"A plea for a new legal structure for the industrial organisation of sports"

Presentation by Drs. Paul Ruijsenaars

At the Conference PLAY THE GAME 2007: 'Creating coalitions for good governance in sports'

October 2007

Your honour,

No, I made no mistake. My speech will be a plea. A plea in this courtroom. You, the audience, you are the jury. You have to decide whether I’m talking nonsense, when I am in favour of breaking down the legal system on which the hunting of alleged doping offenders is based, and from which mediaeval regulations have blossomed. You have to arrive at a verdict, today!

My plea is not about a ‘yes or no’ on biological passports, about 1000 or 7000 controls, about whereabouts, etc. My plea is about the legal system underlying all these regulations. My plea is totally in line with the goal of this conference: to create a new coalition with a strong international union of athletes, to realise good, modern, democratic governance in the industrial organisation that sports are, nowadays. I want you, the jury to reach a verdict today!

1.            Introduction

I played international basketball for the Netherlands. In the late sixties and seventies I played 25 caps. I know from personal experience that elite sports in themselves are unhealthy. They form an irrecoverable attack on the body of the athletes. On the other hand, sport gives a lot of return on investment! My love affair with basketball from my 11th until my 35th was of great influence on the development of my personality. If there had been no basketball in my life, I wouldn’t have been in this courtroom, your honour.

I’m a social psychologist. I also worked as a therapist for drugs and alcohol addiction. I concluded: (in the 80s and early 90s) ‘better care is taken of addicts than of athletes in trouble.’

In 1995 I started my own practice as a consultant in intense interdependencies in sports and in industry.

And I have to add to this summing up the 6 years as a volunteer board member in Proprof, a Dutch union for professional football players.

2.            Victories in courtrooms

The Conference organisation devised a tricky theme this year: the theme ‘Chasing clients or providers: Anti-doping at a crossroads’. Making a choice at a crossroads on a flat planet would make a difference. But since we live on a round planet, in the end a choice for whatever direction leads to the point where you once started. In the worst case you shoot yourself in the back. History gives us lots of examples why chasing or prohibition has in many cases led to aggravation and nasty side effects.

Your honour,

Organisers of cycling events present themselves as moral crusaders, claiming that if they come to power or remain in power, an atmosphere of purity will be created. The latest Tour de France and the OC of the WC Cycling in Stuttgart offered a taste of the meaning and consequences of this ambition. The exclusion of Bettini from participating in the World Championship is probably the most illustrative example of the cruelty that comes with this so-called 'purity'. His successful fight against the OC was his first victory in Stuttgart, winning the gold medal his second. His gesture while passing the finish line and his attitude towards doping and doping hunters is an example for all who have sport in their hearts.

The abuses described here are not limited to cycling: all athletes are in danger of being treated that way. Athletes Play The Games on courts, but these days the victories sometimes do not lie at the finish of their courts, but in courtrooms.

Now I have a question for Mr Pound, present in this conference as keynote speaker: as a lawyer you have to deal with these two different legal systems. On the one hand there is the modern system that you know as a lawyer in the law firm you work for. And on the other hand there is the legal system in sports. Which one do you prefer? Because there is a difference of about 800 years between those two systems.

I hope to hear your answer tonight in your speech…

3.            Inquisition

In my handout (article in International Sports Law Journal 2007/3-4) several reasons are summed up that reveal the mediaeval essence of the legal system for doping regulation.

In the past few months people sometimes said to me: “you have a point, doping authorities exaggerate, but don’t make it so emotional with that inquisition crap”. For normal people the word ‘inquisition’ sounds like an emotional accusation. However, it is not emotional at all! Our manifesto is an analysis of the legal system underlying the exaggerations in regulations. That’s why a respected institute like the Asser Institute will publish our manifesto in its next November edition. (Slide of the elements)

Let me go into some of the characteristics of this mediaeval legal system, in which the top athlete is a citizen without any rights in the field of doping. The way in which he is treated violates fundamental human rights. There is no precise jurisprudence because of the illegal entwinement of the functions of law maker, law enforcer and judge, so no trias politica. The obligation of top athletes to make themselves available to inspectors all over the world is disproportionate to the nature and extent of the doping problem. For top athletes, there is no privacy; by definition they are suspects. The presumptio innocentiae does not exist: people are guilty in advance and in case of doubt one must prove one's innocence. And on this weighty note: “in dubio pro reo” is never permitted in the procedures and that also applies to “ne bis in idem” (‘strict liability’: no defence possible). Any mitigating circumstances or other nuances are excluded from the judicial proceedings. The discrepancy between punishment and offence also belongs to this summary. A long-term Berufsverbot (restraint of trade) is the imminent penalty which for many athletes means the end of their chosen career.

All these are elements of a legal system from a dark past. In a way it is amusing to watch the sports authorities fight desperately for upholding that archaic and exceptional system in the European courts. Nowadays elite sports are a multibillion euro industrial activity. Nevertheless, sports authorities still keep on trying to neglect the regulations of the European Court, claiming an exceptional position. Even Microsoft had to accept last week that monopolistic autocratic conduct is not tolerated in modern, western economic regulations! But the leaders of sport organisations think they have better arguments than Microsoft…

The above-mentioned elements of an inquisitional system are all rather juridical. We didn’t mention in our manifesto the phenomenon of the presence of the modern inquisition we discovered afterwards, when we started contacting people to ask them for their opinion on our manifesto. And that phenomenon is very recognizable for every citizen. We mentioned people in high ranks of society, of sports organizations, in universities, and also athletes in representative committees, who reacted, saying: ‘a very good initiative, I support your manifesto, but I can’t go public with my opinion, because that would harm my position.’

Mr Pound. What do you think about that? People who dare not use their freedom of speech, their freedom to say what they think about the WADA Foundation’s law system?

You must be disappointed, because the WADA Foundation is proud of its own regulations. The WADA Foundation says: ‘An overwhelming majority of the athletes supports our war on doping’.

My question to you, the jury is: “Isn’t it strange, with all that support, that Sporters, being the ultimate subjects of the regulations and sanctions of the WADA, are put away in committees, and are asked to give recommendations/advice to the board. Why is the WADA so afraid to put sporters in a modern co-management position?

Why is it that the WADA doesn’t give 50% of the chairs in its boardroom to the athletes?

Why is it, members of the jury, that the WADA sticks to its undemocratic structure?

4.                 WADA: undemocratic legal form

The WADA is a private-law foundation. By definition, this is an undemocratic legal form: the athletes, who become subject to the regulations of the WADA, are, either directly nor via representation members of this organization in a controlling body. This is the fundamental difference between a foundation on the one hand, and an association or a corporation on the other hand. We are dealing with an undemocratic legal structure – in other words: the lack of influence of the people whose interests are affected by the WADA. The monopolistic position of the WADA puts a very serious responsibility on the WADA to avoid autocratic conduct.

In the introduction of the WADA Code we can read:

"The purposes of the world anti-doping program of the WADA and the Code are:

- to protect the athletes’ fundamental right to participate in doping-free sports and thus promote health, fairness and equality for athletes worldwide, and

- to ensure harmonised, coordinated and effective anti-doping programs at the international and national levels with regard to detection, deterrence and prevention of doping.

Being a body without democratic control, which is at the same time a monopolist, the WADA should really stick to its Object while using its enormous legislative and executive powers.

There lies a very serious threat for the WADA. Indeed: doping is not merely a substance on a list, supposed to enhance performance.

5.            Doping hunting: image enhancing

Doping has become a great instrument for image building! No, not for the athletes! I mean for countries, for cities, for millionaires, since sport has become a great opportunity for them: they use sport as the platform for their own worldwide television exposure. Organisations like the ASO, but also the UCI and the IOC and civilians like the mayor of Stuttgart, and even some media like the ZDF use doping to show the world: “I stand for purity, for ethics. Look at me: example and champion of a new pure order in sports.”

Apart from image reasons another threat for the WADA is, that parties are using doping for political reasons. For example: governments are misusing the list for political reasons, especially national policies on drugs prohibition. The WADA  should eliminate non-performance enhancing pharmaceuticals, which include innocent medicines and recreational drugs, from the list of prohibited substances. Listing these substances is beyond the WADA's – self-created power or, in legal terms, "ultra vires".

We have witnessed how, under the aura of ‘health, fairness and equality’, doping hunting is misused for commercial and political image goals.

The Dutch Professor Heiko van Staveren has pointed out recently that there is quite a lot of hypocrisy in that WADA Object of ‘health, fairness and equality’. I will not go into that, here and now.

6.        Sport: industrial organisation in democratic society

Conclusion. The WADA should seriously reconsider its position, because other stakeholders misuse the object of the Foundation for their own image. The WADA itself claims to be the purest of them all.

Some words about that ‘new’ word ‘purity’. Also a word from the dark past. In those days the inquisitors were only responsible to God, for their judgements and verdicts of their purity against heresy. The modern inquisitors are self-appointed, refer to their personal interpretation of ethics and sports. This is not restricted to sports; we see the same in politics.

The legal system is the expression of the values societies stand for. They are the ethics and purity of modern society. Instead of respecting these - our! - ethics, the new inquisitors want to impose their self-chosen purity.

Democratic societies have industrial organisations with industrial councils, in which employers and employees have equal representation. Elite sports are industrial organisations, a lot of money is involved, several stakeholders have their own interests. Worldwide, all organisations which represent sports in some form or other seem to have forgotten that sport has begun with sportsmen and sportswomen, which then spawned the need for associations, umbrella organisations and event organisers. Furthermore, the competition between these bodies to be or become the biggest, most powerful and richest has created an unhealthy rivalry which has relegated the interests of the athletes in question to the background. The fact that, for example, without athletes the IOC, ASO and UCI would be redundant, is no longer realised in these circles. Top athletes concerned should also draw this rather simple conclusion. They are the most important party to shape the top sports sector. Bettini acted in this vein!

A strong international union of athletes should claim a modern co-management position in all of these representing sports organisations as in the WADA, to create a modern legal structure for regulating and sanctioning the use of doping. That will be a genuine, new coalition, to realise good, modern, democratic governance in the industrial organisation that sports are in this day and age.

Has the jury reached a verdict!