Pragmatism, lex sportiva and the fair play principle in sports law

Abstract

Philosophers of sport have theorized on aspects of law that carry over into sport. These in- clude rule-making and interpersonal relationships in sports (Russel, 2011), the enforcement of regulations in sport, and the role that the Court for the Arbitration of Sport plays in determi- ning sport behavior. Throughout these discussions, we have learned that law intersects with sport in the court sector, in issues of human rights, privacy and athlete control (in the case of doping), and within-sport jurisdiction (and understanding the role of rules in sport-playing). One case that can contribute to studies of sport law is that of South African middle-distance runner Mokdadi Caster Semenya. Her public hearing against the IAAF has highlighted the ways in which regulating the female classification in sport overlaps with current understan- dings of the social and medical constructs around gender/sex, as well as the role that sport plays in determining social, medical and legal issues. As a welcome addition to this FairPlay special issue, this article interrogates the ways that lex sportiva (Posner, 1990) and the fair play principle (Vieweg, 2014) can decipher the conflating arguments surrounding Caster’s case. Pragmatism helps to clear away the superfluous information that makes this case so confusing. At the end I argue that Caster could use the argument of lex sportiva to bypass the Court for Arbitration of Sport and argue within the European Justice system on claims that her trial was systematically unfair.