A Pluralist Approach to Global Administrative Law
PhD Thesis Abstract
The following is the abstract of my PhD thesis, submitted to the Université de Montréal in September 2014, entitled "The Application of a Pluralist Approach of Global Administrative Law on the Governance of Doping in Sport."
Several issues which are related to the use of prohibited substances and doping methods
in sport pose great challenges to the anti-doping governance. In order to fight against
doping, some countries have implemented legal frameworks which are based exclusively
on criminal law while other countries have relied on specialized mechanisms and
bodies, either based exclusively on private law or on a hybrid regime of public and
private law. These different regulatory approaches make the fight against doping in
sport severely complicated as its success requires a degree of international cooperation
as well as the concerted involvement of public authorities. However, such cooperation
is often difficult to realize. At present, it can be observed, for example, that nation states
are unable to effectively prevent transnational organized crime syndicates and organizations
from involving in the doping market nor from restricting and eliminating
prohibited doping substances and methods through their regulatory frameworks.
Furthermore, the anti-doping governance framework which is based on the rules and
standards of the World Anti-Doping Agency (WADA) distinguishes athletes from nonathletes,
placing the former in a disadvantageous position. For example, the standard of
strict liability of no fault or negligence imposed on athletes requires less than proof
beyond a reasonable doubt and allows the use of circumstantial evidence to establish an
anti-doping rule violation. This standard of proof undermines the presumption of innocence
principle and the principle of no penalty without a law. Moreover, the new World
Anti-Doping Code of 2015 will empower the National Anti-Doping Organizations
(NADOs) with investigative and intelligence-gathering powers and will add new
categories of non-analytical based doping categories, while reducing the rights of
athletes even further.
In this thesis, we discuss specifically the private law-based regulatory framework of
WADA because it fails to meet the current needs of global anti-doping governance. We
therefore advocate for the adoption of a new approach where the penal and public
global nature of doping is clearly recognized. Such recognition, combined with a suitable
governance model based on a pluralistic approach of global administrative law, will
produce a better accepted and more effective anti-doping governance among athletes
and will also be of benefit for non-athletes. However, the new governance
model that we propose will require all state and non-state parties to adjust their governance
frameworks to meet the current challenges and problems, related to the global governance
of doping in sport.
Keywords: Global administrative law, doping law, sport law, global criminal law, global
constitutional law, global public good, global public interest.
