Re-Thinking the Legal Regulation of the Olympic Regime Envisioning a Broader Role for the Court of Arbitration in Sport

Introduction The globalization of sport has shifted the legal regulation of the international sport system increasingly towards the private authority of international sport bodies, such as the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA), and international sport federations (IFs). (1) Nation states have accepted this regulatory autonomy by either refraining from enacting legislation governing national sport bodies, or adopting legislation that recognizes the almost exclusive authority of the IOC and IFs over national sport federations (NFs) and national Olympic committees (NOCs). Similarly, with respect to dispute resolution, the emergence of mandatory sport arbitration has substantially reduced the ability of national courts to intervene into sporting disputes. The effect of these developments has been to shield the autonomy of the Olympic sport system from regulation by national legal systems. From a legal accountability perspective, this self-regulation has significant implications where the rules and regulations of the IOC, WADA or IFs contravene fundamental principles of equity, fairness and respect for human rights, which are often enshrined in and protected by national law. This concern was realized in Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (Sagen), (2) wherein a number of female ski jumpers indirectly challenged the decision of the IOC not to include an event for women's ski jumping in the 2010 Olympic Programme. The athletes alleged that the IOC's decision was discriminatory and, therefore, any implementation of that decision by the Vancouver Olympic Organizing Committee (VANOC) would violate s. 15(1) of the Canadian Charter of Rights and Freedoms (Canadian Charter). (3) In many ways, the concerns associated with the globalization of the Olympic sport system mirror those that exist in other fields similarly affected by globalization, including security, environmental protection, banking and financial regulation, and internet regulation. Indeed, as Kingsbury and Stewart point out, the phenomena of globalization can no longer be effectively managed by separate national regulatory or administrative measures. (4) As a consequence, global regulatory bodies ... are either not subject to domestic political and legal accountability mechanisms at all, or only to a very limited degree. (5) This raises the question as to whether the current regulation of the international sport system is capable of ensuring that international sport bodies are legally accountable to those affected by their decisions--specifically, athletes. The purpose of this paper is to examine the regulatory framework of the international sport system; specifically, the 'Olympic regime.' In this paper, the Olympic regime describes a bifurcated system comprising the Olympic Movement and WADA. The paper is divided into four subsequent parts. Part one examines the Olympic regime as a private and autonomous system of governance that is not legally accountable to national legal systems. Part two examines Sagen from two perspectives to emphasize both the need to regulate the Olympic regime and the difficulties that arise when national courts are relied upon to assume this regulatory function. Part three explores other accountability mechanisms that have emerged to regulate the Olympic regime, and sets out a theoretical framework for a subsequent discussion of the role of the Court of Arbitration for Sport as a regulator of that regime. Finally, part four concludes with a perspective that the Court of Arbitration for Sport needs to play a greater supervisory role over the Olympic regime. The Olympic Regime and the Problem of Legal Accountability Despite its links to public authorities, the Olympic regime is, for all intents and purposes, an autonomous legal order. In other words, the rules and decisions emerging from the Olympic regime may be described as a system of private law-making that is independent from any single national legal system. …

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