Does Sport law deserve a red card in the field of human rights?
By: Camille FONDA/ Master (2nd year) in International and European Law (Université Paris Ouest Nanterre La Défense)
Sport law constitutes a distinct system from national and international law. But when it comes to human rights, does sport law have to comply with the international standards or is it free from any obligation?
As a preliminary remark, it is important to note that sport law sometimes comes to support the implementation of human rights, particularly in the fight against discrimination in sport. Even if international law provides protection against discrimination, there are also effective instruments in the sport-related legislation such as the Olympic Charter and the Codes of ethics of some sport federations. The most important discrimination in sport remains racism and, and thus, it is actively fought by sport law. During competitions, most federations allow the referee to stop the match. Once the competition has ended, an athlete victim of racism can choose to go before the governing bodies of the sport concerned or before national courts. However; practice shows that most disputes concerning racism are settled before the former, proving that mechanisms implemented by sport governing bodies against discrimination are self-sufficient.
But the confrontation between sport law and human rights can also involve, to some extent, a breach of these fundamental rights.
The first issue concerns the way sport law regulates disputes settlements, particularly proceedings before the Court of Arbitration for Sport (CAS), although international law guarantees fair trial standards.
First of all, an athlete who wants to participate in a competition organized under the patronage of a sport federation, or of the International Olympic Committee (IOC), has to accept the arbitration clause that obliges him/her to go before the CAS if a dispute involving him/her occurs. This approach has always been justified by the need for a specialized tribunal, considered as more effective than a national tribunal. However, the “forced” arbitration seems far from the voluntary agreement specific to arbitration, and clearly questions the right to an effective access to courts.
Moreover, in anti-doping disputes, athletes have to prove that no prohibited substance entered their body. Usually, the CAS does not determine with certainty whether an athlete has used banned substances but only tries to establish that it was impossible that the athlete did not take the prohibited substances. The application of a strict liability rule in the anti-doping dispute clearly questions the principle of presumption of innocence.
The last controversial point about the CAS concerns its independence and impartiality. The first time the question was examined, the Swiss Federal Tribunal noted the economic ties existing between the CAS and the IOC, and held that greater independence between both institutions was needed. The question of this close relationship is currently raised before the European Court of Human Rights (ECHR). Another pending case before the ECHR involves an ex-footballer from Chelsea that claims a breach of the independence of CAS as the law firm where the president of the formation of CAS worked, represented the interests of the president of Chelsea.
The second main issue related to a potential violation of human rights concerns the intrusive anti-doping rules.
The World Anti-Doping Agency code, requires very confidential information on the athletes it supervises (place of living, training, competing) so that the athlete can be located for testing at any time. The athlete also has to be available one hour per day in case of a drug test.
However, private life is protected by Article 8 of the European Convention on Human Rights even if restrictions are allowed in a democratic society, particularly in an objective of protection of health. No general answer can be given on whether private life is breached by these rules: a case by case analysis must lead to an examination of the proportionality of restrictions. Another potential breach of human rights by these rules concerns the protection of freedom of movement protected by the European Convention, even if here again, restrictions can be made if it is necessary in a democratic society.
To conclude, when confronted to human rights, sport law seems to have two faces: one the one hand, in the fight against discrimination, it is an effective instrument of implementation, but, on the other hand, concerning legislation and proceedings enacted by sport organs, it seems often incompatible with international human rights standards.