Good at Games—Does Law Help or Hinder Sport?

In the summer of 2004 I was in Athens as a member of the ad hoc panel of the Court of Arbitration for Sport appointed to resolve disputes at the summer Olympiad. Seeking to return to my hotel I found the entrance temporarily blocked. Along with other guests I waited patiently to ascertain the cause of the hold up. After a few moments all was revealed. Tony Blair, then in his political pomp and only a year away from a third successive election victory, strode up at the apex of a flotilla of advisers  and  security men.  He  was,  obviously,  on  a mission to lobby members of the International Olympic Committee, in  support  of  London’s  bid  to  stage the quadrennial event in 2012, which was, as you will know, successful. Catching sight of me among the crowd, he called out “Michael, what are you doing here?” to which I replied, somewhat vaingloriously “I’m here to try to bring justice to the Games”.

Now I start my lecture to you in this way not just to show that I was on first name terms with the then Prime Minister—that’s what I might call a purely incidental benefit though its value somewhat fluctuates in today’s market place—but rather because it signposts my direction of travel in your company this autumn afternoon.

I am very honoured, indeed very humbled to have been chosen as this year’s High Sheriff’s lecturer not least because of the distinction of those who preceded me—a line of legal luminaries bookended by two of our greatest lord chief justices—Lord Bingham and Lord Judge—with a goodly selection of law lords and supreme court justices in between.

I willingly acknowledge that at first sight my subject matter may seem a little frivolous compared with the Rule of Law or the Legacy of Magna Carta—among the topics developed by previous lecturers—still more so when juxtaposed to Mr Justice Baker’s title “A matter of Life and Death”. But then I reminded myself of what was once said by the late Bill Shankly, Manager of Liverpool about football “it’s not just a matter of life and death, it’s far more important than that”.

And whether Mr Shankly was guilty of going verbally “over the top” as football managers are just occasionally prone to do, there is no doubt that football and a multitude of other sports are by no means unimportant.

Sport ranks in the top twenty of global industries but it does so only because it reflects popular interest, indeed popular passion. Football is the world’s, though not the Olympic’s, premier sport; but as Matthew Syed recently pointed out in the Times, in 2016 there were 48 clubs in Europe with annual revenues of above 100 million Euros which is the annual revenue of a single Tesco superstore. As he put it “football is unusual, perhaps unique, in the schism between its commercial and cultural significance”. It is the latter, not the former, which is truly impressive.

If I needed to provide an evidenced based justification for that statement, I can do no better, and need do no more, than to ask you to turn your minds back three months to the FIFA World Cup in Russia, and, to the kaleidoscope of emotions aroused across the nation as the young English team travelled through the rounds to the semi-final and so called Waistcoat Wednesday, - apprehension, joy, despair, pride, regret.

Mark Damazer the former controller of the BBC Radio 4 and currently Master of St Peter’s College somewhat incautiously wrote in the Evening Standard on the eve of the tournament “after years of working to implant some realism about our sustained football mediocrity, the drumbeat of optimism is getting louder. We are, yet again, being encouraged to hope. It is a mistake”.

It was only the skill of the Croatian midfield that stopped this being the greatest miscalculation by a prominent Oxford academic since the sometime Regius Professor of History, Hugh Trevor Roper, gave his seal of authentication to the forged diaries of Adolf Hitler.

As Huw Fullerton wrote in the Radio Times “There are only two things absolutely everybody has been talking about this summer—the FIFA World Cup in Russia or the latest series of Love Island.” and explained “In a way, the shared popularity makes sense—both feature moments of incredible drama, surprise match-ups and incredibly fit people awkwardly wrestling with each other in front of millions.”

But there are other yet more significant examples, not just from football, to underpin my contention that sport truly matters.

The sporting boycott of South Africa was a powerful force in dismantling the structure of apartheid, not least because rugby was an essential part of the identity of the white South African regime’s base. Later when Nelson Mandela wore the green and gold Springbok jersey and cap in front of 62,000 white South Africans at the 1996 Rugby World Cup final in Ellis Park, the climax of the film Invictus starring Morgan Freeman and Matt Damon, he brought the nation still closer together. 

On this prefatory point I will rest my case.

In a characteristically generous foreword to the first edition of my book Sports Law, that great local, indeed national, hero, Sir Roger Bannister, wrote “Since my own sporting days there has been an astonishing and alarming escalation of legal cases!” Escalation certainly; alarming possibly; but, as I will argue, inevitable, indeed desirable, too.

I am going to concentrate on the core issue of how the game should be played and whether law helps or hinders it. I shall ignore the peripheral and parasitic commercial activities unless they bear on my central theme.

So what is sport?

As to that issue we have the benefit of a decision of the European Court of Justice which will doubtless survive Brexit.  The question  which   engaged  that multi-national judicial body was whether entry fees for Bridge Tournaments qualified for exemption from value added tax for sports related activities.

The Court held “The concept of ‘sport’ appearing in that provision is limited to activities satisfying the ordinary meaning of the term ‘sport’, characterised by a not negligible physical element”.

A not negligible physical element—a low threshold indeed for even the more senior members of this audience—is no doubt a necessary but it is hardly a sufficient description of sport.

I would submit that to qualify as a sport a physical activity must have rules which govern how it must be played. Boules, the French cousin of Bowls, is seeking to transform itself from a mere game played by geriatrics in sun dappled squares in Provence into a true sport by adopting rules and establishing a Governing body in what may be a vain attempt to add itself to the Olympic calendar in time for Paris 2024.

Such rules—a match’s length, the weight of a discus, the width of a goalmouth—are not compelled by the laws of physics or by some moral code. Subject always to the need to comply with the law of the land, they are constantly under review by the Sports Governing bodies influenced by considerations such as the safety of the participants (for example the acceptable height for a tackle in rugby union), the enjoyment of spectators (for example the one strike and you’re out false start rule in athletics), the demands of television (for example tie breaks in the fifth set of tennis grand slams apart from Wimbledon), or of diversity (for exotic example admitting mules to dressage competitions traditionally reserved for horses).

Such reviews are particularly prevalent in games which involve use of a ball, whose invention, or more aptly adaptation from phenomena as distinct as pigs’ bladders or human skulls, was as important to the development of sport as was the wheel to the development of civilization generally. There is a constant itch to modernize and to reflect the modern taste for instant gratification and excitement as can be seen in the development of one day internationals and T20 at the expense of the more langorous county game in cricket.

These rules, be they old be they new, would be meaningless if they could not be enforced. In football, rules define how victory is achieved that is to say by one team—scoring more goals than the other—as well as how a goal is scored—kicking the ball across the goal line from an onside position. Therefore there must be someone to determine whether that has actually happened.

But in all sports decisions of this kind are not for courts of law. They are for the officials-, referees, umpires and the like in charge of the game - whose judgments can be reinforced by technology—Hawkeye in tennis or as in the still controversial VAR, used in the World Cup but not in the Premier League. Alas even video replays cannot resolve all disputes.

The camera may not lie but it can be economical with the truth.

So a key edifice in the architecture of sports law itself is the field of play doctrine. In the absence of evidence of corruption or bias the decision of match officials cannot be appealed other than by a mechanism provided internally by the sport itself - such as juries of appeal in track and field against a decision to disqualify a competitor for running outside his lane. And even the scope for such remedial measures is limited.

Officials do make mistakes, which are uncorrected but un-correctable. Rough justice may be all that sport can afford if only because the game, like any form of show, must go on.

It is incidentally because of the key role played by sports officials that they require regulatory protection from the kind of abuse levelled at the umpire of her match in the US tennis open final by Serena Williams, a form of contempt at court rather than the traditional contempt of court.

Adaptation, rather than abstention, is the way in which the law of the land acknowledges the specificity of sport Breaches of criminal or civil law do occur on the field of play, and can and should attract appropriate penalties or remedies. Sport has no immunity but the law itself sensibly adjusts to the sporting context. In Barnes the Court of Appeal considered when it was appropriate for criminal proceedings to be instituted for an injury caused by one player to another player during a game.

“The fact that the play is within the rules and practice of the game and does not go beyond them, will be a firm indication that what has happened is not criminal. In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal.”

The same tolerance, I add, would not be shown to a player who was proved beyond reasonable doubt to have gratuitously assaulted someone in a drunken brawl outside a night-club ,although, if, as in the case of the gifted English all-rounder Ben Stokes, that high threshold is not reached, acquittal of a criminal offence necessarily follows Combat sports creates their own problems. In Brown (a case about sado-masochistic activities where the legal issue was whether consent of the participants provides a defence to the infliction of actual bodily harm), Lord Mustill, to test the proposition, considered how the law treated boxing. He said that what he described as:

“The heroic efforts” of an Australian judge “to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.”

I doubt that even superhuman efforts could provide a more coherent justification for mixed martial arts.

As to civil law the English law of tort in its protection of the person makes the nature of behaviour of the person who caused the injury determinative of whether liability arises.

Assault and battery, respectively the threat of and the actual infliction of physical injury, requires intent in the tortfeasor.

Negligence requires the infliction of such injury in circumstances where the tortfeasor’s act or omission fell short of an appropriate objectively set standard.

But what is reasonable is again conditioned by the context. As one judge said

“The conduct of a player in the heat of a game is instinctive and not to be judged by standards suited to polite social intercourse.”

Were it not for this indulgence it would be risky for anyone to take part in combat sports or indeed non-combat sports where there was a risk of collision with another participant or, depending on the nature of the sport, a horse, motorcycle, car or yacht.

The common law helps sport not by action, but by inaction.

But more is asked of sport than that competitions should proceed expeditiously and lawfully.

Those who play and those who watch want—or at any rate—should want, competitions should be between the best equipped athletes—hence, for example. rules to ensure the integrity of a selection process and to exclude political interference. The same cohort was or should want that competitions should be fair—that the playing field should be level, even if the players’ talents are not.

Sport’s attraction depends upon its unpredictability. In other forms of entertainment, music or theatre the outcome is pre-ordained.

Members of an audience would be disconcerted, not to say disappointed, if a performance of Beethoven’s ninth unexpectedly stopped short after the end of the third movement or if, in a performance of Hamlet, the Prince of Denmark was still alive at the end of the fifth act.

But no-one would spend any time watching the Boat race if a dead heat was always guaranteed.

The results of sporting competitions should depend upon a combination of skill, application, tactics, playing conditions, and even luck—though as the great South African golfer Gary Player famously said “The harder I practice, the luckier I get”.

They should not depend upon some form of unacceptable manipulation or cheating.

In a case Ivey about alleged sharp practice in a casino earlier this year the Supreme Court, whose members seemed to have a knowledge about card games surprising, if not I hasten to add unbecoming, for our most senior judges, took the opportunity to consider cheating in sport generally even if that involved going, as it were, off-piste.

The Supreme Court expressed the opinion that “the expression ‘cheating’ in the context of games and gambling carries its own inherent stamp of wrongfulness” and while saying that “honest cheating is … an improbable concept” concluded that not all cheating is dishonest.

With the greatest respect—the conventional advocate’s euphemism for saying I fundamentally disagree—though the conclusion indubitably flows from the premise, the premise itself is false. Cheating in sport is necessarily dishonest.

The Supreme Court went on to say that “it would be very unwise to attempt a definition of cheating” regarding it as “a near impossible task”.

Nonetheless, not giving up as easily as Lord Mustill in Brown and warming to their theme the Justices gave some illustrative examples

“The runner who trips up one of his opponents

The stable lad who starves the favourite of water for a day and then gives him two buckets of water to drink just before the race so that he is much slower than normal

The taking of performance enhancing drugs

Deliberate time wasting in many forms of game.”

But they could only deny these well-chosen instances the adjective ‘dishonest’ by adopting an artificial and lawyerly description of that word as involving deceit.

The Supreme Court might have done better, if I may extend the skiing metaphor—to have cloven to the main run—the case before them—if not to the nursery slopes.

Now while crimes are for the national courts, cheating, short of crime, must be dealt with by sports officials, sports governing bodies and sports tribunals.

The sanctions can be immediate - in football a yellow or red card—or postponed—a fine or period of suspension for a serious foul. Sometimes the same behaviour can be a breach both of the law of the land and of the rules of the sport.

In a test match at Lords in 2010 between Pakistan and England the captain of the Pakistan team Butt and two fast bowlers Asif and Amir arranged for the promise of money that three no balls would be bowled at prearranged moments in the match. 

Such activity, so called spot fixing, can be used to facilitate a betting coup for gamblers who will wager large sums that something will happen at a particular time in a particular match.

A disciplinary tribunal of the International Cricket Council, which I chaired, banned them from participation in any cricket-related activities for ten and five years respectively for breach of its anti-corruption regulations. Later they were convicted in the Crown Court for conspiracy to cheat on exactly the same facts and were sentenced to prison sentences (or in the case of Amir detention in a Young Offenders Institution).

The case also neatly illustrates the different roles of the law of the land and the law of the sport. The arsenal of punishments available to Courts of Law does not include depriving unincarcerated sportspeople from playing sport.

The arsenal of punishments available to sports disciplinary tribunals does not include deprivation of liberty.

Imprisonment or detention of the three miscreant cricketers for periods as long as their ban would have been on any view disproportionate to their offence. But to have banned them for periods as short as the sentences imposed by the Crown Court would have been a disservice to the interests of the sport; indeed there were several persons including Freddie Flintoff, former distinguished England Captain if somewhat less distinguished as a jurist, who argued that all three should have been banned for life.

For all these distinctions in substance and severity of sanction imposed by these different bodies the fundamental rationale for each was expressed in ways which were interchangeable.

To justify its conclusion for imposing the bans the ICC tribunal quoted and relied on a dictum in a case of the Court of Arbitration for Sport— Orievkov which concerned a football referee who took decisions calculated to fix a match result,

“it is essential in the Panel’s view for sporting regulators to demonstrate zero tolerance against all kinds of corruption and to impose sanctions sufficient to serve as an effective deterrent to people who otherwise might be tempted through greed or fear to consider involvement in such criminal activities”].

To justify its conclusion dismissing the appeals against sentence Lord Judge said

“The criminality was that these three cricketers betrayed their team, betrayed the country which they had the honour to represent, betrayed the sport that had given them their distinction, and betrayed the very many followers of the game throughout the world. In exchange for the privilege and advantages of playing Test cricket it was required of them that at all times they should perform honestly and play to the best of their respective abilities - no more, but certainly no less. If for money or any other extraneous reward it cannot be guaranteed that every Test player will play on the day as best he may, the reality is that the enjoyment of many millions of people around the world who watch cricket, whether on the television or at Test Matches, will eventually be destroyed”.

To put it more pithily spot fixing just wasn’t cricket. Corruption apart, the major threat to the integrity of modern sport lies in doping.

And in this area the relationship between the law of the land and the law of the sport is yet more remote.

Criminal law prohibits and penalises the use of proscribed drugs for its antisocial consequences as well as to preserve the wellbeing of the users.

Sports law, in this area underpinned by the World Anti-Doping Code an instrument of global reach—a kind of loi sans frontiers—first published in 2004 now in its third iteration, and the template for most domestic codes in most sports, has a specific focus.

As it states in its introduction:

“Anti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as “the spirit of sport”. It is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person’s natural talents”.

While also concerned with the protection of athlete’s health—to ensure that the quick do not too soon become the dead - its primary target is to outlaw the ingestion or injection of those substances which enhance athletic performance—a matter with which the criminal law, at any rate in this country, is not concerned.

The two mechanisms to that end are annulment of results obtained with the aid of such substances and the imposition of periods of ineligibility.

The former is not concerned with the athlete’s own culpability at all; the latter is.

In the docket of the cases of the peripatetic CAS Ad Hoc Panel at the Sydney Olympics the one which attracted most international attention was that of the young Romanian teenage gymnast Ms Raducan who, to cure the symptoms of a cold, took that familiar medicine Nurofen which contained the stimulant ephedrine, on the list of prohibited substances.

The fact that she had no intention to cheat and acted only on the advice of the team doctor did not entitle her to retain her gold medal.

The Panel said:

“the system of strict liability of the athlete must prevail. This means that once a banned substance is discovered in the urine or blood of an athlete, he must automatically be disqualified from the competition in question…it would indeed be shocking to include in a ranking an athlete who had not competed using the same means as his opponents, for whatever reasons”. 

Questions of intent, negligence or fault—the various consequences of each are the subject of sophisticated analysis in the Code—bear only on the issues of the length of  period  of  ineligibility  (if  any)  resulting  from  the anti-doping rule violation.

There are those who argue that the rules against doping in sport should be abolished.

They say that in so far as the aim is to achieve equality of opportunity between athletes the objective is already fatally undermined by the differences, depending on where the athlete resides, of access to funding and, as a result of superior food, equipment, coaching.

They say that the playing field will be as level if all are entitled to take drugs than if none, therapeutic exemptions apart, are entitled to do so—though I would observe that the phenomenon of differential access would be replicated in that cowardly new world too.

They say that the battle against such drug abuse will never be won so that surrender is the wiser as well as cheaper option.

As against this in his preface to the book “Good Sport” by Tom Murray, a persuasive analyst of sporting ethics says compellingly

“Doping undermines what gives sport its value and meaning … Performance enhancing drugs distort the connection between natural talents, the dedication to perfect those talents, and success in sport that’s good enough reason to ban doping”.

In the formula adopted by concurring judges in an appellate court “I agree and have nothing to add”.

Sport must not surrender to malign science, designer drugs, or, in the not distant future, genetic manipulation.

Unless the line, fortified by such developments as retrospective analysis of previous tests or the biological passport which identifies suspicious surges in an athlete’s levels of testosterone, a naturally produced or endogeous hormone—but which can be ingested or injected exogenously to build up the body, is held the punishment of the few athletes who cheat in the interests of the many athletes who do not may too swiftly become the punishment of the many in the interests of an ever diminishing few.

The aim of fair competition, the golden thread that runs through sports law, may of course be distorted by factors which may not involve any wrongdoing on the part of the competitor at all.

Disability sport has its own distinctive regime, differentiating between various categories of physical or mental impairment with a complexity which would challenge the intellect of a Fellow of All Souls or Senior Wrangler which, though itself vulnerable to abuse by those who exaggerate their symptoms, is designed to ensure, as best it can, that like compete against like.

But occasionally a disabled athlete seeks to compete against the able bodied; the most celebrated case being that of the South African sprinter Oscar Pistorious, who was accorded the soubriquet, the “Blade Runner” now alas, serving a long prison sentence for murder wholly unconnected with sport.

The issue which confronted the International Athletic Federation or IAAF was whether his prosthetic limbs gave him an unfair competitive advantage. A CAS panel held that it was for the Federation to prove its case and that it had failed on the evidence to do so.

As a result Mr Pistorious competed both in the London Olympics and later in the London Paralympics as well. The rules have now changed to impose on the athlete the duty to prove that he gained no such advantage. But whether in their previous or present incarnation the objective of fair competition was the same.

To give another example, all sports, for the same fundamental reason, must have rules as to what clothing and equipment can be used. Some, of course, have nothing to do with sporting performance, but with commercial considerations only.

In the Athens Olympics a CAS panel had to wrestle with the question of whether the maximum permitted size of a logo on a sporting vest applied to the vest as bought or the vest as worn.

Given the elasticity of the material, the dimensions inevitably varied between both situations in circumstances which you can well visualize without any verbal explanation by me. The rival arguments succinctly juxtaposed the principle of contractual construction which promoted purpose and that which promoted certainty.

That case was more about marketing than about sport but serious sports—related issues arise in this context too.

Only the hardiest or most masochistic of runners attempt to run in bare feet which explains the burgeoning market in sporting footwear bought for speed as well as style.

The IAAF has recently asserted that Nike’s state of the art game-changing shoe, the Zoom Vapor Fly, “does not require any special inspection or approval.”

Inevitably one day it will have to rule on the permissible amount of energy return allowed from cushioning materials and whether carbon-fibre devices in midsoles should be banned.

Similar regulations apply on water as well as on land. From the start of 2010 swimmers were no longer allowed to wear the full body length polyurethane and neoprene suits during competition which assisted Michael Phelps in his medal winning exploits in the Beijing Olympics—It is, however, noteworthy that the ban did not prevent him from accumulating yet further medals in London and Rio. The man was mightier than his apparel.

Most sports provide too for competitions for different age groups—up to, say, under 21 at one end, or, say, over 35 at the other to ensure again that like compete with like.

Many recognize in pursuit of the same objective the need to differentiate between classes of competitors by reference to weight, for example boxing which has a number  of   different  categories  from  flyweight  to heavyweight (or in the amateur version super heavyweight) or rowing which has a mere two—lightweight and other.

Disputes in the former context could be resolved by birth certificates, in the latter by scales. In practice, if not in principle, lawyers are unlikely to be engaged in resolving any controversy.

The same certainly cannot be said about the most notable dividing line in sporting competition—that between men’s and women’s events, embedded in almost all sports, other than, notably equestrian where the horse eliminates the impact of the human difference.

The basic law, of which a UK statute supplies the paradigm, is clear enough. Section 195 of the Equality Act 2010 allows separate sporting activities to be organised for men and for women where such activities are “gender affected” in that

“physical strength, stamina or physique are major factors for determining success or failure and in which one sex is generally at a disadvantage in comparison with another”.

The provision itself defines its purpose.

But if sport is binary, gender is not. There are intersex athletes who have the sexual characteristics of men and women, and some female athletes who are born with abnormally high concentrations of the male hormone testosterone.

The consequential gender verification issues have been a long and controversial part of athletics history. Dora Ratjen participated in the 1936 Berlin Olympics in the High Jump as a woman. But in September 1939, an unusually inquisitive ticket collector reported that there was a transvestite on his train.

Removed and questioned by the police, Ratjen produced official papers which appeared to verify his female gender, but a doctor concluded as a result of a gynaecological examination that Ratjen was a man. Consistent with that conclusion Ratjen later changed his name from Dora to Heinrich.

To avoid such unsatisfactory outcomes, crude physical inspections were prevalent in the 1950s and 60s in the athletics world—a distasteful form of unclothed beauty parade without the need for the participants, as in conventional contests of that kind to pretend to a knowledge of Plato or a desire for world peace.

Chromosomal testing was introduced for the 1968 Olympics and, as perception of gender differences became more sophisticated, in 2011 the IAAF introduced Regulations Governing the Eligibility of Females with Hyperandrogenism, which would prohibit a woman with more than a particular level of testosterone, a predominantly masculine hormone, from competing in a woman’s race unless she had treatment to reduce those levels

These regulations were themselves suspended by the CAS in the case of the Indian sprinter Dutee Chand on the  basis  that  the  scientific  evidence  relied  on  was insufficient to justify them. Since then yet further studies have been carried out and a refined set of regulations will come into effect on 1st November of this year.

More of the recent attention has focussed on a single athlete—the South African runner Caster Semenya who has over the last decade won one Olympic title and three world championships in her favoured event the 800 metres.

The IAAFs proposals, calculated to affect cases such as hers, has aroused high concerns among various human rights bodies, including the United Nations Human Rights Commission as well as high profile feminist spokespersons such as Billie Jean King, the tennis champion, whose victory over former men’s Wimbledon Champion Bobby Riggs, albeit past his prime, is celebrated in the film ‘Battle of the Sexes’.

It is suggested that the rules are discriminatory against women because no similar rules about abnormal testosterone levels apply to men; that they offend against female dignity and privacy; that it is unacceptable that a woman can be compelled to undergo some form of therapy, albeit not actual surgery, as a precondition for participation in her sport; that the science said to justify the rules is flawed; and that the benefits enjoyed are both natural and therefore no different in kind from other physical advantages such as long legs or fast twitch fibres. Inevitably a fresh challenge to their legitimacy has been launched before CAS. The sporting world waits.

Transgender athletes present still more formidable problems, especially at the extreme end of a complex spectrum. There are several countries, spread across the globe, whose laws allow someone who was born a man to identify himself as a woman and afterwards be treated in law as a woman. But I hope I shall not be trolled as transphobic if I say that a person who remains biologically a man, even if legally a woman, cannot be permitted to compete in women’s sporting events without making a nonsense of the competition.

If Usain Bolt were, unthinkably, to decide that he wished henceforth to be identified as a woman and were participate in the women’s sprints events, he would multiply his already unique collection of Olympic and world championships medals. Cui bono? To whose benefit apart from the hypothetical Ms or Ze Bolt ?

In the musical version of Bernard Shaw’s Pygmalion, My Fair Lady, Rex Harrison in the role of Professor Higgins famously sang “Why can’t a woman be more like a man?”

The problem for sport arises when that actually happens.

It is an irony that the best-known transgender person is the former Olympic men’s champion in the decathlon whose athletic fame has been curiously overshadowed by his relationship with the clan Kardashian.

Section 195(2) of the Equality Act indeed permits organisers of competitions to restrict the participation of a transsexual person in sporting activity but only if it is necessary to do so to secure …— 

(a)         fair competition, or

(b)         the safety of competitors

but its definition of transsexual may not embrace all conceivable examples of gender reassignment and it says nothing about intersex persons.

The law may be a lap behind increasing knowledge about physiological and psychological nuance as well as social and cultural developments, but catch up it must.

Fair competition must be guaranteed not only in individual but in team sports.

In the ENIC case the issue was whether it was acceptable that the same person could own two teams in the same competition. CAS held that there was a risk that results could be manipulated in the owner’s commercial interests. It said memorably

“Sports Law has developed and consolidated along the years, particularly through the arbitral resolution of disputes, a set of unwritten legal principles—a sort of lex mercatoria for sports, or, so to speak, a lex ludica—to which national and international sport federations must conform, regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided they do not conflict with any national “public policy” (ordre publique) provision applicable to a given case.”

Another CAS case FC Seraing has outlawed third party ownership of football players where persons other than the player’s club hold so called economic interests in him. It was held that, amongst other considerations, such a peculiar phenomenon created a risk of impairing the purity of competition where the ownership extends to two players in opposing teams.

And yet another CAS case Galatasary has upheld the validity of the FIFA Financial Fair Play Regulations which forbid clubs to emulate the economics of Charles Dickens’ Mr Micawber and insist on them breaking even in their dealings in the transfer market.

The three cases have this in common. All of them involve restrictions on economic freedom and so engage principles of competition law but all of them recognize that such restrictions are necessary in the interests of fair competition itself.

Such rules, as others like them, for example salary caps or the requirement, under FIFA regulations, that compensation be paid by a club which engages a player to a club which has contributed to his development, reflect the paradox that there is a mutual interdependence of participants in team sports unlike in commerce where, subject to laws about monopolies and cartels, each business seeks to eliminate its rivals.

In the Bosman case the European Court of Justice said:

“in view of the considerable social importance of sporting activities and in particular football in the community,  the  aim  of  maintaining  a  balance between clubs by preserving a certain degree of equality, and uncertainty as to results must be accepted as legitimate.”

There cannot be a competition of one. It takes two to tango and more than that number to make sports attractive to the non-participant who wants to watch, listen to commentary on, or simply read about results in the newspapers. Competition must not only be fair, but, more fundamentally there must in the first place be competition.

If there is to be disciplinary action, fortified by penalties, for breach of the rules, the rules must themselves be fair. In Quigley a doping case CAS said:

“The fight against doping is arduous and it may require strict rules. But the rule makers and rule appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accreditation. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of de facto practice over the course of many years of a small group of insiders.”

Breach of the rules cannot merely be asserted; it must be  established.  In  doping  cases  the  evidence  of  an anti-violation will ordinarily emanate from the accredited testing laboratories complying with established protocols under the general supervision of a national anti-doping authority or NADA recognised by the World anti-doping authority (WADA).

WADA’s recent conditional lifting of the suspension of Rusada, Russia’s NADA, has proved highly controversial because in the eyes of many critics it has allowed a poacher not so much to turn gamekeeper but to play both roles at once.

But in corruption cases the acquisition of inculpatory material is more difficult. Investigators for bodies such as FIFA or the IAAF lack the powers available to law enforcement agencies: search, seizure, surveillance, subpoenas. They cannot compel potential witnesses to speak to them or obtain crucial documents such as bank accounts. They cannot require such agencies to make inquiries on their behalf or, to share the findings of the inquiries those agencies.

Their regulatory powers stem from contract only between those bodies and those who participate in sport under their aegis.

Nor, unlike investigative journalists, can such bodies resort to entrapment of the kind which ensnared the Pakistani trio at Lords; and whistle-blowers, like Mr Rodchenkov, former head of the Moscow laboratory, require protection against reprisals, and, in his case, exile too.

Sports law diverges from the law of the land in a number of ways. It does not ordinarily demand that a disciplinary offence be proved beyond reasonable doubt—the formula deployed in criminal law. It has designed the more flexible standard of comfortable satisfaction.

It does not ordinarily have detailed rules for the admissibility of evidence. Some fundamental principles like those of legal professional privilege, guaranteeing that a lawyer’s client can discuss his case with a lawyer under a seal of confidence, or the right not to be compelled to incriminate oneself are recognized, the former in an absolute, the latter in a modified form.

Otherwise any potentially relevant evidence is admitted; what weight it is to be given is a matter for a judgment of an expert sole arbitrator or arbitral panel. not necessarily specialist lawyers.

Lord Denning once said:

“Justice can often be done in them better by a good layman than by a bad lawyer. This is especially so in activities like football and other sports, where no points of law are likely to arise, and it is all part of the proper regulation of the game”.

although as sports law has developed, given what is so often at stake in disciplinary cases lawyers are often involved, and CAS, the world court of sport, is entirely composed of senior lawyers.

Nonetheless the twin pillars of natural justice—let no one be a judge in his own cause and hear the other side apply to sporting cases as they do throughout the law.

The former guarantees that the adjudicator must not only be free from actual bias from the perception of bias, the latter that the defendant has an opportunity both to know the nature of the charge he faces and to defend himself against it.

A sporting disciplinary case does not have to ape the elaborate procedures appropriate to a terrorist trial at the Old Bailey but the basic principles of fairness are no less applicable.

Critical above all is the integrity and intelligence of those who have responsibility to decide these cases, each of which must be subject to fair assessment. They must remind themselves that suspicion is not the same as comfortable satisfaction.

Doping cases present particular challenges since the person accused who actually admitted the offence is so rare as to justify inclusion in a Bateman cartoon.

Denial is the default reaction to the charge, and, if I may be forgiven for plagiarising my own dictum in a CAS award “It is regrettable that the currency of such denial is devalued by the fact that it is the common coin of the guilty as well as of the innocent”)

Bizarre explanations on a par with “the dog ate my homework” (or nowadays “pressed the delete key”) are not unknown.

Dennis Mitchell the US Olympic sprint medallist claimed that the elevated level of testosterone in his bodily fluids was the product of a combination of a strenuous amount of sex coupled with the consumption of still more generous amount of beer.

Two Brazilian long distance swimmers, indicated Sarapatel, a local delicacy whose main component was boars’ testicles, as the source of the prohibited substance found in their system. Unfortunately, there was no evidence that such a dish had been served in the hotel where they ate their pre-race meals.

Javier Sotomayor, still the record holder for the men’s high jump claimed that the laboratory test carried out in Montreal had been manipulated at the instigation of the USA as a by-product of the Cold War. He produced a statement in support by the then President of Cuba, Fidel Castro, whose relevance was in inverse proportion to its length.

Just because a particular defence say that a competitor spiked the accused’s energy drink, is advanced in one case where there was no evidence to that effect, does not mean that it may not be sustainable in another case.

In no less than three cases after careful scrutiny of the evidence CAS panels have accepted that the prohibited substance, cocaine or steroid, was transferred by the passionate kissing indulged in by the athlete with his girlfriend, who, whether for therapy or recreation, had taken it in the first place. There is always a presumption of innocence; and each charge in each case must be approached with an open mind.

So my message is that Sports law both in its elements and in its enforcement must be fair as well as firm in the interests of those who play it and those who follow it through whatever medium, for unless participant or spectator know that the sport is clean in the end there will be no sport, but merely a circus. In the Black Sox Scandal of 1919, sometimes described as the Sports Scandal of the Century, the famous American baseball player “Shoeless Joe” Jackson was found to have thrown a match. A distraught fan, not wishing to believe that his hero had not only a golden arm but unshod feet of clay uttered the unforgettable and poignant words “Say it ain’t so Joe Say it ain’t so”.

Sports law should aim to ensure that, as far as possible, it ain’t ever so.

This article was first published by the International Sports Law Review [2019]  I.S.L.R., Issue 1 and was taken from the High Sheriff of Oxfordshire's Annual Law Lecture, 9 October 2018.