Horses for Courses’: an Analysis of Equine Sports Regulation and Disciplinary Procedures Regarding the Non-Human Athlete
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‘Horses for Courses’: An analysis of equine sports regulation and disciplinary procedures regarding the non-human athlete Jonathan G Merritt De Montfort University Submitted for the award of PhD in Law October 2017 This thesis has been professionally proof-read by: Mr Lee Siggs T/A Skribo 82 Brooklands Crescent Sheffield South Yorkshire S10 4GG Email: [email protected] This has been carried out in accordance with DMU PG Regulations. 2 | P a g e Ode to the Horse Where in this wide world can man find nobility without pride, friendship without envy or beauty without vanity? Here, where grace is laced with muscle, and strength by gentleness confined. He serves without servility; he has fought without enmity. There is nothing so powerful, nothing less violent, there is nothing so quick, nothing more patient. England’s past has been borne on his back. All our history is his industry; we are his heirs, he our inheritance. The Horse! Ronald Duncan (1914-1982) Prison Notebooks Is it better to work out consciously and critically one’s own conception of the world and thus, in connection with the labours of one’s own brain, choose one’s sphere of activity, take an active part in the creation of the history of the world, be one’s own guide, refusing to accept passively and supinely from outside the moulding of one’s own personality? Antonio Gramsci (1891-1937) 3 | P a g e 4 | P a g e Contents Chapter 1 – Introduction 15 1.1 The genesis of the study and the uniqueness of the human–equine team 15 1.2 Watershed 22 Chapter 2 – Methodology 24 2.1 The importance of the right methodology 24 2.1.1 Primary research in the field versus a doctrinal Study 24 2.1.2 Socio-legal research 27 2.1.3 Why Gramsci? 32 2.2 Research Question 36 Chapter 3 – Literature Review 38 3.1 Introduction 38 3.1.1 The Equine Lacunae 38 3.1.2 Gramsci in sport so far 44 3.2 Original contribution to the body of knowledge 46 Chapter 4 – The new social construct, the horse qua non-human athlete 48 4.1 Why re-imagine the horse? 48 4.1.2 The horse and society 49 4.1.3 The early historical context and the birth of the special relationship 50 4.1.4 Horses and humans, partners in industrial and commercial development 51 5 | P a g e 4.1.5 The horse and culture 52 4.1.6 Horses and language 54 4.1.7 The horse constructed as a quasi-human comrade in arms 55 4.1.8 The ‘Special Relationship’ in social science research 57 4.2 Conclusion 58 Chapter 5 – Problematising the governance of equine sport 60 5.1 Structures, fractures and the interface problem 60 5.1.1 The Fédération Equestre Internationale (FEI) 61 5.1.2 Horse racing 62 5.1.3 Polo 62 5.1.4 Non-FEI western riding 62 5.1.5 Minority equestrian sports 63 5.2 What does lex sportiva matter to horse sport? 64 5.2.1 Are sporting rules ‘soft’ or ‘hard’ law’? 68 5.2.1.1 Sport and EU law 71 5.2.2 Concluding the ‘soft vs hard’ debate 74 5.2.3 The coherence of equinae lex sportiva jurisprudence 75 5.2.4 The Court of Arbitration for Sport 76 5.2.5 CAS ‘jurisprudence’ on equine sport 78 5.2.6 The influence on CAS ‘unaffiliated’ SGBs 80 5.3 Crisis? What crisis? 92 6 | P a g e 5.3.1 Can the status quo address cheating? 97 5.3.2 The spread of spot betting 97 5.3.3 Endurance, horse racing and the interface problem 102 5.3.3.1 Persons sanctioned by the FEI 103 5.3.3.2 Persons sanctioned by the BHA 105 5.4 Conclusion 107 Chapter 6 – Problematising strict liability and the current rules of evidence 112 6.1 The particular inequities for equine sport 112 6.1.1 A critique of strict liability and certain rules of evidence generally 112 6.1.1.1 Strict liability is a protection of scarce Resources 113 6.1.1.2 Strict liability and stigma 115 6.1.1.3 Strict liability and the theory of deterrence 118 6.1.1.4 Strict liability, a comparative view 118 6.1.1.5 The fate of English criminal law reverse Burdens in ECHR jurisprudence 120 6.1.2 Strict liability/presumed fault in equine cases 122 6.1.2.1 The contractual argument 122 6.1.2.2 The science 124 6.1.2.3 Practicality and resources 127 6.1.2.4 The moral stain of cheating 128 6.1.2.5 Health 131 7 | P a g e 6.1.2.6 The protection of sport and sporting ideals 132 6.1.2.7 Differentiating between a ban and Disqualification 134 6.1.2.7.1 Disqualification 135 6.1.2.7.2 Ineligibility 136 6.1.2.8 Concluding the strict liability in sport debate 137 6.1.3 Human strict liability for the non-human athlete 138 6.1.3.1 How comfortable should we be with comfortable satisfaction? 142 6.1.4 Reverse burdens of proof in equine cases 148 6.1.4.1 Reverse burdens in the EADCMRs 149 6.1.5 Strict liability and rules of evidence in equine sport – a case study 150 6.2 A background to the FEI regulation and disciplinary procedures 152 6.2.1 The ADHRA 153 6.2.2 The EADCMRs 154 6.2.3 Why is the status quo a particular problem for equine adverse analytical findings? 154 6.3 Avenues of challenge for equine miscarriages of justice 157 6.4 The case of Vanhoeve and Lobster 43 163 8 | P a g e 6.4.1 Reverse burdens in the Sharbatly and Al Eid case 165 6.4.2 Strict liability – a transplant which should have been rejected by the host? 168 6.5 Sport’s ruling elite and the status quo 170 6.6 Proving the point – a summary of the flaws 174 6.7 Reviews – ‘everything changes, nothing perishes’ 178 6.7.1 Princess Haya’s ‘new leaf’ 178 6.7.2 The Ljungqvist Commission 179 6.7.3 The Stevens Commission 181 6.7.4 The Irish question and Germany responds 182 6.7.5 The issues in endurance 186 6.7.6 Adequacy and independence of the reviews 187 6.8 Setting horse racing’s house in order 189 6.8.1 The Jockey Club’s ‘2003 Joint Security Review’ 190 6.8.2 The Neville Review into integrity in racing 195 6.8.3 The ‘Quest’ investigation into Godolphin 201 6.8.4 Horse racing: ‘A model for the effective investigation of corruption in sport’? 203 6.9 Conclusion: A review of the reviews 205 Chapter 7 – Problematising mitigation of the harshness of the current rules 207 7.1 Where does the answer lie? 207 7.1.1 The introduction of fault at the liability stage in equine cases 207 9 | P a g e 7.1.2 ‘[W]e cannot, without blinding reason and cause, move one millimetre from strict liability…’ 208 7.1.3 Prohibition or ‘public health’ style regulation? 210 7.1.4 ‘Due diligence’, what can be learned from other anti-corruption mechanisms? 214 7.1.4.1 A ‘due diligence’ defence for equine sport teams? 220 7.4.1.1 The exculpated and those ‘for whom the bell tolls’ 221 7.4.1.2 The detail 223 7.2 Conclusion 227 Chapter 8 – Conclusion 229 8.1 Findings from the research question 229 8.1.1 Equine sports and ‘due process’, ‘human rights’ and ‘natural justice’ 229 8.1.2 Re-imagining the horse as athlete 230 8.1.3 Examples of miscarriages of justice 231 8.1.4 What to do about strict liability? 234 8.2 The new paradigm required 236 8.2.1 ‘One ring to rule them all’? 238 8.3 Final thoughts 242 Bibliography 244 Appendix 1 The Al Eid and Sharbatly Award Appendix 2 The ‘It’s a Man’s World Appeal 10 | P a g e List of Figures Fig. 1 – Black Caviar on the front cover of Australian Vogue 17 Fig. 2 – A horse being hunted in an early cave painting 49 Fig. 3 – Modern Indonesian cavalry 54 Fig. 4 – A competitor in a western riding discipline 62 Fig. 5 – Relative increase in cases submitted to CAS 75 Fig.6 – Hoketsu (71) competing in the 2012 Games 101 Fig. 7 – Charlotte Dujardin on Valegro 156 Fig. 8 – Abdullah Waleed Sharbatly (extreme right) receiving his Team Show Jumping Bronze Medal at London 2012, Davos, his ultimate mount, can be seen behind, extreme left 163 Fig. 9 – Jockeys are more limited now in their use of the whip 193 Fig. 10 – Mahmood Al Zarooni at his hearing in London 225 11 | P a g e Abstract Sports governing bodies and international sports federations are very powerful organisations within their sphere. The governance of these sports has created a hegemony which does not necessarily serve the interests of those engaged in sport (the ‘ruled’), but instead those who ‘rule’ sport. A key part of governance is the disciplinary mechanism and the control of cheating within the promotion of integrity. The central tenet of such governance is the World Anti-Doping Agency (WADA) Code, and separate rules within the same aim is the concept of strict liability, modified to ‘presumed fault’ and is predicated on the concept of human autonomy.