The Athlete's Right to Respect for His Private Life and His Home
Introduction Competition cyclist Andrej Kashechkin was caught on a charge of blood doping during an unannounced check on 1 August 2007 while holidaying in Turkey. On 31 August he was fired by his team Astana, after a countercheck also proved positive. The cyclist also faced a two-year suspension and an additional two-year Pro Tour suspension. He then laid a charge with the court in Liege (Belgium) against the International Cycling Union UCI. He maintained that carrying out a doping check during a personal holiday is a violation of human rights. Judicial testing against fundamental human rights rules, of the regulations which give sporting and anti-doping organisations the right to carry out doping checks outside the competition context, is vitally important. Should the court have found that the checks are a violation of a sportsperson's right to privacy, then one of the most important elements in the existing doping control system would have fallen away. Unfortunately the procedure met a premature end, because the Liege court declared itself to be unqualified to consider the issue for 'territorial reasons': the cyclist no longer lived in Belgium and the UCI's base is in Switzerland. It is anticipated that Kashechkin will launch a case against the UCI in Switzerland in the near future. Indeed, on the eve of the case in Belgium Kashechkin's lawyers indicated their willingness to proceed through to the European Court of Human Rights. The possibility of disturbing a sportsperson in his private life and home to take a doping sample, gives rise to a number of interesting questions. What follows will attempt to provide answers to the questions. The first issue which arises is the legal basis of such checks performed outside a competition context, and the status of the legal basis. If the basis resides in 'purely sportive rules', does the court then have the possibility to test the rules? Can it be taken as a point of departure that no single objective of the sporting sector can justify that the more fundamental social interests and rights of the sportsperson are violated? In other words: are the interests of the sporting world only related to the autonomous private rights, or are these interests subordinate to rules of the human rights treaties? If the answer to this is that the sporting world must step aside for fundamental human rights, the follow-up question must be whether the right the sporting world accords itself to carry out doping checks at the home of a sportsperson or during his or her holiday, is in conflict with basic rights. Finally there is the question as to whether in choosing to exercise a sport, the sportsperson has voluntarily renounced the protection human rights offers. The WADA and the World Anti-Doping Code The first World Conference on Doping in Sport was held in February 1999 in Lausanne on the initiative of the International Olympic Committee (IOC). The objective of the conference was to reach a common approach to the use of doping in sport. It was attended by representatives of governments, intergovernmental organisations and international sporting organisations. Setting up the World Anti-Doping Agency (WADA) was a direct result of this conference. The reason for calling this body into being was the assumption that the battle against doping could then be continued more effectively if the Olympic Movement (including the athletes) and the governments worked together. The collaboration established in the 'Lausanne Declaration' could be regarded as the first 'joint venture' between sporting organisations and governments. The WADA statutes established that it would be governed on equal terms by authorities and sporting organisations. (1) The IOC committed itself to funding the WADA until the end of 2001. From January 2002 sport and governments together would fund the WADA. (2) The WADA Draft Mission Statement declared: "The mission of the Agency shall be to promote and coordinate at international level the fight against doping in sport in all its forms; to this end, the Agency will cooperate with intergovernmental organisations, governments, public authorities and other public and private bodies fighting against doping in sport, inter alia, the International Olympic Committee (IOC), International Sports Federations (IF), National Olympic Committees (NOC) and the athletes". …
The Hybrid Character of WADA and the Human Rights of Athletes in Doping Cases (Proportionality Principle)
Generally speaking, what may be termed “sports law” consists of two parts, a public and a private one. The private part is formed by the rules and regulations of organized sport. Organised sport is built up of national and international organisations for each sport. The national associations are members of regional (continental) and universal, global and worldwide federations (IFs). From an institutional point of view, his part is hierarchically structured with - in association football - universal federations such as FIFA at the top and with UEFA as the regional organization for Europe. Besides, the Olympic Games which have an “omnisport” character, are organized under the umbrella of the IOC in cooperation IFs regarding the technical sporting aspects. The private part of sports law is the core part of this field of law, whereas the public one is of a non-systematic, fragmented nature. This part mainly consists of national legislation and a number of agreements under public international law (treaties) which relate specifically to sport. “Anti-Doping law” belongs to “sports law”. In the past, its private part was represented by national and international anti-doping regulations. With the introduction of the WADA Code in 2003 (WADA = World Anti-Doping Agency; officially, the correct naming is WAD Code (WADC), however, the Code is popularly known as and called WADA Code) this part was uniformised in one single international legal instrument. The public part consists of a number of national Anti-Doping Acts as well as two treaties which deal with the subject under consideration, that is the Council of Europe’s Anti-Doping Convention of 1989 (and its Additional Protocol) and the UNESCO International Convention against Doping in Sport of 2005. As far as disciplinary law is concerned, the (private) jurisprudence of the Court of Arbitration for Sport (CAS) plays a very significant role. The special characteristic of “anti-doping law” from an institutional, organizational perspective is the fact that national governments and intergovernmental organisations (IGOs) directly participate in WADA and the close linkage between the UNESCO Convention and the WADA Code. This issue will be discussed in detail in the first part of this article. The hot issue of the legal aspects of the fight against doping in sport is the relationship between “anti-doping law” and the human rights of athletes in doping cases, that is the applicability of general public human rights law to doping in sport . In the second part of the article a case of this type in which in 2009 this author was personally involved as a member of the appeals committee of the Instituut Sportrechtspraak [Netherlands Institute for Sport Adjudication] will be presented. The Appeals Board’s decision was finally submitted to the CAS which was and still is the first time in history with regard to a Dutch case. 2. WADA: a public-private body According to Richard Pound, Member of the IOC and the first Chairman of WADA, in 2002, the seminal event that led to the creation of the World Anti-Doping Agency (WADA) was the Tour de France in 1998. During the event, the French police found doping substances in the possession of certain of the teams and proceeded to arrest not only officials, but also athletes. The sight of athletes being led away by the police, to face possible criminal charges, was most dramatic. It also delivered a “wake-up” message to all other sports; if this could happen to one of the major European sports, in its showcase event, then it could also happen to them. The prospect of sport being governed by criminal law, with the concomitant intervention of the state, was thoroughly unattractive. The situation was compounded by remarks made by IOC President Juan Antonio Samaranch to a Spanish journalist during the same Tour de France, in which he speculated that the list of substances prohibited was too long and that, so far as he was concerned, anti-doping scrutiny should be limited solely to substances that were harmful to the athletes, regardless of their performance-enhancing capacities. This statement drew considerable media attention, much of which was to the effect that the IOC was going “soft” on drug use and that much of its previous rhetoric concerning anti-doping was nothing more than pious claptrap. This led Samaranch to call a special meeting of the IOC Executive Board in August 1998. During the course of discussions on the issue, a suggestion emerged that what was required, inter alia, was an independent anti-doping agency, that would be completely neutral in its activities and that would have a governance structure designed to ensure that no organisation or groups of organisations could control it. The model suggested at the meeting of the IOC Executive Board was that used in the resolution of sports-related disputes, pursuant to which the Court of Arbitration for Sport (CAS) is governed by the International Council for Arbitration in Sport (ICAS), an organisation made up of representatives of the IOC, the International Federations (IFs), the national Olympic committees (NOCs) and athletes. The effect of such a governance structure has been such that CAS has been recognised as an independent body by the Swiss courts. The IOC Executive Board also decided to organise a World
Initial Teacher Training: the French view
ABSTRACT This paper, against the background of trends in the development of initial teacher training in Europe as a whole, identifies and explains some of the recent, radical reforms which were introduced in France by a socialist government. These include the need to raise the status and the competence of the teaching profession; the creation of new teacher‐training institutions of university status (Instituts universitaires de formation des maitres); the introduction of common entry qualifications at degree level for both primary and secondary levels; the harmonisation and the extension to 2 years of the post‐degree teacher‐training course and the increase in emphasis placed on professional training, both theoretical and practical. These reforms provoked a storm of protest and an examination of the reasons for this reveals a multiplicity of crucial questions which have far‐reaching implications.