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?

Happy Mother's Day


[03/05/2009 1:58:39 PM]

sportsbabel says: please say thanks to your mom……!
sportsbabel says: you are our relation……
sportsbabel says: (smiley)

[03/05/2009 1:58:55 PM]

Multitude of Multitudes

If Hardt and Negri believe that the internet and immaterial production provide both affirmative and necessary opportunities for the constitution of the multitude in postmodern society, and if we further understand the internet as a "network of networks" linked by circuit and signal, sharing certain protocols but having unique configurations, then should we not also insist that the multitude is similarly a "multitude of multitudes"?

In this insistence of the materiality of the forms of communication and the respective interfaces that connect human bodies together, the sporting multitude emerges as one such potential multitude among others. The sporting multitude is unique in its constitution though networked with other multitudes, both formally, in terms of communication systems and politically, in the sense of a common struggle against the meshworks of Empire. Thus, while material and immaterial structures, leverage points, and conditions of possibility may be unique to a particular biotic component (cf. Haraway) of the broader multitude, there exists the strong potential for diffusion, drift or rhizomatic connection on the strategic plane between these networks, as well as the rational singular-plural interest to do so.

G+D: "This is how it should be done: Lodge yourself on a stratum, experiment with the opportunities it offers, find an advantageous place on it, find potential movements of deterritorialization, possible lines of flight, experience them, produce flow conjunctions here and there, try out continuums of intensities segment by segment, have a small plot of land at all times."

constancy, relationality, opportunity

The professional sport industry — particularly those leagues that comprise the upper echelon of the sports-media capitalist hierarchy — presents a paradox when viewed relative to the flows of capital in other sectors of the global economy. In other industries that require large investments in fixed capital, such as automobile production, plants have increasingly (and rapidly) relocated to countries and cultures in which the costs of variable capital are lower: all that is solid melts into thin air, only to condense and solidify once again in the global south.

In sport, however, the primary product being manufactured is the live sporting spectacle, with its affective experience of the crowd-as-number situated within the multisensuality of the stadium environment proper. It is easy to lose sight of the live event's primacy given the intensity with which the sports industry has initiated joint production processes to manufacture immaterial outputs further downstream, such as television broadcasts or fantasy sport data streams. But it is the live event that creates the paradox for sporting capital mentioned above: the plant of professional sports production — the stadium in its myriad forms — cannot simply relocate to where the costs of variable capital are the lowest precisely because the site of production is simultaneously the site of consumption for a live event, an inseparability that characterizes few other industrial sectors.

Yankee Stadium

While capital desires unregulated flow and the immaterial outputs of sportocratic production also have their own flows and rhythms, at a less complex level of assembly sports events flow to varying degrees as well. Baseball, for example, is a sport that does not flow to a high degree: it is a series of discrete actions — pitch, hit, throw, out or run produced — that are linked together in a form of mutual agreement between all those present. In other words, the structural elements of the game in the sense of codified rules (whether verbally agreed upon or highly codified in written form) facilitate what we might term a weak flow that emerges from the closed nature of the sport. Despite the weak flow that is produced, the discrete elements of the game provide plenty of signifying breaks that may be recorded as metadata about the live event action, which forms the scorecards, boxscores and other archives of the game.

Basketball, on the other hand, is a far more open-ended, flowing sport. Rather than a loosely connected series of discrete events, the action in a basketball game generally oscillates back and forth along the court surface in a fairly consistent rhythmical fashion. Roughly speaking, it is the peaks and valleys of the oscillation curve as it unfolds in linear time that become the events that are marked for the archive — shot attempted, basket made, steal or turnover. Put differently, it forms a strong flow from which signifying breaks have been extracted, in an inversion of the relationship described with baseball.

This means that an event such as a scored basket has as its primary relationality that of the flow. In a pickup game of basketball that relationality is complemented by the game score being passed from one player to another by word of mouth. As we move to more organized, league forms of basketball, the internal coherence or relationality of the flow is supplemented by an external scoring, legitimating and archiving apparatus (referees, official scorer and timekeeper, standardized records). It is this supplementary dimension that forms the basis of the downstream joint production processes mentioned earlier.

As the archival information is "liberated" from the productive energies of the athletes on the field of play, it then enters a constellation of differential signification and relationality completely detached from the flow of that particular game. The basket becomes an entry in a database that may form relationships with an overall "official" score, with other baskets by the same player, with a graphic overlay on a television broadcast, or with a consumer's fantasy league ranking. In baseball, with its weak flow of manufactured relationality, this liberation is not a particularly violent process, but in open-ended sports of strong flow like basketball the violence is far more pronounced.

Whether open or closed, the violence of the immaterial and its disruption of flux is most pronounced in the upper echelons of the sports hierarchy. This is due to the immense salaries that professional athletes are capable of earning — particularly relative to workers in other industrial sectors — as professional sport demands a highly specialist form of labour. Furthermore, the global competition for this talent has heightened dramatically over the past several decades as the number of consumer markets capable of sustaining a domestic professional league has expanded and the financial stakes involved in fielding a successful franchise have increased. Since the sporting capitalist is prevented from relocating the sporting plant to wherever variable capital is the cheapest, one must instead seek world-class specialist labour more cheaply from around the globe and bring it to the site of the stadium. We need only consider the examples of the English Premier League importing association football players from Africa, Major League Baseball importing athletic labour from Japan, or the Russian professional basketball league importing female players from the United States to realize how fully the migration of athletes permeates across sports, cultures, genders and economic vectors.

Given the fixed seating capacity of a stadium and the relative price elasticity of demand for sports tickets, the revenues required to cover rising salary expenses must come from elsewhere. One way of doing this is to increase the number of production runs at the plant, or in this case, to play more games. While there are usually more free dates at the stadium that could be used for live event manufacture, we cannot truly dissociate the athletes themselves from our understanding of plant in the sports industry.

As Michael Hardt has suggested, there is a dialectic between labourer and capitalist in which collective resistance by the former eventually leads to automation efforts by the latter. But professional sport resists such explicit forms of automation as robotic production since it is the athlete him/herself that is the object of fascination and desire. Instead, the professional athlete becomes a hybrid between labour and capital, with standardized techniques of discipline, expensive surgeries and other medical modalities such as oxygen chambers, as well as databased methods of probability and simulation helping to intensify production. Nonetheless, there remains a certain point after which the organic body provides diminishing returns in terms of the number of production runs (played games) completed by the firm.

Instead, we find that the sporting capitalist is forced to increase immaterial joint production efforts to cover these rising salary costs. While this doesn't explain the "origin" of immaterial output in the sports industry, it does provide us one way of understanding the intensity with which sign-value must be extracted from the immaterial. Put another way, the sporting capitalist requires a growing intellectual property (data-object) turnover ratio in order to maintain the same level of surplus-value earned over time. But it also suggests that the relationality of the data-object as it is violently detached from the site of sporting poiesis and entered into other sign systems must be targeted in any praxis by the sporting multitude, insofar as it simultaneously targets the alienation experienced by the consumer-worker, rather than solely that of the producer-worker.

morning contemplation

"Circulating is the first ethical act of a counterimperial ontology." — Michael Hardt and Antonio Negri
morning contemplation

???? jingshan park,
beijing, china
august 2008

The Peace Relay: A Proposal

The Olympic torch relay was begun at the 1936 Olympic Games as a means for the Nazi party to showcase the strength of the German fatherland and gain support for the regime. Since that time it has been, like the Olympics themselves, a more or less political exercise thinly disguised as an act of international solidarity. This politicization was taken to new levels this year as the Beijing Olympic Committee staged their torch relay on an unprecedented scale, traversing 137,000 km and six continents over 129 days and adding to the sponsorship of the relay itself by Coca-Cola a sponsorship of the torch proper by Chinese computer corporation Lenovo.

As Virilio notes: "[S]overeignty no longer resides in the territory itself, but in the control of the territory" (Life in the Wires: The CTheory Reader, p. 132). And furthermore: "Whoever controls the territory possesses it. Possession of a territory is not primarily about laws and contracts, but first and foremost is a matter of movement and circulation" (p. 128). Hence, when the torch passes through Tibet (Autonomous Region) on its way to the summit of Mount Everest, we are witnessing a unique moment of neocolonialism in the name of nation-state (China), transnational corporation (Lenovo) and supranational organization (IOC) — in other words, in the name of sporting Empire.

With this in mind, I would like to introduce a proposal for a different type of relay, free from the overt politics of Empire (though not free of politics), which I will refer to as the Peace Relay.


A certain number of relay batons (let's say 2,010 to stand against the upcoming 2010 Olympic Games in Vancouver) are given to selected runners to begin a road race. These are not ordinary batons, however, nor is this a traditional road race.

Traditional Road Race FormatFig.1. Linear vectors of force in a traditional road race format.

In a traditional road race, there is a start, finish, and a fairly linear trajectory that connects the two and channels vectors of force in a forward direction — it is a relatively striated space of sporting activity (see Fig.1). The starting gun begins competitive activity at a specific point, which then finds its terminus at some point in the future (this may in fact be a loop coming back around to the starting point). As described previously on sportsBabel, this structure spatially distinguishes between participants and spectators, which encloses the space and further feeds the former forward towards the goal orientation of reaching the finish line.

The Peace Relay takes this sporting structure as its conceptual foundation and subverts it in several ways. First, the relay has no finish line, which removes the goal orientation in traditional races described earlier. Because there is no finish line and no goal orientation, the requirement for a linear, mono-directional vector of force is eliminated as well. Where does one run when there is no finish line? Anywhere.

Contagion model of peace relayFig.2. Nonlinear vectors of contagion in the peace relay format.

So we have 2,010 runners, each with a baton and the freedom to move in any direction, which forms the basis of the Peace Relay as a potential for meme contagion. The batons are not simple track and field batons, but rather specially designed symbols to represent peace through athletics. When the run begins, each runner scatters in different directions with their own baton (see Fig.2). Each person might hang on to their own baton for a few days, displacing it from the location where it was initially received, but the understanding is that eventually every runner will pass their baton on to another runner. This person will be told how the relay works, be offered the choice of participation, and then will recite some version of the following before receiving the baton:

"I pledge to move the goal of peace forward in the world."

The sound of the starting gun symbolizes the violence that exists in the world, but also signifies the beginning of the Peace Relay and its embodied efforts to spread an idea. The absence of a finish line suggests that peace is ever elusive, endlessly deferred, continuously struggled towards. The baton is the vector of contagion that spreads the idea of peace from one runner to the next. And the open race course ruptures the barriers that keep us separated from one another, allowing the contagion to flow out into open smooth space. "Circulating is the first ethical act of a counterimperial ontology" (Hardt and Negri).

(Thanks are due to Elaine Ho, Barb Fornssler and Tom Kalin for their invaluable feedback.)