Human Rights and the Anti-Doping Lex Sportiva— The Relationship of Public and Private International Law

 

Andrew Byrnes, ‘Human Rights and the Anti-Doping Lex Sportiva— The Relationship of Public and Private International Law, ‘Law Beyond the State’ and the Laws of Nation States’, Chapter 5 in Ulrich Haas and Deborah Healey (eds), Doping in Sport and the Law (Hart Publishing, 2016) 81-104

Abstract

The exercises of regulatory power that take place under the sports anti-doping regime have a significant impact on the lives of individual athletes and those associated with them. The regime engages many human rights: not only work-related rights, but also the right to respect for private and family life, the right not to have one’s reputation unlawfully or arbitrarily interfered with, freedom of association, the right to equality and non-discrimination, and a range of procedural rights (including the right of access to a court and a fair hearing in the determination of one’s civil rights and obligations and subsidiary aspects of those rights). In some cases the regime may involve the exercise by state sporting or anti-doping authorities of coercive investigative powers more familiar from the investigation of serious criminal offences.

This chapter explores how human rights standards affect the exercise of power by those who decide whether or not a person should be permitted to engage in or to continue engaging in sport because of alleged or proven doping. It examines the ways in which human rights norms have entered into the anti-doping regime. Its focus is not primarily whether particular regulatory rules or procedures are (in)consistent with substantive human rights guarantees. Rather its concern is with the way in which the direct and indirect application of human rights are facilitated or impeded/resisted by the legal structures on which the anti-doping regime is built. In this field systems of State law both carve out an area for the operation of an area of private globalised law, yet still control that activity by policing the boundaries of that ‘autonomous area’. At the same time those engaged in setting the standards of that privatised area have chosen to explicitly import certain human rights values, partly for policy reasons, partly for strategic reasons, as a means of protection against incursion into their decision-making processes. By taking over the task of policing the implementation of public law values, the regime limits the occasion for the intervention of external assessors of human rights compatibility, reducing their role to patrolling the outer limits and thus ensuring considerable deference is shown to those with sports expertise.

Andrew Byrnes is the Chair of the Steering Committee for the AHRCentre.