soon as the huge blurred face of that dangerous creature known as the state makes an appearance."

John_Perry_Barlow.jpgCould he sound any more like John Perry Barlow in 1996? "Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather."

And look how that's working out.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.