David McArdle

National law, domestic governance and global policy: a case study of anti-doping policy in Slovenia.

This article examines the impact of global anti-doping initiatives on national sport policies and the role of wider national political and legal frameworks in facilitating compliance with them. The role of these frameworks in respect of ‘top-down’ sports policy scenarios – where sovereign states, sports organizations and individual actors respond to the policy obligations placed upon them by virtue of their acceding to international initiatives such as the World Anti-Doping Agency (WADA) Code or the UNESCO Anti-Doping Convention – is considered by reference to the ongoing development of anti-doping policy within the Republic of Slovenia. This article identifies various patterns of policy change which have occurred in the national context as a consequence of global policy initiatives and thus examines the relationship between a sovereign state’s particular response to global policies, the ostensibly binding nature of those policies and the role of national law in the relationship between them.

CAS 2009/A/1912–1913 Pechstein v International Skating Union

At the material time, Claudia Pechstein was a 37-year-old German speed skater who in a long and distinguished career had taken part in five Olympic Games, where she obtained five gold and two bronze medals, and won several World, European and National championships. In short, Pechstein was one of the most successful winter sports athletes of all time. In the period between 4 February 2000 and 30 April 2009, Pechstein underwent numerous in-competition and out-of competition anti-doping tests. None of these tests resulted in a positive test or an adverse analytical finding. During the same period, the International Skating Union (“ISU”) collected more than 90 blood samples from Pechstein as part of its longitudinal blood profiling programme. Towards the end of the period, some of the Pechstein’s blood screening results began to show an irregular and abnormal pattern, outside of the accepted ISU-mandated parameters. Consequently, in March 2009, the ISU accused Pechstein of having used some form of blood doping constituting an anti-doping infraction under applicable ISU Anti-doping rules (rules which were said to be in conformity with the World Anti-doping Code). A subsequent ISU Disciplinary Commission found Pechstein guilty as charged and inter alia imposed a two-year period of ineligibility. On 21 July 2009, Pechstein, as supported by her national federation (“DESG”), filed statements of appeal with the Court of Arbitration for Sport (“CAS”), and a hearing took place in Lausanne on 22–23 October 2009. Central to Pechstein’s challenge, and to the import of this case as a whole, were arguments surrounding the credibility, reliability and legality of longitudinal blood profiling as a means of anti-doping control. The CAS Panel, bearing in mind the seriousness of the allegations and based on an extensive review of the scientific evidence, found that the ISU had discharged its burden of proving to the comfortable satisfaction of the Panel that the athlete’s abnormal blood values could not be reasonably explained by any congenital or subsequently development abnormality but must have derived from the athlete’s illicit manipulation of her own blood.

Fear, Loathing, and Empty Gestures: UK Legislation on Sport and the Transgender Participant

The Gender Recognition Act 2004, s.19—which sought to restrict transgendered persons’ opportunities to participate in sports—was never argued before the courts of the UK before being repealed by the Equality Act 2010. The 2004 Act had sought to ban participation of transgendered persons in sports if their involvement was not conducive to either ‘competitive fairness’ or ‘safety’. This chapter explores the legal difficulties that were always bound to exist in enforcing a prohibition on either ground. It considers the relevant medical literature and fundamental legal principles that are common to most European jurisdictions in order to illustrate the difficulty of introducing lawful, effective constraints on transgender participation, and argues in favor of inclusivity for all sports participants.