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". …
Effects of the EU Anti-Doping Laws and Politics for the International and Domestic Sports Law in Member States
Introduction It is generally believed that the greater the role of economic factors in sport, the greater the impact of law in sport. (1) This is also true of Community law. (2) In her speech delivered on 28 November 2003, Viviane Reding, then the EU commissioner for sports matters, announced that the elimination of doping in sport is to become one of the priorities in the Community's policy. (3) Such a declaration raises the question of the legal grounds that might lie at the EU anti-doping policy, or of the extent to which Community law might influence the anti-doping laws and regulations adopted by international sports federations, or of the relationship between WADA (World Anti-Doping-Agency) and EU policy, regarding the fight against doping going on today. Legal sanctioning of doping at the international level--historical background The battle against doping in sport that had been fought until late 1990s under the auspices of the International Olympic Committee was not successful. Poor international collaboration rendered the unification of procedures or jurisdiction impossible. (4) Despite the existence of an international legal document that addressed the problems of doping in sport, which took the form of the Anti-doping Convention of the Council of Europe No 135 issued on 16 November 1989 and ratified by the government of Poland on 1 November 1990 (5), it soon turned out that it was not an instrument capable of resolving the technical complexities (or technical problems) encountered in the fight against doping in sport. (6) The unquestionable advantage of having the Convention, however, is the fact that it triggered off mechanisms that broadened awareness of, and interest in the problem of doping in sport. (7) The impulse that had significantly accelerated the efforts to develop effective ways of eliminating doping worldwide--and therefore also within the Community--were the doping scandals that came to light during the Tour de France race in 1998, when substances known for their doping characteristics were found in the samples taken from the Festina team. It was then that both the Council of Europe and the European Union resolved to take measures that would decidedly fight doping in sport. At the Vienna summit in December 1998, the Council of Europe expressed its concern about the growing number and scale of doping scandals in sport. Those concerns were later reflected in the so called Community Plan to Combat Doping in Sport. That document had laid the grounds for a large-scale information and education campaign. The Council underlined the necessity of joint action at the Community level and obliged the European Commission to investigate the existing anti-doping laws in member states. (8) Further, basing on the opinion of the European Group of Ethics, the European Committee announced mobilisation of all Community instruments that might contribute to the elimination of doping in sport. At the same time it was agreed that the protection of sportsmen's rights was a higher goal of the world-wide anti-doping policy that should involve the harmonisation of doping rules and procedures, as well as disciplinary sanctions and the determination of a uniform list of illegal products and methods, giving priority to the health of the sportsmen through exercising anti-doping controls and checks also at times between competitions. The document failed, however, to specify on what legal grounds the European Union could base its intended action. Legal grounds of the Community anti-doping policy The EC founding Treaties and subsequent reforming treaties" do not contain any provision that would regulate stricte sports issues". Consequently, the classification of sport, and therefore the anti-doping policy as an area of EU activity, is not at all clear." Doping in sport is a multi-dimensional phenomenon and therefore the European Commission, in seeking to combat it, reaches for legal instruments which are also available in other policies. …
Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth
Our chapter concerns how legal process can lead to efficient policies for fostering innovation and growth. Future innovation will depend at least as much on how laws are made as on a priori analyses of the optimal content of those laws. Of particular importance is whether U.S. choice of law and choice of forum rules promote an efficient market for law. Our analysis supports three suggestions for improving the law to support growth. First, the rules governing the selection of the jurisdiction whose law governs productive activity can significantly affect growth and innovation. Second, any proposal aimed at increasing growth through a change in law or legal institutions should take account of the existence of multiple jurisdictions and parties’ ability to choose the jurisdiction whose law controls their transactions. Third, we suggest harnessing the power of jurisdictional competition among the states through a federal law enforcing contracting parties’ choice of law except to the extent states legislatively override the choice of law and regulate local transactions. We apply this analysis to several areas of the law that are critical to growth and innovation: non-competition clauses, business associations, the legal profession, internet law, insurance, property law, products liability, and franchise regulation.