I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 

You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473

Abstract: 

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.

Table of contents: 

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger

Beginning of April 2014, the Colombian Olympic Swimmer Omar Pinzón was cleared by the Court of Arbitration for Sport (CAS) of an adverse finding of Cocaine detected in a urine sample in 2013. He got lucky. Indeed, in his case the incredible mismanagement and dilettante habits of Bogotá’s anti-doping laboratory saved him from a dire fate: the two-year ban many other athletes have had the bad luck to experience.  

Contrary to a social drug like cannabis, cocaine is not a specified substance under the World Anti-Doping Code (WADC) and therefore does not enjoy a lenient status. The sanctions endured in case of a positive cocaine test under the WADC are severe, i.e. in the absence of any exceptional circumstances a strict two-year ban. But, cocaine is not a normal drug either; its powdered form is widely consumed in a social and festive context, whereas the coca leaves are still used in South America.  

Thus, it is not very surprising that it is also one of the most widely detected stimulants in the framework of the fight against doping. How does one differentiate between an unlucky fellow and an outright cheat? You just don’t! As a principle, the CAS has adopted a strict interpretation of the WADC and shifts a heavy burden of justification on the athlete’s shoulders.  

 In theory, the World Anti-Doping Code 2009 foresees in article 10.5 that an ineligibility could be annulled, in case of  ‘[n]o fault or negligence’ (10.5.1) or reduced in case of  ‘[n]o significant fault or negligence’  (10.5.2). However, in practice the CAS interprets very strictly the scope of these provisions. One of the few exceptions was the Gasquet case. On this occasion, the CAS acknowledged that the athlete was not at fault for having ingested cocaine. This was due mainly to the very specific factual circumstances: Gasquet was found to have been contaminated through a fatal kiss.  

In general, the ‘no (significant) fault or negligence’-standard is quasi impossible to reach. We have found a certain number of examples in the CAS case-law to illustrate this point. In its first award involving cocaine, the CAS considered that an athlete, who was unknowingly given coca tea to drink and coca leaves to chew during a trip in the Andes, had acted negligently and therefore could not see his ineligibility reduced (CAS 2004/A/690). Later on, the CAS refused to consider as probable the fact that a spiked cocaine cigarette could have been given to an athlete, thus triggering the contamination (CAS 2006/A/1130). Moreover, it also rebuffed, the “peer pressure” argument put forward by a young football player (CAS 2007/A/1364).   

So far, CAS panels have refused to consider the fact that the consumption occurred out of competition as a mitigating factor (CAS 2008/A/1479). But arbitrators also rejected more sophisticated arguments, such as the ones advanced by Simon Daubney, an America’s cup sailor, who argued that his contamination was due to a spiked drink prepared by supporters of a rival team. Concretely, the panel considered that “[a]s an experienced athlete, he could not ignore that he should pay attention to what he was drinking and from whom he got the drinks, which he did not” (CAS 2008/A/1515). The consumption of cocaine “in a moment of euphoria but not with the intention to increase his athletic performance capability” was definitely not meeting the ‘[n]o significant fault or negligence’ standard (CAS 2008/A/1516). Smoking a joint of cocaine, at a party, four days before a competition, was likewise considered significantly negligent (CAS 2009/A/2012). Finally, a Brazilian football player arguing that he was addicted to cocaine, did not convince the panel either. The arbitrators doubted that he could not have taken precautions to avoid using cocaine during ‘in-competition’ periods (CAS 2011/A/2307).  

All the above-mentioned athletes have faced a two-year ban. In short, the CAS remained ice-cold when dealing with athletes having ingested, voluntarily or not, cocaine. 

The new WADC entering into force in 2015 will not change much for an athlete who tested positive for cocaine. In fact, he still has to demonstrate that he acted without (significant) fault or negligence to obtain a reduced ban. Thus, unless the CAS shifts its interpretation in this regard, the hurdle will remain very high. But is it fair that an athlete, who has not intentionally taken cocaine and could not profit from it to improve his sporting performance, gets a two-year ban? One can doubt it. Such a strict reading of the WADC by the CAS can only lead to the piling up of judicial vendettas by athletes drawn to the national or European courts seeking revenge and justice. This state of play might, sooner or later, bring the whole anti-doping system to its knees (the edifice has already started to tremble with the recent Pechstein ruling). Hence, for the sake of preserving a global anti-doping regime, it is high time that the CAS adopts a lenient interpretation of the ‘no (significant) fault or negligence’-standard and starts adapting the level of the sanctions to the responsibility of the athletes involved.  

A longer version of this post is available on SSRN.