‘Don’t look a gift horse in the mouth’: regulating for integrity, what equestrianism can learn from Thoroughbred racing

Abstract

This article questions the current hegemony regarding the drafting of integrity measures such as anti-doping in modern equine-based sport. The examples of the Olympic equestrian sports and British Horse Racing Authority (BHA) regulated racing are used to illustrate the current flaws and the level of crisis facing integrity in horse sport. The regulations concerned differ in form, but they contain common ground such as a fondness for strict liability and reverse burdens of proof. It is evident that these concepts, particularly strict liability, are drawn from common law traditions as continental legal systems on the whole have only fault-based liability. It is also true to say that these concepts have been applied in regulations based on the WADA Code, such as the FEI’s EADCMRs and others with a similar function such as the Orders and Rules of Racing without much proper thought as to their suitability. The received truth appears to be that it is perfectly reasonable to apply a sanction to a human rider because there has been a doping infraction in the horse. This is because the horse is viewed as a piece of equipment that has been tampered with rather like a ski or a badminton racket. This view of the horse is challenged in this article as the horse has to be re-imagined in the context of post-modern human society. First of all, using evidence from military history and sports governance regimes themselves and the social science literature this article shows that the elite sport horse is now socially constructed as an ‘athlete’. It is therefore unconscionable that strict liability and reverse burdens should be applied in equine cases because the infraction happens in the body of a non-autonomous non-human athlete but the sanction is applied to the mind of an athlete of a different species altogether. A case study is presented of a CAS award just before the 2012 London Games in order to demonstrate the inequities present in horse sport regulation like no other. It is further evident that SGBs can no longer rest easy in the knowledge that they cannot be challenged on procedural grounds as they are not public bodies for the purposes of Judicial Review and human rights actions. There has been a gradual leaching of human rights, natural justice and Judicial Review concepts into private law actions which can now be clearly identified in current case law. It is therefore quite possible to foresee the decisions of SGBs being judicially reviewed through private law claims. There is, however, an alternative way of drafting regulations which British Thoroughbred racing has been presented with during a major review. It was suggested in this review that new Orders and Rules of Racing could be drafted according to a number of underpinning principles. The rules themselves should not be too detailed in order to allow them to be applied as flexibly as possible. This represents a real departure from the traditional methods of drafting sports integrity regulations which have mostly relied on literal interpretation. This article proposes this new method of drafting, coupled with purposive interpretation by tribunals, is the alternative hegemony horse sport desperately needs.