Lex Sportiva and the State of Exception

At a recent conference critically reviewing Olympic reform actions over the past decade hosted by the University of Toronto, former International Olympic Committee Vice-President and World Anti-Doping Agency head Richard Pound questioned the emergence of a "lex sportiva." Such a rule of law particular to sport would govern in sporting contexts (international/global) while standing somewhat outside or at least with a very ambiguous relationship to the rule of civil law. In essence, the athlete — or at least a particular type of high performance athlete — becomes like a citizen of a particular sporting sovereignty. The figure of the athlete-citizen assumes the privileges and obligations of the lex sportiva upon entering the confines of the enclosed sports stadium.

The potential of a lex sportiva (it must be noted that its actual existence is a contested topic in the legal literature) becomes particularly interesting and important when uttered by the head of WADA, the most powerful anti-doping organization in the world and arguably the most explosive governing force of biopolitics ever created in short time. The World Anti-Doping Code outlines specific provisions for how the individual athlete may treat his or her own body in the course of preparing and training for competition. To a large degree these provisions have to do with the athletic as a distinct and discrete unitary entity: the athlete and his or her agents (coach, trainer, doctor) are by no means to transgress the boundaries of this unitary entity by adding or subtracting technological enhancements through the skin.

"The age of globalization is the age of universal contagion," contend Hardt and Negri, though in the case of contemporary high performance sport this contagion — referencing the fundamental binary of fair play — features pure bodies being contaminated by polluted bodies. The state of exception in the context of high performance sport and anti-doping may be described as WADA’s limited right to violate the sovereign organic unity of the athletic body from which the notion of fair play is partially derived. At a basic level, the relative constitution of competing athletes or teams must be based to the greatest degree possible upon symmetrical relations; any asymmetries arising in athletic competition must be grounded within the unitary athletic body in its genetic composition, refined through aptitude and hard work, and expressed through the poiesis of sporting performance. Substances, methods and other enabling technologies are permissible in this ethic of sport so long as they are supplementary to the organic unity of the athletic body and do not penetrate or pollute (Smith, 2008, "WADA as Sporting Empire: Prospects and Shadows").

The architecture of the sport stadium is no longer a discrete site of competition, however, but rather has become topological under the WADA regime. We must recognize this is because the state of exception in which the athlete-citizen stands at the fuzzy borders between lex sportiva and civil society has itself entered a transformational process in which said exceptionalism broadens to encompass all of that athlete's space and time. The state of exception becomes total, the state of competition becomes permanent. We find a resonance with the notion of exceptionalism put forward by Giorgio Agamben:

In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order. Hence the interest of those theories that, like Schmitt's, complicate the topographical opposition into a more complex topological relation, in which the very limit of the juridical order is at issue. In any case, to understand the problem of the state of exception, one must first correctly determine its localization (or illocalization). As we will see, the conflict over the state of exception presents itself essentially as a dispute over its proper locus (Agamben, State of Exception, p. 23).

Agamben makes it explicit that the state of exception emerges as much a problem of language as one of political philosophy. It is an obfuscation or a location of lacunae within language that allows for the subsumption of non-traditional "threats" under the banner of exceptionalism. In the short time since its inception WADA has created a sophisticated and systematic language to govern anti-doping efforts, a newspeak bathed in science and jurisprudence that channels the parameters of discourse in such a way as to make a lex sportiva and a potentially corresponding state of exception a reality.

Where the case of anti-doping and lex sportiva differ from a strict reading of Agamben has to do with the rights of the individual under exceptionalism. In his reading, exceptionalism is that which writes or refashions language such that particular subjects stand outside of any affirmative identity positions that would grant due process or basic human right (as, for example, with the "detainees" at Guantanamo). While process and right remain intact in the case of sport (the point is not to perfectly equate "athletes" with "detainees"), identity plays a similar role in the creation of the exception, albeit in a method of abstraction rather than erasure. By vectoring into the athletic body via urine, blood and DNA signifiers the sovereignty of sport and its system of lex sportiva supersedes the sovereignty of the individual human athlete and its living tissues. In doing so it uses these biological samples as linguistic markers by which the athletic body "speaks" to the adjudicating authority.

These markers of "objectivity" are numerico-linguistic registers on a database that stand abstracted and apart from the identity of the athlete and the particular social, cultural, historical and economic processes of individuation that created the current high performance context in which he or she competes. (In "Postscript on the Societies of Control" Gilles Deleuze refers to this rather as a process of dividuation.) The abstraction or "anonymity" (and thus confidentiality) of data becomes simply a euphemism suggesting that it will take some effort to link a numerico-linguistic biological sample to a particular indexed identity, for such testing in the absence of identification would otherwise be meaningless.

But this abstraction of identity or anonymity — not unlike in the case of erasure described by Agamben — also provides a veneer of authority (scientific in this case) to the state of exception that WADA and the lex sportiva operate within. This allows WADA an endocolonial right to penetrate the sovereignty of the athletic body, to keep live samples of it incarcerated for eight years, to force all disputes to be argued in its own particular newspeak, and the list is certain to grow. Ultimately, the question is one of power and resistance.

The essence of global sports law or lex sportiva is that it is an argument for self-regulation or for a private system of governance and justice. This raises the possibility that lex sportiva as a legal concept will be used to disguise fundamental issues of regulation. Lex mercatoria is a false analogy. Lex mercatoria is ultimately justified as a private autonomous global law because it rests on contract. Lex sportiva rests on a fictitious contract. Although the relationship between an international sporting federation and an athlete is nominally said to be contractual, the sociological analysis is entirely different. The power relationship between a powerful global international sporting federation, exercising a monopoly over competitive opportunities in the sport, and a single athlete is so unbalanced as to suggest that the legal form of the relationship should not be contractual. Rather like the employment contract, a formal equality disguises a substantive inequality and a reciprocal form belies an asymmetrical relationship. This inequality makes it misleading to use lex mercatoria as an analogy for the development of ideas about lex sportiva (Foster, 2003, Entertainment and Sports Law Journal 2(1), p. 15).

Put more simply, if global high performance sport is the only game in town, and the balance of power is overwhelming in the face of the athlete-citizen, then whence the opportunity for resistance? And further, if the state of exception becomes total, can it and the lex sportiva rationalize other power imbalances that involve a governing right of endocolonial passage into the sovereign individual human body?

Comments

4 responses to Lex Sportiva and the State of Exception

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  1. Ted says:

    Hey Sean,

    Can I get a copy of the Smith 2008 paper you cite in this post? Great great stuff…very interested to read it!

    Take care,

    ted

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