'Strict Liability' and legal rights: Nutritional Supplements, 'Intent' and 'Risk' in the Parallel world of WADA

First paragraph: Much of the discussion about the legal relationship between athletes and anti-doping regimes has focussed on the application of what is invariably, although somewhat loosely, referred to as the ‘strict liability principle’, and this paper is concerned with the application of this principle in the context of nutritional supplement use (for more general discussion of its application see Charlish, 2012; Anderson, 2013). The principle’s significance lie in the fact that domestic courts worldwide (for example those of England and Wales in Korda v ITF, The Times 4 February 1999), the Court of Justice of the European Union (Meca-Medina v Commission [2006] 5 CMLR 18) and the Court of Arbitration for Sport (USA Shooting and Quigley v Union Internationale de Tir CAS 94/129) have accepted that the relationship between an athlete and the governing body is contractual and that even if there is no written agreement between the parties, the existence of that contract can be discerned from the parties’ dealings with one another. As part of this contractual relationship, athletes are deemed to have accepted the provisions of the WADA Code, both in terms of the substantive provisions of what substances are banned and the sanctions that can be imposed for violation of the rules. The procedural provisions that deal with the conduct of anti-doping tribunals and the potential right of appeal to the CAS are also incorporated into this contract

The Courts, the CAS and the 'Professional' Athlete

This chapter introduces some key judgments concerning athletes’ participation rights and sports arbitration, including the recent cases involving Oscar Pistorius, Matuzalemda Silva and Glasgow Rangers FC. It uses those cases to discuss the relationship between sports arbitration and the powers of the domestic courts, introduces the concepts of ‘international’ and ‘global’ sports law and discusses how awards of arbitral bodies can be enforced, and can be challenged, in ‘ordinary’ courts, with particular reference to the Swiss courts which have oversight of the Court of Arbitration for Sport. Some of the arguments in favour of CAS reform are introduced and the distinction between the courts’ appellate and supervisory functions are discussed

SPORTS LAW, SPORTS POLICY AND THE AMATEUR ATHLETE.

There have been a number of significant papers on the European Court of Justice’s 2019 decision in TopFit v DLV, a preliminary reference which concerns direct nationality discrimination against an amateur athlete. This paper contributes to that knowledge-base by drawing on those contributions but also by setting the case in its historical context to show how it aligns with forty years’ worth of developments in both sports law and sports policy.  Furthermore, TopFit illustrates that the potential ramifications of the EU’s sports competence as laid down in Article 165 TFEU might be greater than they first appear. Contrary to the Advocate General’s Opinion, the Court held that direct nationality discrimination laws were applicable to amateur sporting activities – there was no need to establish the existence of economic activity which, fortuitously, Biffi possessed. It thus needs to be considered alongside the wider caselaw on EU citizenship, and the case is not a matter of ‘purely sporting interest.’ But nationality restrictions can still be legitimate if they are deemed to be a proportionate response to a legitimate sporting concern. In any other cultural sphere, the idea that one’s desire to take part in an amateur event might be lawfully ended by ‘proportionate’ discrimination would seem ludicrous. The paper argues that sport’s privileged position within the European Union is a reflection of its ability to leverage its financial muscle and ubiquity, and its concomitant ability to influence policymakers; it does not possess any ‘inherent’ qualities that make it ‘special’ in comparison to other cultural fields

"Just One of the Challenges of 21st-Century Life": Oscar Pistorius in the Court of Arbitration for Sport

First paragraph: On May 16th 2008, the Court of Arbitration for Sport handed down its decision in Oscar Pistorius v The International Association of Athletics Federations. Pistorius is a class-43 (double amputee) athlete from South Africa, born in November 1986. His legs were amputated below the knees when he was 11 months old because he had been born without fibulas (a lower-leg bone which supports about 15% of an adult’s body weight). He started running at the beginning 2004 to assist his rehabilitation from a serious rugby injury, but such was his progress in the discipline that he competed in the September 2004 paralympics, using prosthetic titanium lower legs manufactured by a company in Iceland. He came first in the 200m. At the 2006 Athletics World Championships he won gold medals in the 100, 200 and 400m events and he remains the world record holder at all those distances for class-43 athletes. Pistorius asked to be considered for selection in South Africa’s 2008 Olympic squad in the 400m and in the 4 x 400m relay, using his prostheses but in all other respects running on equal terms against the other participants

'You Had Me at 'No capital Gains Tax on a Disposal'': Legal and Theoretical Aspects of Standalone Image Rights

This paper considers the provisions of the Guernsey image rights register, which came into being in 2012, alongside the image rights protections available in the EU Member States as revealed through a Commission-funded survey into the image rights of athletes. While it suggests several reasons for the limited popularity of the register and notes that the applicable regimes depend on whether violations are by third parties or by those with whom the performer is currently within a contractual relationship, it highlights the Guernsey scheme's potential benefits to performers, particularly in the field of tax planning, and makes suggestions as to how its relevance to them might be enhanced in the light of the Commission survey data and the applicable UK tax regime. By drawing on literature from masculinity and African-American studies especially, the paper also offers suggestions as to why performer endorsement is potentially so lucrative; but it also highlights some of the industry's negative effects and suggests that, while there is not a particular ‘problem’ of image rights violations within the Member States, discussions about the benefits of standalone image rights need to be informed by an awareness of these wider issues

England's Act, Scotland's Shame and the Limits of the Law

A chapter examining attempts to tackle sectarianism in Scottish football through the importation of English Football Banning Order legislatio

CAS 2016/A/4708, Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation

On first reading, case 2016/A/4708 Belarus Canoe Association and Belarusian Senior Men’s Canoe and Kayak Team Members v International Canoe Federation, award of 23 January 2017 (hereafter BCA v ICF) raises three familiar, deceptively simple, themes in anti-doping. Namely, the potential role of national criminal authorities in doping investigations; the relationship between those authorities and international sporting stakeholders; and the importance of those stakeholders adhering to their own rules when pursuing anti-doping allegations. This paper addresses those aspects in detail, but the case has a significance that goes beyond anti-doping. Specifically, BCA v ICF raises wider issues about anti-doping actors whose obligations under the WADA regime cannot be easily reconciled with their reliance on governments that use sports as a tool for cronyism and furthering political agendas. Such is the case in Belarus, where the relationship between a supposedly independent national anti-doping authority and an ignoble and unhappy regime appears uncomfortably close. These concerns are compounded by sports federations who are only too happy to let Europe’s last dictatorship host their international events

Flow of a thixotropic or antithixotropic fluid in a slowly varying channel : the weakly advective regime

A general formulation of the governing equations for the slow, steady, two-dimensional flow of a thixotropic or antithixotropic fluid in a channel of slowly varying width is described. These equations are equivalent to the equations of classical lubrication theory for a Newtonian fluid, but incorporate the evolving microstructure of the fluid, described in terms of a scalar structure parameter. We demonstrate how the lubrication equations can be further simplified in the weakly advective regime in which the advective Deborah number is comparable to the aspect ratio of the flow, and present illustrative analytical and semi-analytical solutions for particular choices of the constitutive and kinetic laws, including a purely viscous Moore-Mewis-Wagner model and a regularised viscoplastic Houska model. The lubrication results also allow the calibration and validation of cross-sectionally averaged, or otherwise reduced, descriptions of thixotropic channel flow which provide a first step towards models of thixotropic flow in porous media, and we employ them to explain why such descriptions may be inadequate