'Rules of the Game, Gaming The Rules' by Bruce Baer Arnold in Miroslav Imbrišević (ed), Sport, Law and Philosophy: The Jurisprudence of Sport (Routledge, 2023) comments
Competitive sport, just like law, is a matter of identity. The centrality of identity results in rules about who gets to compete and therefore who gets rewarded through medals, public recognition, sponsorship and other benefits. As a consequence it results in imperatives for subverting requirements about identity, for example through changing nationality (something encouraged in some national sports policies), through impersonation (‘ring ins’) and use of prohibited substances to illicitly boost performance contrary to notions of fairness.
That subversion of requirements in turn results in policing, centred on the verification of identity claims regarding nationality, gender, status as an amateur (‘shamateurism’), age or freedom from substances that have not been used by a competitor’s peers. Policing of subversion, and more broadly the administration of sport, is a matter of authority. That authority is the entitlement to do or demand of others certain things by virtue of the role as a referee, sports administrator or government official. Just as competition can be understood as matter of rules about who has the identity that enables participation as a competitor, the governance of sport is intelligible as rules about who gets to make and implement rules regarding sport. Both are analogous to H.L.A Hart’s conceptualisation of primary and secondary rules (Hart 1994).
This chapter construes professional and quasi professional sport (such as the national football and basketball leagues, the Olympics, America’s Cup and Tour de France) in terms of rules about identity. It suggests that the creation, subversion and policing of identity in sport through the articulation and implementation of rules results in a jurisprudence that offers insights about sports law per se: what has been characterised as the lex sportiva (Kolev 2012; Beloff 2012). That jurisprudence more broadly offers insights about the nature of identity as an artefact in law, something that can be understood through lenses provided by justice theorists such as John Rawls, Alan Gewirth and Martha Nussbaum rather than merely rules theorists such as H.L.A. Hart, Hans Kelsen and contemporary scholars such as Schauer.
From an identity perspective the lex sportiva provides a lens for considering the nature of rules in legal systems, including questions of authority in the making, day by day enforcement and contestation of rules. Some judicial decisions in the lex sportiva for example deal with disputes about process, including what is acceptable evidence in a claim that an identity has been subverted through doping or that individuals such as Caster Semenya and Billie Jean King have been improperly allowed to compete contrary to rules restricting participation to people with a specific gender. Some are matters of disputed norms regarding bodies and behaviours, where there may be conflicts between sports law as private rules and state law (Di Giandomenico, this volume).
Such disputes can be understood in terms of Hart’s emphasis on rules of recognition and adjudication, founded on identity rather than morality (Hart 1994; Hart 1958). They can also be understood in terms of expectations regarding the public and private spheres, with public law potentially reshaping private rules to address concerns relating to safety, discrimination and exploitation by oligopolies.
The theorists also offer insights about how and why we value ourselves, others and legal frameworks that create/enforce identities. Nussbaum, Rawls and Gewirth offer a jurisprudence that allows us to evaluate rather than merely taxonomise the working of the lex sportiva and the rules of each game (Nussbaum 2006; Nussbaum 2011; Rawls 1971; Rawls 1999; Gewirth 1998). That evaluation emphasises fairness, aspiration and encouragement of flourishing. Their view of justice is antithetical to a ‘winner takes all’ ethic that fosters both the rewards and subversion noted above. The view values participation in sport and achievement of excellence that is not determined by blood substitution, performance enhancement drugs or other mechanisms for cheating. It questions the fairness and thence legitimacy of rule makers that are tainted by corruption or indifferent to harms such as concussion-based injury and sexual abuse by competitors, bringing the rules and the sport into disrepute. It more subtly involves disquiet about rules of a game in which participants in search of rewards accept rules and integrity mechanisms that erode the dignity attributed by liberal democratic states to all humans.
This chapter begins by characterising identity: a status under a sport’s rules (and more broadly under public law) that is typically signified by identifiers. It then discusses the centrality of identity for sport, including the identity of sportspeople and the identity of the institutions or individuals that make the rules. That discussion is applicable for understanding other fields such as the professions and, more broadly, citizenship as a status that embodies rules regarding reciprocal rights and obligations. It argues that rules regarding identity in professional sport frame the achievement of rewards, including benefits for those who play and those who manage the rules.
The chapter next examines the subversion of identity and thus subversion of rules regarding identity, for example a competitor gaining an illicit advantage by using a prohibited substance and thereby breaching rules regarding non-use of such substances. Unsurprisingly, where there are rewards and where people may consider that achievement is imperative some people will choose to break such rules and on occasion subvert rules that are meant to detect illicit performance enhancement, for example to defeat substance-detection tests by swapping urine. Legal systems are typically responsive and the administration of rules regarding identity in sport is no exception. The chapter accordingly discusses both rulemaking and practice that seek to detect and deter misrepresentation of identity, for example through testing for performance-enhancing substances.
The chapter concludes by looking beyond Hart’s concern with rules as a matter of form, arguing that we should further assess sport through reference to a fairness that encompasses dignity and autonomy (Hart 1994; Rawls 1964; Rawls 1971).
