A fierce critique hitting wider than intended (?), but not as hard

Mikael Hansson
School of Law, University of Gothenburg

Gender, Athletes’ Right, and the Court of Arbitration for Sport by Helen Jefferson Lenskyj is issued in “Emerald Studies in Sport and Gender” – yet another series related to sport and law. The series was started in 2018 by the release of this book, and it is still the only title in the series, of which Jefferson Lenskyj is editor. Quite a large number of publications in her extensive list is about themes resembling or connecting to the themes in Gender, Athletes’ Right, and the Court of Arbitration for Sport.

The book is divided into two parts, each consisting of two chapters. The first part (55 pp.) deals with procedural issues mainly related to the Court of Arbitration for Sports (CAS). Jefferson Lenskyj poses criticism on the composition of the Court, mainly based on the arbitrators in many cases being not independent or impartial enough to guarantee the athletes interests being sufficiently safeguarded in relation to the other party (often a national federation for sport). The main arguments for settling disputes in arbitration instead of in courts – speed, special knowledge and confidentiality – works, according to Jefferson Lenskyj’s analysis, mainly in favour of the athletes’ counterparts’ interest rather than the athlete they purport to protect.

The second part (90 pp.) is dedicated to the “The War on Doping” and “Doping, Genes and Gender”. Criticism based on gender is in focus in these chapters, though it also consists of criticism on race and on the CAS treatment of allegations of athletes’ “disreputing” sport. The latter may be difficult to connect to the issue of doping, but it does quite well fit into the theme of part II if understood as issues of normality (not just in regard to bodies, performance and gender, but also of behaviour).

I may be disqualified as reviewer of the book, since Jefferson Lenskyj in the introduction declares that she addresses the issues in the book “as a sociologist and feminist scholar, but not, I emphasize, as a legal scholar” (p. 3). Thus, it may be unfair for me to read the book as the legal scholar I am. It does not, however, make me feel unsuitable or out of place as a reader, and I do not think anyone would – at least not based on their profession.

The criticism Jefferson Lenskyj puts forward is clear enough, as well as the narratives and counter-narratives she presents. They are mainly built up by reference to a number of cases tested by CAS and other instances. The cases used are not presented as judicial stories with the legal question in centre, but as human stories with the athlete in centre. The technique does provide body and soul to the text, and it does contribute to the image of the lone athlete competing against the much larger system. It does however deprive the cases of details, leaving the reader to rely Jefferson Lenskyj’s analysis, which is often concluded in short statements that differences between the facts in two cases were insignificant and thus unfit for explaining differences in outcome. With those details provided the book would have been longer and more technical, but providing details would have given the reader a chance to assess the criticism. It may also, at least to an extent, have diminished a (presumably) unintended effect of the setting with the human being in focus – the violation (as presented) is somehow repeated. The undisputed status as victims ascribed by the narrative adds to the effect.

That means replacing the inner logic of what is criticised with the logic of the criticiser – an operation ultimately aiming not at understanding but at forcing one’s own rationality upon the studied object.

Jefferson Lenskyj primarily aims her critique at what she calls sport exceptionalism. And for good reasons, it seems – her analysis points at CAS (et al.) promoting sports governing bodies interests at the expence of individual athletes’ human rights. She ends the book, as to make her point even more obvious, with an analogy to artists’ rights, that it would not be accepted to have disputes between artists and their principals be settled by arbitrators connected to the governing bodies interests, moreover based on mandatory arbitration clauses. The example, however, raises suspicions – it is a little too obvious. It could just as well be that artists (as well as musicians, for that matter) do not have access to justice at all, not even through a channel for their claims in an arbitration court who’s loyalties and impartialness can be questioned: and perhaps athletes’ actually are better off in that sense (which is not to say that all is well).

Jefferson Lenskyj may underestimate the force of the private law logic of a contract conferring rights and obligations upon its parties. Without further ado, she rejects the argument that though everyone is entitled to respect for human rights such as the freedom of speech and the right to a fair trial in regard to one’s civil rights, it is not a human right to participate in a certain contest (such as the Olympics). Of course, that argument can and should be questioned and discussed, but the logic it expresses cannot simply be disregarded in one sentence. That means replacing the inner logic of what is criticised with the logic of the criticiser – an operation ultimately aiming not at understanding but at forcing one’s own rationality upon the studied object. The sense that the book is, and therefore must be read as, more of a contribution to a debate than a study (regardless of the name of the series) is emphasised by for instance the use of “mainstream media” without references or specification, indicating a profession’s unintentional involvement in what is undisputable wrong.

Moreover, I am left with a feeling that Jefferson Lenskyj in her criticisms of sport exceptionalism is overemphasising ordinary courts and their use of procedural principles as guarantees for justice (whatever that may be). The critique relies on the assumption that procedural principles such at the right not to incriminate oneself (presented as an outcome of the right to silence) would be better safeguarded in ordinary courts. While independency and impartiality may be a more acute issue in arbitration as compared to litigation in courts (arbitrators are, in other disputes as well as in sport disputes, chosen for their specific knowledge of a certain field of law and thus to their connection to that field and its institutions and practitioners), the access to justice thru ordinary courts is in practice related to resources in terms of access to knowledge and competent assistance. The critique may also overemphasise the specificity of sport. Law is divided in more or less established subspecialties, while at the same time still being “law”. Jefferson Lenskyj has, it seems, discovered the hermeneutic character of law, but her conclusions is resting on comparisons with other field that does not do the object used for that comparison justice (a common and almost unavoidable effect of comparison, but the critique could have been nuanced from that perspective).

It may be my reading (unjust) as a lawyer, and thereby as a part of what Jefferson Lenskyj is criticising – a critique that, whether intentional or not, not only hits CAS and arbitration in sport related matters, but modern law in general. Interestingly enough, what may appear as a weakness in that the critique fails to convince in all detail, being a tad too angry and a tad too convinced, is also a strength in that it serves as a critique of law in general. By being narrower than intended, the critique is thus wider than intended. I have no doubt that Gender, Athletes’ Rights, and the Court of Arbitration for Sport is well worth reading from any other perspective than a lawyers’ as well, but regardless of the perspective I do think it should be read from a critical standpoint. A good critique deserves to be seriously criticised.

Copyright © Mikael Hansson 2020