Making Visible the Invisible Act of Doping.

This paper describes the construction of the visual space of surveillance by the global anti-doping apparatus, it is a space inhabited daily by professional cyclists. Two principal mechanisms of this apparatus will be discussed – the Whereabouts System and the Biological Passport; in order to illustrate how this space is constructed and how it visualises the invisible act of doping. These mechanisms act to supervise and govern the professional cyclist and work to classify them as either clean or dirty in terms of the use of prohibited doping substances or methods. Contrary to the analysis of liberal anti-doping scholars such as Hanstad, Loland and Møller this paper argues that Foucault’s Panopticon paradigm is a useful tool for the analysis of this apparatus.

The Whereabouts System and Biological Passport are the instruments by which the anti-doping apparatus intensifies the construction of the space of surveillance in professional sport. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, but it also makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. In making the cyclist visible the instruments do not allow the cause of doping, or the event of doping to be known or observed. Rather what they do is cast the body in terms of abnormalities of time, place or blood. In the case of an abnormality of the cyclist’s blood, the cause itself cannot be identified with any certainty, all that is made visible is a suggestion, or a probability, that doping may have occurred.

The ultimate effects are twofold – an internalisation and continual monitoring of one’s self as well as by the authorities, and a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence by the use of scientific evidence and expert commentary are transformed.

The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through the discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. The result is a redistribution of the way in which the law visualises and treats the symptoms (the signifier) and the signified act of doping.

Anti-Doping Law and Global Governance

One of the more forceful criticisms levelled by liberal commentators of anti-doping law and policy is that the manner in which the system established by the World Anti-Doping Code (WADC) operates is not consistent with traditional notions of the rule of law and the separation of powers, particularly the separation between judicial and executive powers. It is the premise that, to a large part, underlies Møller’s analysis of the scapegoating of Michael Rasmussen, and is made explicit in the quoting of the United States journalist Hiltzik:

“What has evolved to protect competitive purity since then [the establishment of WADA] is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals and challenges” (Møller 2011b:281).

Møller’s book on Rasmussen is important as it sets out in detail the manner in which the International Cycling Union, the Tour de France, the media and Rasmussen’s team, Rabobank, handled, or mishandled the administration of the Whereabouts system that operates in that sport. Møller painstakingly documents the manner in which the 2007 Tour de France leader, and at that point probable winner of the race, was ‘retired’ by his team for no better reason than to quell a media storm played out in Debord’s Spectacle (Debord 1983:147). Møller’s documentation shows us that Rasmussen was not in breach of any rules that justified his exclusion from the race. He had not received the three Whereabouts warnings necessary to constitute an Anti-Doping Rule Violation (ADRV) and a two year ban from competition. Furthermore, contrary to the Whereabouts rules, details of his file were leaked to the media by the Danish anti-doping authorities. In the report “I Wish I was Twenty One Now – Beyond Doping in the Australian Peloton” there appeared one quote in respect of the Rasmussen case (Hardie, Shilbury, Bozzi and Ware 2012:110). The question and the response of the interviewed professional cyclist put into context the gravity of the events that took place in Pau in July 2007:

Q: Are you ever amazed that Rasmussen is still alive? I actually think sometimes, I really seriously am amazed that he hasn’t committed suicide.

A: Yeah, that was I think an oversight on Rabobank’s point of view, I don’t know. I was there and I’m part of that team and I don’t know enough about that. But I think it was an oversight on them when they kicked him out of the Tour, to leave him alone that night. They put him in a hotel room 100km up the road or something, with that, driven there by a PR lady or something. Really, somebody should have been on suicide watch.

Q: Well, I’m still amazed about it.

A: Taking the Holy Grail away from somebody.

This article is not about the Rasmussen case, but nevertheless that case does help us situate the operation and effect of the Whereabouts System. But what Møller’s perspective fails to consider are the mutations and the different logics or rationalities of the rule of law. Furthermore, his analysis doesn’t take into account the manner in which the emphasis of government has moved from one of law in the formal sense, towards a question of governance. It is one intersection within the zone in between law and governance that I wish to consider here.

One aspect of this general movement from law to governance that interests me is the manner which within a global world of generalised competition, sport itself acts as a form of general global governance. However, what I wish to develop here is a more particular or localised example drawn from the world of sport: the manner in which athletes (in this case professional cyclists) are increasingly themselves governed within this global framework and the place that the Whereabouts System and the Biological Passport play in that apparatus of governance. To understand these instruments of the global anti-doping apparatus we need to descend into the hidden abode of the athlete’s world, and in particular the manner in which this apparatus deals with, or supervises and governs their daily lives and activities. Hence what follows is an overview of the manner in which the individual cyclist, by their membership of the global population of cyclists, are made objects of a regime of anti-doping testing and surveillance. By doing this we can begin to uncover the manner in which the operation of these two instruments contribute to making the private lives and bodies of professional cyclists visible to those that function as administrators of this apparatus. In doing so the hidden act of doping is itself sought to be made visible. As a part of this analysis I wish to consider the manner in which anti-doping scholars have sought to either justify or criticise the Whereabouts System by reference to Foucault’s work on the Panopticon. This helps us understand what is at stake. It also points to the limitations of their analysis and suggests that a closer reading of Foucault’s paradigm of the Panopticon is in fact applicable to the Whereabouts System and the anti-doping apparatus more generally. My point is that the paradigm of the Panopticon and its extension through concepts such as biopower and the society of control do in fact assist us in a better understanding of what is actually at play in this case. They help us grasp how the apparatus makes the invisible act of doping visible and in its process how the law is transformed.

Before undertaking that task it is worth making the point that this apparatus forms a part of what Marazzi has described as “an experiment in post-Fordist governance” (Marazzi 2011:136). Like myself, Marazzi is concerned with “the gradual transformation of politics into administration” and the place of the “emblematic problems of post-Fordist societies” in this transformation, among which he includes drugs (Marazzi 2011:135). For Marazzi the manner in which these problems are dealt with become technical (rather than legal or democratic) problems in which the:

“drug addict strays from the consensual and ‘discursive’ democracy, … to consider him as a citizen would be contradictory in terms of representative democracy. The drug addict is incapable of representing the whole of civil society: he is in fact, a marginal, he is not included in a representative democracy whose rules he does not abide by, he is an ‘impossible subject,’ irreducible to the norms of common living. As such, he can only be considered an ‘administrative subject,’ outside of the democratic debate on the deeper causes of his existence … the question of democracy … (has been) liquidated through a purely technical approach to the issue of drug addiction” (Marazzi 2011: 138-139).

Marazzi’s point is that public measures against drug addiction reflect larger issues relating to the post-Fordist construction of a “democracy ‘without rights’ … the drug addict, the refugee, the unemployed are the ‘human material’ on which to experiment with the new technologies of social control …”. To the conception of “democracy ‘without rights’” we can add that of ‘law without rights‘ which itself operates as a technical measure. My point is that this system of law without rights not only includes, what we might call parts of the population of the global poor, but also those who seemingly inhabit a space reserved for the global elite. In this manner it is not just, for example, the drug addict, the refugee, or the unemployed (who may at the same time be seen as figures of Agamben’s Homo Sacer see e.g. Hardie 2011 and Kreft 2009). In the case of the anti-doping apparatus the experiment is also being carried out on those that, simultaneously, perform a role in the governance and propagation of the generalised system of global competition. The broader context and ramifications of the anti-doping apparatus are brought home to us by comments such as those by the former Australian minister for Sport, Kate Ellis at the 2010 Australian New Zealand Sports Law Conference, where she stated that the Whereabouts System was in fact a model which could be deployed throughout society. Furthermore the Western Australian branch of the Liberal (conservative) Party has recently called upon random drug testing to be carried out on welfare recipients, with the proposal that any positive test should result in the withdrawal of benefits (Perth Now 2011).

It is important to note that the anti-doping regime does not differentiate between the amateur and the professional, by taking out membership with a cycling club and receiving a ‘cycling licence’ all those who join consent to become objects of this regime. The only difference being is that the professional is subject to the extreme intensification of the anti-doping apparatus. It is primarily the Whereabouts System and the Biological Passport that constitute this intensification and which are at the forefront of this experimentation. The two instruments also constitute the primary manner in which the space of surveillance is constructed. This space of surveillance not only locates and makes visible the physical location of each individual cyclist, it also in turn makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. The combination of the Whereabouts System and the Biological Passport thus makes the cyclist visible. These systems cannot by themselves cause the actual act of doping to be identified with any certainty, rather what they do, by casting the place of the body and the constitution of its blood in terms of abnormalities, is to suggest a probability that doping may have in fact occurred.

Anti-Doping Offences.

Within the academic literature on anti-doping there is exists a high preponderance of psychological analysis which addresses the problem of doping as one of moral reasoning (see for example Long et al 2006, Lucidi et al 2008 and Boardley, & Kavussanu, 2008). According to the logic of moral reasoning anti-doping targets misplaced motives framed as unacceptable morals and thus these authors assume that a doping offence is due to lack of knowledge, ignorance or unfairness on the part of the offender. Consistently with the individualisation of the problem the anti-doping apparatus consistently constructs the im/moral individual as the focus of attention and regulation. This is done despite the fact that in some cases the question of whether doping is not a moral but a technical question. For example, in the 2009 Tour de France the U.S. team Garmin Slipstream (widely regarded as a clean and ethical team) made extensive use of the drug pseudoephedrine which at that time was not banned in sport. The following year, 2010 pseudoephedrine was again placed on the List of Prohibited Substances. Similarly, blood doping in its various forms is banned whilst processes such as altitude training or methods that reproduce the same effect are not banned. The question of its use was simply one of whether it was on a list of banned substances, a technical question and not whether or not its use was in some way moral or not.

Before moving directly to outline how the WADC individualises doping it is also useful to note that although many of those that adopt or implement its provisions are State parties the Code is not a treaty in the sense that the term is used in relation to Public International Law, but a form of private agreement entered into by both State and non-State parties, both sporting and non-sporting. Along with that, as already mentioned, individuals also consent to the terms of the private agreement by taking out membership of their respective sporting club.

As the global constitutive or framework document for the anti-doping apparatus the World Anti-Doping Code (WADC) establishes two primary norms that may be transgressed by an athlete – the presence of a prohibited substance in their body and the use of a prohibited substance or method.

The individualisation of the problem is clear from the text of the WADC and its embodiment of the principle of strict liability. Article 2.1 of the 2009 WADC establishes the offence of the presence of a prohibited substance in a bodily sample taken from an athlete. The relevant parts of the article state that each athlete has duty to ensure no prohibited substance enters their body. In order to make out the offence it is not necessary to show intent, fault, negligence or knowing use on the part of the athlete, such that the (mere) presence of a prohibited substance is of itself sufficient proof. Furthermore, in most circumstances (other than certain specified substances) the presence of any quantity of the substance constitutes a violation.

Article 2.2 of the WADC establishes the offence of use or attempted use of prohibited substance or method. Accordingly it is each athlete’s personal duty to ensure that they do not use a prohibited substance or method, once again intent is not a necessary element of the offence, neither is whether or not an attempted use was carried through with or was in fact successful. The provisions of Article 2.2 in effect create a wider catch all situation, allowing for cases to be proven whereby no substance has been detected in an athlete’s bodily sample, or whereby there is evidence of an attempt to dope which itself has not been fully acted upon.

Article 2.1 adopts the principle of strict liability, which it is argued is necessary in order to properly carry out the fight against doping. Article 2.3 requires evidence other than a positive test result, such as actual evidence of use or for example other circumstantial evidence based upon the Biological Passport. Thus as we will see raises another set of difficulties in respect of proof. Similar to the positions mentioned earlier on the separation of powers, the strict liability principle has been criticised by some as being contrary to accepted principles of law and human rights (see McLaren 2006:4, 21, Coleman J.E., & Levine J.M. 2011:27). This was what was at issue in the Alberto Contador case and which led to the comments by the then President José Luis Rodríguez Zapatero on the government’s Twitter page: “there’s no legal reason to justify sanctioning Contador“, a position supported by his opponent and successor, current President Mariano Rajoy, and by Angel Juanes, the President of Audiencia Nacional (the Spanish High Court) who questioned the constitutionality of the strict liability principle, in so far as it removed the presumption of innocence (El Mundo 2011). Soek notes that although the burden of proof is on the prosecuting authority (the anti-doping or sporting organisation) to prove the offence, the practical effect of the strict liability principal is that the athlete appears prima facie guilty whenever a prohibited substance has been shown to be or have been present in their body (Soek 2006:41).

In respect of both provisions the standard of proof to be met by the prosecuting authority is that of comfortable satisfaction, something greater than the balance of probabilities used in civil cases, but generally not as high as the criminal standard of beyond reasonable doubt. The standard was adopted by the Court of Arbitration of Sport (CAS) from the jurisprudence of the Australian High Court and its decision of Briginshaw v Briginshaw (1938). As will be discussed below the manner in which scientific evidence is used in Biological Passport cases effectively lowers this apparent high standard of proof. The one exception to the strict liability principle, which in reality is not really an exception, as it does not go to excusing the offence but only to mitigate any penalty, involves the situation where an athlete can show how a substance entered their body, that it was not intended to enhance performance, and that there was no fault or negligence on their part (Article 10 WADC). If an athlete is able to adduce corroborating evidence of these elements, to the standard of conformable satisfaction, any penalty may be reduced from the standard two years of ineligibility (ban) from competition.

The point to be made here is that the WADC ultimately brings its disciplinary weight to bear upon the individual and their behaviour.  As competition individualises everything, in the end it makes the individual ultimately responsible for their own actions and their own body. In the world of the war on the doper there is no such thing as society (Thatcher 1981).

The WADC operates in conjunction with five international technical standards issued by the World Anti-Doping Agency (WADA). WADA states that the standards are aimed at bringing harmonisation among anti-doping organisations in various technical areas, namely, the Prohibited List, Testing, Laboratories, Therapeutic Use Exemptions (TUEs), and Protection of Privacy and Personal Information. WADA states that the standards have been the subject of lengthy consultation among WADA’s stakeholders and are mandatory for all signatories of the Code. Given their mandatory status the norms articulated in the standards seep into the decisions of both sporting and State anti-doping documents and decision-making (Berman 2005:510). Any departure from the norms must be proven by an athlete on the balance of probabilities, but even when this is possible, certain provisions of the WADC, International Cycling Union (UCI) Rules and, for example, the Australian Sports Anti-Doping Authority’s (ASADA) National Anti-Doping (NAD) Scheme, contain ‘no invalidity’ clauses that seek to ensure that departures from the norms do no invalidate any positive doping test results (see e.g. XZTT 2012). Straubel argues that the WADA system is “nearly incapable of addressing the inherent imbalance of power between athletes and their accusers” (Straubel 2009:119) and that under the current WADC an athlete must prove both a departure from the ISL and that the departure was likely to have caused the positive result constituting “an exhibition of unchecked power” (Straubel 2009:138).  Nevertheless, some cases of the Court of Arbitration for Sport (CAS) suggest that the threshold to be crossed by the athlete is not as high as Straubel puts it (see for example Landaluze 2006). But these cases and the exception therein are rare and difficult (see XZTT 2012).

Whereabouts Surveillance

Dimeo (2007) sets out in great detail the history of anti-doping and the development of the drug testing regime in sport. For our purposes what interests us is the transition that occurred in the late 1980’s from purely in-competition anti-doping testing, that is testing that took place only at sports events, to unannounced out-of-competition testing, that is testing that could take place at any time and place outside of events (Houlihan 1999:151). The Whereabouts System was introduced ostensibly as a mechanism to improve the administration of out-of-competition doping tests. In cycling the system is linked in its operation and purpose to the Biological Passport such that it is regarded as a necessary and complementary tool without which the Biological Passport would not be complete. Whereabouts is said to target out-of-competition testing by requiring individual athletes to state their physical location within set timeframes and, thus, make themselves available for the collection of both blood and urine samples. These tests, in turn, provide information for the Biological Passport, which itself contributes to the refinement and better targeting of such testing. It is because of this that the UCI regards the information gathered though the Whereabouts System as being imperative, in that it is said to enable anti-doping tests to be conducted anywhere in the world, at any time (UCI, 2008a). From 2008, the requirement to complete Whereabouts information was extended to include a large section of the professional cycling peloton. As such, all members of UCI professional teams and those in the Registered Testing Pools of their National Anti-Doping Agency (NADO) must provide online to the UCI or their NADO, a schedule of their Whereabouts. In doing so riders are required to complete their Whereabouts information in advance and in quarterly blocks.

The information provided by the athlete is intended to be strictly confidential and must only be used for the ‘relevant purposes’ and, once the three-month period has elapsed, the information must be destroyed. As the relevant purpose is the planning, coordinating and conducting of out-of-competition testing, the strict application of the rule would mean, for example, that after 30 March the information provided for the three months preceding is required to be destroyed as it is no longer relevant. Given the privacy concerns, one might expect these rules to be strictly interpreted – in a similar way that punitive or criminal provisions are always strictly interpreted so as not to impinge upon fundamental rights. However, Møller’s (2011b) work on Rasmussen shows that this rule has not always been followed. His analysis of Rasmussen’s case illustrates that the requirement of confidentiality may be overridden by the arbitrary requirements of the Spectacle.

The provisions of the UCI rules relating to Whereabouts Information are found in the Anti-Doping Rules of the UCI – Part 14 of the UCI Regulations. In particular, the provisions relating to the Whereabouts System  may be found in Chapter V of Part 14 (Rules 81-119). In summary, the UCI requires riders to provide, at a minimum, the following information for each day of the year and before the commencement of each quarterly period:

• A one hour time slot each day where the cyclist guarantees to be available for an anti-doping test;

• Their residential address for each day – that is, the place where they will be sleeping;

• Their training schedule;

• Their competition schedule;

• Their travel schedule;

• The information must be updated whenever the cyclist becomes aware of a change to their schedule.

The required information is entered online by the cyclist into the Anti-Doping Administration and Management System (ADAMS). Interestingly and in a seemingly Orwellian manner, the US Anti Doping Agency considers the requirement to complete this information as one of the ‘athlete services’ they provide.

Article 2 of the WADC details the provisions that deal with Anti-Doping Rule Violations (ADRV). Pursuant to Article 2.4, a failure to provide proper Whereabouts information may constitute an ADRV. Under the provisions, any combination of three missed tests and/or filing failures within an eighteen-month period, as determined by anti-doping organisations with jurisdiction over the athlete, shall constitute an ADRV. The explanatory notes to the WADC (which do not form part of the Code itself) state that a failure to provide proper Whereabouts information may also constitute a breach of Articles 2.3 and 2.5 which deal with refusals and failures to submit to a test and tampering with an anti-doping control, respectively. Violations of, for example, Article 2.4 carry with them, pursuant to Article 10.3.3, a minimum of a one-year and a maximum of a two-year period of ineligibility (ban).

The Internalisation of Control

Predictably, part of the liberal reaction to Whereabouts System internationally has been a critique of its impact on personal privacy and debates regarding whether it can be defended as a morally valid system of surveillance. On the other hand, work with Australian professional cyclists has observed a tacit acceptance of the system as a necessary evil (Hardie, Shilbury, Bozzi and Ware 2012). In that study it was observed that the Whereabouts System was widely considered as an imperfect, but still largely useful and moderately successful deterrent and detection system for otherwise virtually undetectable doping methods. The following excerpt from the interviews conducted in that project suggest that the ‘paperwork’ involved in complying with the Whereabouts System is regarded by some to be of the same nature as other forms of regulation that one might need to comply with as a small businessperson or entrepreneur, that is, they are just facts of doing business:

I have to do Whereabouts and I have to do this, things can always be better sure but it doesn’t seem like it’s that big a deal. I think any vocation you’re going to have this paperwork to deal with and all this bullshit or licensing and stuff like that (Hardie, Shilbury, Bozzi and Ware 2012 unpublished interview).

Legal or ethical issues generally took second place to a pragmatic acceptance that Whereabouts was essential to a working anti-doping apparatus. One former cyclist commented that:

It addresses a key method that people have used to avoid control, so I would have thought it is an eminently reasonable expectation if you have an anti-doping program because that is the way people have got around controls: not being there. (Hardie, Shilbury, Bozzi and Ware 2012:93).

What is clear from these interviews was that, even at their most negative, there wasn’t any clear objection on what we might term ethical or moral grounds to the Whereabouts System itself. Even at its worst, the system was regarded as a necessary evil, and was generally rationalised by the interest in notions of rider health, fair play and, most importantly, the economic necessity of presenting a ‘clean’ sport. Most complaints arose initially at a technical level which may be understandable given that managing data on the daily movements of any given individual is a mammoth task.

Panopticonism

Discussion of whether the system is ‘morally justifiable’ becomes more pressing when it is considered that three failures to comply result in an ADRV – that is a two year ban from competition or worse it can mean the end of a contract, reputation and in the end career. It is from this perspective that academic analysis has concentrated – the question as to how is the regime to be justified vis à vis an athlete’s human rights or civil liberties. Below I wish to consider two articles, both by leading anti-doping scholars, which have both discussed Foucault’s concept of Panopticism in the context of the Whereabouts System. Hanstad and Loland (2009) were the first to consider this issue. The used as their starting point Foucault’s concepts of a surveillance regime. Later Moeller (2011a) responded to their analysis.

To start with Hanstad and Loland accepted that athlete reactions to the system as a form of unacceptable surveillance seemed more cogent than criticisms based upon perceptions of justice (Hanstad & Loland 2009:7). How the two concerns – unacceptable surveillance and injustice; are so neatly separated was not made clear, but the authors concluded:

“We began by asking whether WADA’s compulsory reporting system can be defended on moral grounds. Our answer is conditionally affirmative. The arguments against the WADA-system do not seem powerful enough to reject it. Everyday surveillance of individuals is far more extensive, it is concealed and also more problematic. The WADA requires active participation from the person being watched. Hence, the system does not seem to involve undue violation either on the principles of justice or on athletes’ autonomy and right to self-determination” (Hanstad & Loland 2009:9).

Hanstad and Loland’s conclusions regarding the Whereabouts system seem to rest upon two propositions:  “Everyday surveillance of individuals is far more extensive, it is concealed” and that the “WADA requires active participation from the person being watched”. In their analysis of the system the authors referred to the claims of some Norwegian athletes that Whereabouts constituted a “Big Brother system”, a perception they believed was “strengthened by the system not only affecting the individual’s life as an athlete, but also their whole lives” (Hanstad & Loland 2009:7). Hanstad and Loland accepted that surveillance regimes have increased in scope and complexity and that the “need to regulate can go too far”. In considering this aspect and in pursuit of striking a balance they turned to Foucault’s work for a “critical approach” (Hanstad & Loland 2009:8).

Their analysis commences with an acceptance of the proposition that Foucault’s work on the Panopticon “appears as a model for the development of Western society” (Hanstad & Loland 2009:8). They note Bentham’s “good intentions” in drawing up his plans for the model prison, and that Foucault points to opposite consequences: “far more subtle, disciplining and “normalizing” processes that more effectively reduce the individuals opportunity for autonomy and right to self-determination” (Hanstad & Loland 2009:8). Interestingly, and possibly without fully grasping Foucault’s point, they argue that in the light of the Norwegian populations reported lack of concern of the misuse of personal information the claim of opposite consequences is a paradox (Hanstad & Loland 2009:8). Rather than being a paradox, the apparent acceptance of surveillance and the mis/use of personal information may in fact be one of the consequences of such regimes that Foucault himself suggested. That is the docility of the population brought about by techniques of discipline results in them not being concerned, in their tacit acceptance of the fact that they are being observed and that the fruits of this observation may be used not only for their benefit but also contrary to it.

Hanstad & Loland then note that unlike convicted criminals or others, who are controlled following their release from prison, “athletes have committed no crime or rule violation … [having] to meet the demands of compulsory whereabouts reporting just because they might violate the rules … is without doubt unusual” (Hanstad & Loland 2009:8). It is correct that the only other members of society subject to similar location surveillance and reporting appear to us to be persons serving jail sentences, such as home detention and convicted but released paedophiles. In the interviews done by Hardie, Shilbury, Bozzi and Ware (2012:102-103) one participant commented on the situation as follows:

Q: Do you think other people in society should be subjected to surveillance like athletes are?

A: No.

Q: No? So nobody should be subjected to that sort of surveillance?

A: No. But I think we are, though.

Q: We don’t have to report. You know we might be with cameras and all that, but I don’t need to report in. I don’t even have to tell my boss where I am any more. But who are the other people who are subject to such a reporting scheme?

A: Criminals.

Q: Not even criminals. Just paedophiles who have been released.

A: Probationary people.

Q: Yeah. They’ve obviously got this one going.

A: It’s like saying everyone’s guilty before they’ve even done the thing.

Another participant in that study commented (2012:103):

Q: Who else in society do you think is subject to such a …?

A: No one.

Q: Paedophiles?

A: Yeah, exactly, that’s probably it, sex offenders … but I don’t think theirs is as strictly watched as ours.

Q: No. It says something about your role in society, I think, yeah?

A: I guess so.

Subjecting athletes to such measures of surveillance and location reporting, despite the fact that they have not actually violated any norm, is no doubt an exceptional measure within the bounds of what is perceived as a liberal democratic society (Waddington 2010). If one turns to the original text of Foucault it is apparent that he considered this type of surveillance to be an aspect of the Panopticon which in facts perfects power, by allowing it:

“to intervene at any moment and because the constant pressure acts even before the offences, mistakes or crimes have been committed … [in these conditions, its strength is that it never intervenes, it is exercised spontaneously and without noise, it constitutes a mechanism whose effects follow from one another]” (Foucault 1991:206).

However, in their analysis Hanstad and Loland either ignore or do not pick up on this normalising aspect of the Panopticon and its ‘pre-crime’ operation. The authors then go on to point out what they consider two significant differences that distinguish Whereabouts from other forms of surveillance and which in fact tend to legitimise it. It is necessary to cite in full their proposition, as it deserves close analysis and comparison with the text of Foucault:

“First, athletes themselves have to submit all the information about where they are, and second, violation of the regulations is followed by clearly defined consequences. This can hardly be described as a Big Brother-system where the athletes are being watched covertly. The whereabouts system is clearly detectable and open, and all athletes know the consequences of violation. There is a difference here between the criminal being electronically monitored as well, since athletes can withdraw from the surveillance. The point argued by, among others, Rune Andersen of the WADA, of sport as a voluntary practice in this fundamental sense is a relevant one” (Hanstad & Loland 2009:8).

In essence the differences between criminal surveillance and Whereabouts (which it is argued tend to legitimise the latter) rest upon four propositions. Firstly, sport and thus submission to the regime is voluntary or contractually based. Secondly, that the surveillee actively participates in the process (that is by providing the necessary information and as a consequences of the first proposition voluntarily). Thirdly, surveillance is not covert but known (and because of one and two – accepted). Finally, the consequences of any violation are known and open. On this basis, the implicit position of Hanstad and Loland is that the Whereabouts System is not an example of the Panopticon and thus can be justified as legitimate. Alternatively, at best, if it is an example of the Panopticon, the good intentions and beneficial nature of the system mitigate against its possible opposite consequences. The problem with this analysis is their interpretation of Foucault’s Panopticonic paradigm does not do justice to the original text.

It is not the purpose of this work to tackle the proposition that sport is a voluntary activity and that submission to anti-doping rules is thus a matter of contract. Reference was made to this point in our work with Australian professional cyclists (Hardie, Shilbury, Bozzi and Ware 2012:61). It is also clear that private agreement tends to form an increasing part of the body of global law and that it increasingly underpins the general organisation of neoliberal society. Furthermore, even Foucault noted that although the disciplinary paradigm of the Panopticon was “not under the immediate dependence or a great extension” of the juridico-political structures of a society “it is nonetheless not absolutely independent” (Foucault 1991:221-222). The rhetoric of contract has formed the “ideal foundation of law and political power; Pantopticism constituted the technique … of coercion” (Foucault 1991:222). In these passages Foucault described the disciplines as both an “infra-law” and “counter-law”, mechanisms that constituted the law but on a different scale creating:

“between individuals a ‘private’ link, which is a relation of constraints entirely different from contractual obligation; the acceptance of a discipline may be underwritten by contract; the way in which it is imposed, the mechanisms it brings into play, the non-reversible subordination of one group of people by another, the surplus of power that is always fixed on the same side, the inequality of position of the different ‘partners’ in relation to the common regulation, all these distinguish the disciplinary link from the contractual link, and make it possible to distort the contractual link systematically from the moment it has the content of discipline. We know, for example how many real procedures undermine the legal fiction of the work contract: workshop discipline is not the least important” (Foucault 1991:222-223).

What better description is there of the manner in which the contract to voluntarily participate in sport is transformed into a disciplinary (or control) mechanism by the incorporation of the Whereabouts System? From a reading of the text we can see that it is in fact the voluntary nature of the acceptance of surveillance by contract, which rather than distinguishing the Whereabouts System from the Panopticon paradigm, in fact supports the application of Foucault’s model of power to it.

In the contemporary context contract or private agreement, is increasingly one manner in which law is being removed from the sovereign sphere. If it is accepted that what is at stake in anti-doping is fundamentally an administrative or policing activity, what we can begin to contemplate here is the instrumental manner in which discipline or control is in fact internalised by way of an agreement. That is an agreed submission to be policed. In this respect the privatisation of the police constitutes a form of the publicisation of private life in a manner that finds its analogue in the privatisation of public life. Thus, in this context the privatisation of the police can be understood, as not only being constituted by the out-sourcing of, for example, policing activities to private security firms, but also as this process by which we consent, by way of a voluntary private agreement, to being surveilled by a transnational policing apparatus. In this situation it is our own individual consent that constitutes the privatisation of the police.

This brings us to the second factor by which Hanstad and Loland’s distinguish Whereabouts from the Panopticon. Their argument was based upon the fact that the surveillee actively participates in the process of their own surveillance by providing the necessary information which allows them to be observed. It is the corollary of the first, contractual based, voluntary proposition dealt with immediately above. To argue that a system is not disciplinary because individuals actively participate in a subtle process of surveillance and normalisation appears to miss the point of the Panopticon paradigm as a whole. Rather than being the paradox referred to by Hanstad and Loland above, the effect of the Panopticon is “far more subtle, disciplining and “normalizing” processes” – a “body is docile that may be subjected, used, transformed and improved” (Foucault 1991:136). The docility and normalising process can only be magnified when discipline and control is internalised and when it becomes a part of a project undertaken by the athletes themselves. Within the Panopticon of Whereabouts, the athletes are “caught up in a power situation of which they themselves are the bearers” (Foucault 1991:201).

Without the athlete participating in the system the body is not normalised which is the point of the whole operation – knowing that one is under surveillance is a key to its operation and one participates actively in this normalisation. The “pain in the arse” (Hardie, Shilbury, Bozzi and Ware 2012:94) of continually providing and updating information to the computerised ADAMS system, is one of the mechanisms by which the desired disciplinary effect is achieved. This, combined with the inability to know when the anti-doping controllers may arrive at one’s door, to undertake either a blood or urine test, manifestly reinforces the disciplinary effect. The athlete must always be on guard, to ensure that their Whereabouts is reported fully and without any fault or mistake, always ready, at any time, for the tap on the shoulder or the knock on the door:

“He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles: he becomes the principle of his own subjection. By this very fact … the more constant, profound and permanent are the effects …” (Foucault 1991:202-203)

Hanstad and Loland’s third proposition, again a consequence of the first two, is that Whereabouts is not the Panopticon because the athlete knows that they are being watched. As can already be seen the fact that surveillance is not covert severely misreads Foucault’s paradigm. The point is not that surveillance is covert, but it is the relationship between visibility and invisibility that is crucial. The observed in the Panopticon is fully aware that they are being observed – there is no covertness at play. The architecture of the paradigm is such that the observed is always actually or potentially visible to the observer. This visibility is the very trap of the Panopticon: “the mechanism arranged spatial unities that make it possible to see constantly and to recognize immediately” (Foucault 1991:200).

What then is the immediate purpose that is served by the Whereabouts System other than the ability to constantly see and recognise where an athlete is at a given time in order to undertake an anti-doping control. The athlete’s daily activities, breakfast, stretching, the gym, shopping, training on open roads, visiting friends, going to a restaurant or the movies, sleeping, all become visible by way of their reporting of their Whereabouts. The athlete does not see the controller until and when the controller wishes to be seen. But at the same time the athlete is always on the alert for the ever present possibility of this occurrence. Hence the cyclists complain that they provide a time when they are available to be seen, but the controller always seems to arrive at another time: “He is seen, but he does not see; he is the object of information, never a subject in communication” (Foucault 1991:200). The athlete in the system knows this, and they know that failure on their part to be visible brings with it severe consequences. The invisibility of the anti-doping controller is the guarantee of order (Foucault 1991:200). The fact that the system is not covert is in fact its very point. The major effect of the Panopticon is to induce “a state of conscious and permanent visibility that assures the automatic functioning of power … surveillance is permanent in its effects, even if it is discontinuous in its action”. It may well be that an athlete subject to Whereabouts is hardly ever, or even never, tested as a result of their reporting their location, but it is this perfection of power that actually achieves and renders testing unnecessary in many cases. This perfection is brought about not by the system being covert, but by it being visible, by the athlete’s active participation and by the time and place of the arrival of the controller being unverifiable … never knowing when, but always knowing it is possible (Foucault 1991:201).

It should be now apparent that the propositions put forward by Hanstad and Loland cannot be supported by a reading of Foucault’s original text. Equally, their fourth proposition, the consequences of any violation are known and open is similarly unsupportable on this basis. The inmates of the prison, the pupils of the school, the workers in the factory, all were more than aware of the punishments that might follow from their disobedience to the necessities of power. If openness is a criterion with which to distinguish the Whereabouts System from the Panopticon the authors have forgotten that one great feature of the disciplinary mechanism is its ‘democratic’ nature, its openness constantly accessible “to the great tribunal committee of the world” (Foucault 1991:207). It was this great tribunal of the Spectacle and not the application of the law that convicted Michael Rasmussen.

The Panopticon as Paradigm

Another leading liberal anti-doping scholar, Verner Møller, has also discussed the relevance of the Panopticon to the Whereabouts System. Møller’s principal objection to the application of the Panopticon paradigm to the Whereabouts System is framed initially as a response to Hanstad and Loland’s article discussed above. In an attempt to distance himself from them he deals with what he calls the “Foucault cul de sac” (Møller 2011a:183) and in turn offers Orwell as a better theorist of the problem. Both of these arguments are problematic. Firstly, his reading of Foucault, albeit for different reasons from Hanstad and Loland, appears to be equally flawed. Whilst the Norwegians appeared to have set out to bolster the Whereabouts system, Møller clearly wants to demolish it. In doing so he takes issue with their reading of Foucault but on the way he unfortunately also seems to miss the point. If he had approached Foucault with a more sympathetic or open mind Møller could have demolished the Norwegian analysis with much greater vigour. Secondly, his favouring of Orwell, whilst interesting in that he foregoes his desired scientific reason to privilege literature,  raises the question of resistance to power, only to champion a vague and ill-defined concept of human nature (Møller 2011a:178-179). It is not Møller’s use of Orwell but his misuse of Foucault that is relevant here.

Møller does not fall into the error of arguing that the mere fact of participating in and having knowledge of surveillance distinguishes Whereabouts from the Panopticon. Møller accepts Foucault’s proposition that inmates in the jail are objects of information and that they feel under constant surveillance, without having the least idea as to whether in reality they are or not, and that it is this that causes the system to become a system of self-surveillance (Møller 2011a:183). Thus the criticisms I have made of the second and third of Hanstad and Loland’s propositions do not apply to Møller. Nevertheless, he goes on to state that Foucault’s idea is thought provoking but that his “analysis does not match up to the impact it has had” (Møller 2011a:183). The error in the use of Foucault according to Møller stems from the misapplication of Foucault’s paradigm outside of the realm of the prison:

“Many people today make use of Foucault without considering the range of his analysis. It might, therefore, be appropriate to remind ourselves that Foucault was focusing on inmates. He is primarily concerned with those who are locked up in prisons. It is true that he also mentions the sick, the mentally ill, workers and school children, but here, too, his point of departure is internment …” (Møller 2011a:183).

Hence, our first point of contention with Møller must be his narrowing of the Panopticon to merely apply to inmates in prisons or cases of internment.  It is by virtue of this claim that Møller is able to go on and dismiss the relevance of Foucault. But in doing so Møller commits the error he seeks to lay at the door of others – he doesn’t consider the range of Foucault’s analysis. It may be correct to point out that Foucault’s point of departure was the prison, but this of course was not the end of his journey, or the range of his analysis. This is more than clear from a reading of the Panopticon text itself, of course it would be even further illuminated if we were to proceed to consider the whole of Foucault’s trajectory. From this claim Møller then goes on to argue that the Panopticon does not have the normalising effects that Foucault suggested, it will be seen that this second claim stems from the error contained in the first claim.

What is apparent from any fair reading of Foucault and from the plain text of his chapter in Discipline and Punishment entitled “Panopticism” is that what he is proposing is a model of power, a paradigm of power, “a generalizable model of functioning” (Foucault 1991:205) that “was destined to spread throughout the social body” (Foucault 1991:207). Immediately before the paragraph that Møller cites as proving that Foucault was only concerned with prisons the Panopticon is described as a “marvelous machine” which may be put to “whatever use one may wish to put it to” (Foucault 1991:202):

“… the Panopticon must not be understood as a dream building: it is a diagram of a mechanism of power reduced to its ideal form; its functioning, abstracted from any obstacle, resistance or friction, must be represented a pure architectural and optical system: it is in fact a figure of political technology that may and must be be detached from any specific use .. It is polyvalent in its applications …” (Foucault 1991:205).

Agamben has directly addressed the idea that what Foucault proposes is not one concrete example confined to the range of the prison, but, a paradigm of power able to be applied in a variety of circumstances. This is plainly clear from the text of Foucault cited above. According to Agamben the Panopticon functions as a paradigm in the strict sense:

“it is a singular object that, standing equally for all others of the same class defines the intelligibility of the group of which it is a part and which, at the same time, it constitutes. Anyone who has read Discipline and Punishment knows not only how the Panopticon, situated as it is at the end of the section on discipline, performs a decisive strategic function for the understanding of the disciplinary modality of power, but also becomes something like the epistemological figure that, in defining the disciplinary universe of modernity, also marks the threshold over which it passes into the societies of control” (Agamben 2009:17).

What concerns us, and what is ultimately at stake with the Whereabouts System is as much the disciplinary modality but equally the manner in which it marks in combination with the Biological Passport, the threshold or passage from discipline to societies of control. The Panopticon is both a concrete, singular, historical phenomenon, and at the same time “Panopticism“: a model of functioning which can be generalised, which allows the definition and establishment of new sets in the relationship between power and the everyday life of man:

“To understand how a paradigm works, we first have to neutralize traditional philosophical oppositions such as universal and particular, general and individual, and even also form and content. The paradigm analogy is bipolar and not dichotomic, it is tensional and not oppositional. It produces a field of polar tensions which tend to form a zone of undecidability which neutralizes every rigid opposition. We don’t have here a dichotomy, meaning two zones or elements clearly separated and distinguished by a caesura, we have a field where two opposite tensions run” (Agamben 2002b).

Contrary to what Agamben refers to as the tensional nature of this analysis, Møller criticises Foucault and the success of his ideas such as that of discipline normalising and creating docile bodies on the basis that they rest “to a large extent on his tendency to take matters to extremes” (Møller 2011a:183).  It is an interesting criticism to be kept in mind when we turn to the manner in which Møller analyses the problem. Møller adopts a position at the other end of the binary spectrum to Foucault (and for that matter Hanstad and Loland). If Foucault says that discipline has a normalising effect, Møller  ‘disproves’ it by showing that the opposite exists, and if the opposite exists, thus Foucault’s claim is baseless. Taking things to the extreme, to the opposite binary position, avoids entering into the complexities of thought, and allows one to take refuge in the safety and comfort of their own personal or academic Chestnut Café. Just because people in jail might behave in a certain way as a result of surveillance, doesn’t mean people outside of jail will – for Møller this is proven by the fact that we still scratch our noses or crotch when under the gaze of close circuit cameras or even rob banks so equipped (Møller 2011a:183):

“… it will be natural for someone to test the power of the tower at some time. There might first be minor infringements of the existing order. If nothing happens, their audacity will increase just as when hungry birds test out a scarecrow.

For that same reason he [Foucault] needs to be read critically. If mankind were as capable of being moulded by a system as he describes, revolt and attempts to escape would be unthinkable once the architecture of the ‘house of certainty’ had been implemented” (Møller 2011a:183).

Later, referring to Orwell’s Møller accepts that the description of Big Brother:

“comes close to Foucault’s view that the experience of permanent surveillance makes those subjected to surveillance internalize it. But surveillance as extensive as that which Smith is subjected to ought, according to Foucault, to result in resignation and subjection. Orwell’s novel shows, however, that human beings respond in a different way. While it is true that they develop the ability to conform to given conditions in order to avoid punishment, the discomfort felt at the inhuman system stimulates resistance” (Møller 2011a:183).

Lest I mention the Chestnut Cafe again? But Møller knows too well the story of one who has tested the power of Whereabouts System, his work on Michael Rasmussen’s expulsion from the Tour de France for alleged violations of the system, rather than supporting the “if nothing happens” show precisely how attempts to test (to resist) the system are met (Møller 2011b). They have not increased the audacity to challenge the system but brought Rasmussen to the very edge of his existence, as both an athlete and a living being. The justice of the manner in which Rasmussen was dealt with is the very point – his sacrifice reinforced the system, its operation, its acceptance by others and thus the deployment of power. The making of the scapegoat of the one that tested the system reinforces, rather than undermines the system.

On another level, this statement by Møller also ignores the whole trajectory of Foucault’s work on power and in particular his later work on forms of resistance to power and the importance to Foucault of the power/knowledge relationship. It is not possible here to deal with this aspect in detail, nevertheless a reading of the original text can refute all the arguments of Møller, Hanstad and Loland. But again Møller takes the extreme binary position: because resistance may occur or be possible (despite the obvious consequences to Rasmussen and the effect on others of those consequences), the Panoptic model is of no value for our analysis. This claim, it is not an argument, is bolstered apparently by the proposition that it is because surveillance itself does not do away with power!

“It is not, however, the surveillance itself that exerts the discipline, but the power that lies behind it. The panopticon does not, in other words, make power redundant” (Møller 2011a:183).

As is apparent from the above discussion Foucault never argued that Panpoticism makes power redundant. Rather his position was that it is a mechanism, a technology for deploying and exercising power (Foucault 1991:206) That is the Panopticon paradigm operates not in order to do away with power but to deploy it in more economical ways. But for Møller it is not the deployment of power that modifies and normalises but our own enlightened rationality:

“It is true that the cameras have a preventive effect. For obvious reasons, criminals will gravitate to areas where the risks of being discovered are smallest. If one bank has an effective surveillance system and another has not, then the bank robber will, other things being equal, plan to rob the latter. This is rational behaviour that has nothing to do with the disciplinary mechanism of anonymous surveillance” (Møller 2011a:184).

If this is ”rational behavior” it is disingenuous to argue that the disciplinary system plays no part in it. This so called rational behaviour is the normalising effect of which Foucault speaks. But in any event the purpose of the disciplinary machine was never to be the universal panacea for crime. To argue that Panopticism does not end crime and is thus inapplicable to the situation again misreads the text. In their early forms disciplinary institutions were expected to end such dangers to society: “to neutralize dangers, to fix useless or disturbed populations, to avoid the inconveniences of over-large assemblies …” (Foucault 1991:210). Their focus and their deployment tended to play, not a negative role, but a positive role – to increase the possible utility of individuals, to fortify, to develop the body, “the disciplines function increasingly as techniques for making useful individuals. … Hence also their rooting in the most important, most central and most productive sectors of society”(Foucault 1991:210-211). For every dissenting Rasmussen a hundred normalised others are created.

Here is not the place to set out arguments as to the importance of sport as a productive sector of society, nevertheless, accepting that that case needs to be developed, the prevalence of mechanisms of surveillance, discipline and/or control within the anti-doping apparatus of sport is focused upon making the athletic body useful within the global Society of the Spectacle. It has both an economic and a governance function. In so doing, the effect of the disciplinary measure transcends the immediate effect upon one individual. At the point where disciplinary society and biopower converge both the individual and the population, generally, and here specifically the sporting population, are the subjects of these technologies. Rasmussen’s sacrifice may show that resistance or dissent exists, it and other cases (or for that mater the interviews in Hardie, Shilbury, Bozzi and Ware 2012) may show that not everybody buys fully with their heart and soul into the system, but what these instances also show is that overall there is an increasing acceptance and ‘improvement’ of the individual and the population. The docile athlete, like the docile soldier, is a useful athlete. It is in this way, the Panopticon of Whereabouts plays a role of amplification – it arranges power, it makes power more economic and effective (to the point that in some cases their application are rarely or never needed). In so doing it strengthens the social forces involved in sport – increasing the production of the myth of fair competition on a level playing field, developing the virtue of the pure athlete, the economy and education. Neither power nor crime is made redundant, its aim is to “raise the level of public morality; to increase and multiply” (Foucault 1991:207-208).

On any fair reading of Foucault’s text it is clear then that the Whereabouts system fulfils the triple objective of the Panopticon. Firstly, the cost/benefit objective – to obtain the exercise of power at the lowest possible cost. Secondly, that of intensification and expansion – allowing the effects of power to obtain their maximum intensity and extension. Finally, the productive objective – of linking the techniques to economic growth (Foucault 1991:218). But, most importantly, it organises and fixes a population in the place that is necessary for it to be controlled – it is a centre of observation disseminated throughout the society in question (Foucault 1991:212), it is an anti-nomadic technique (Foucault 1991:218) deployed against the nomadic athlete. The docility it contemplates is the consent of the useful; those that do not consent are no longer regarded as such, and are thus dispensable, expendable.

It is hoped that this examination of Foucault’s text goes some way to showing that the paradigm of the Panopticon is a useful tool for the critical analysis of the Whereabouts System. However, in order to properly locate the mechanism of Whereabouts within apparatus of global governance it is necessary both consider it along with the Biological Passport and consider the manner in which Foucault and others have built upon and extended the Panopticon paradigm. For if Møller is correct about one thing, the Panopticon is not the be all and end all of the story.

Beyond Panopticism

Whatever the limitations of Møller’s analysis of Whereabouts what it does reveal is that a mechanical application of Foucault’s primary text on the Panopticon does not give us the complete picture of the paradigm as it currently stands. Deleuze referred to the administration and management of life and extended Foucault’s paradigm to include that of a control society (Deleuze 1992). Oikonomia according to Agamben included “the ordered organization of the human body” (Agamben 2011:29), and “oikonomia does not merely concern the management of the house, but the soul itself” (Agamben 2011:47). Hardt and Negri (1999 & 2009) and others, such as Lazzaratto (2004), refer to the manner in which worlds, lifestyles, and forms of life, are produced and governed in a global economy. Dicey referred to administrative law’s concern with the care of social interests Dicey 1920:328-9), or Neocleous as the regulation of the internal life of the community, the regimenting of social life, or the management and direction of the population (Neocleous 2000:93). All of these concepts point in one way or another to the Panopticon paradigm’s extension and crossing of the threshold to a world of governance by way of biopower. They are all in one way or another relevant to any contemporary application of the Panopticon paradigm. I don’t want to dwell on the detail of these concepts, nor an in depth analysis of what they have in common or what differentiates them, but a cursory examination points to their relationship to the Panopticon and their relevance to the Whereabouts System.

Michel Foucault dubbed the involvement of state power into the health and wellbeing of the population, ‘biopower’. Biopower is one of the concepts by which Foucault extended the range of his Panopticon paradigm. His aim in part was by relating it to other forms of governance to show the manner in which these different forms coexisted with each other in different mixtures and concentrations at any given juncture.  He did not try to place a wall between law and discipline, or any of these other concepts in order to essentialise them, just as one cannot attempt to place a wall between his development of the concept of biopower, for example, and his work on the disciplines.

Biopower, for Foucault, was the situation where life becomes the object of power and in which what is at stake in power is the production and reproduction of life itself. Having conceived of biopower as having come into prominence during the nineteenth century (a position which Agamben has sought to refine with his work on for example Homo Sacer and oikonomia) Foucault identified two interrelated strands – the development of specific technologies of the body and the politicising of the body as a reproductive force (Andrews 1993:157-158). The shift to biopower signalled a transition in the nature of sovereignty from its classical form – where one of the basic attributes of the sovereign was the power over the life and death of his subjects (the right of the sword); towards a new form in the nineteenth century whereby power became the right to let live and to let die. This shift saw the emergence of techniques of power that were essentially centred on the body. These emerging techniques included techniques to take control of the body or bodies, and to increase their productive force. Jason Reid expands Foucault’s observation that biopower was an indispensable element in the development of capitalism in the manner that it required the controlled insertion of bodies into the machinery of production and the population’s adjustment to the processes of the economy:

“What is essential for Foucault is the manner in which the investment of the State into the life and death of the population, the environmental conditions of the cities, and the health and longevity of the working class in each case is a properly political relation forming a biopolitics. In each instance the goals of the intervention are political: Biopolitics functions to increase productivity while at the same time reducing the conditions and causes for revolt. Thus, it is more accurate to say that biopolitics works for both economic and political goals, or better, it is constituted at the point at which political power becomes inseparable from economic power” (Reid 2003:141).

In its emergent forms in the eighteenth and nineteenth centuries the techniques of biopower involve emergent fields and concepts such as the work of early demographers, the concept of public health, the medicalisation of society, insurance, risk management and the control of the human milieu and environment brought together in a economically rational way. This is the whole project of the taming of chance (Hacking 1990). Biopower initially determines its field of intervention in this period in terms of birth rates, morbidity, various biological disabilities and the effects of the environment. What is important or different from what came before is that intervention at the population level.

Biopower focuses upon the population as a “political problem … that is at once scientific and political, as a biological problem and as power’s problem”. The control of life is a task and a technique of the administration and management of collective phenomena with economic and political effects that have become pertinent at a mass level” (Foucault 2008:245-247). The techniques of forecasting, of statistical estimates and overall measures differ from the technique of discipline as they seek to intervene at the level of generality. They appear as regulatory mechanisms that seek to maintain a balance and compensate for variations within the population. They also, as part of this tendency to intervention, require security mechanisms designed to maximise and extract forces from the population. In a manner different to discipline, they no longer train the individual at the level of the individual body, but take control of life and the biological processes of man-as-species and of ensuring that they are not necessarily disciplined but regularised (Foucault 2008:245-247).

In the case of the Whereabouts System we can say that it operates at both the level of the individual body but at the same time it operates at the level of the entire population of athletes. This is what Møller fails to recognise in his critique of Foucault’s so called cul de sac – the manner in which the System produces a regularisation or normalisation of the professional cycling population, even though at the same time it might produce instances of resistance or dissent. No matter that some may try to beat the system, the overall effect, at a population level, is one of compliance, docility and as such an increase in their productive force.

Biopower’s regulatory controls encompass a vast array of collective measures undertaken to regulate the population. The disciplines constitute their own concrete form of domination and means of integration to the social order. Disciplines are, in effect, techniques of power that provide procedures for training and for coercing bodies. In this way we can consider the emerging nineteenth century science of physical education as both a disciplinary and as a biopolitical technique. Physical education provides a set of teaching methods, principles, and conditions through which a desired set of (individual) bodily practices are inculcated.  At the same time the overall effect of physical education and its promotion acts at a population level. Thus it operates at the interstices between individual (disciplinary) and collective (biopolitical or administrative) controls of the body and serve both sets of interest. Thus it should be of no surprise that Foucault regarded “medical science as the crucial link at the level of knowledge between the discipline of the individual bodies by professional groups and the regulation of populations by panopticism” (Turner 1984:33-35). In the case of sport and physical activity, the profession of physical education, human movement and later sports science and marketing themselves accomplish the function of knowledge generation.

Thus discipline and regularisation are not mutually exclusive, the latter does not replace the former, but the two are superimposed upon each other with one technology focussing upon the body, the other upon life itself. The two can be and are articulated with each other – as Deleuze might say there are no pure machines … all machines exists and coexist at any given time. In his work Foucault gives the examples of housing estates for workers and the question of sexuality to illustrate this articulation. It is the example of sexuality that gives us something close to what is at issue in sport – or at least that which provides us with a starting point to consider the manner in which sport becomes an object of power, of science, medicine and the State.  Foucault asks: why did sexuality become a field of such vital strategic importance in the nineteenth century? We could similarly ask why has the sporting body and the problematisation of doping become of such strategic importance in the twenty-first century? Foucault’s answer to his own question includes a whole host of reasons, and it is here that we can see, or at least begin to develop, the parallels between the sexual body and the sporting body. In the nineteenth century we are told sexuality as an “eminently corporeal mode of behaviour, is a matter for individualizing disciplinary controls that take the form of permanent surveillance”. Sexuality also, quite obviously, has procreative effects – it is “inscribed, takes effect, in broad biological processes that concern not the bodies of individuals but the element, the multiple unity of the population. Sexuality exists at the point where body and population meet. And so it is a matter for discipline, but also a matter for regularization”. (Foucault 2008:249-252)

It is within this context that biopower’s links with scientific knowledge begin to contribute to the tendency towards the medicalisation of society. Stepping back from Foucault for a moment we see a similar situation emerging in the nineteenth century in relation to sport and in relation to its medicalisation. Hoberman’s accounts of the history of doping – of the systematic production of “mortal engines” (Hoberman 1992); can be read as a part of the chronicle of biopower taking the sporting body and in turn the entire population as its object. Whether the object of the production of mortal engines was for sporting, or for other wider purposes, what is clear is that the new sciences of modernity – physiology, anatomy, economy etc; all used the sporting body to one degree or another as a testing laboratory for knowledge pertinent to the broader population. More recently the French sociologist Christophe Brissoneau (2010) has considered the confluence of the American system of management and doping developed in the late twentieth century with the Soviet Bloc’s methods of sports training and preparation (including doping) which form the basis of contemporary sports science and management. He has highlighted the manner in which the coming together of these two models was adopted by sports physicians in the West as the basis of a new method of managing and preparing the athlete. Importantly, in Brissoneau’s analysis, these techniques did not stand alone in the world of sport, but are inextricably linked to questions of productivity and endurance in other sectors of production – including for example the economy, industry, the military and space exploration. Hence it should be of no real surprise for us when we discover that the origins of what we now call blood doping, the very techniques which the Biological Passport (see below) was designed to tackle, have their roots in the experimentation by the U.S. Military on dogs in the 1970′s (Horstman 1974 & 1976). Similarly, as Agamben recalls in Remnants of Auschwitz, the experimentation by SS doctors on the Muselmann, which in itself suggests the link between the military and experimentation with endurance as having equally sinister roots:

“It was December, 1940 …. After a few minutes, we were all shivering from the cold; they made us run around the room to heat ourselves up, until we we were all covered in sweat. Then they said, “Sit Down”, and we did as they said. Once our bodies had cooled down, and we were once again cold, it was time for more running – and so it lasted for the whole day”. (Agamben 2002a:170)

Biopower is one manner in which Foucault asked himself the question concerning the trajectory of disciplinary societies and the development of complementary mechanisms or apparatus. In his Postscript on Societies of Control Deleuze identified himself as continuing Foucault’s brilliant analysis of the use of enclosures to compose productive forces. Deleuze highlighted Foucault’s recognition of “the transience of this model” and that “in their turn the disciplines underwent a crisis to the benefit of new forces”. Deleuze adopted “Control”, the name proposed by Burroughs “as a term for the new monster, one that Foucault recognizes as our immediate future”. Citing Virilio, Deleuze noted that ultrarapid forms of free-floating control had replaced the old disciplines (Deleuze 1992:3-4).

In another work Deleuze wrote:

“A control is not a discipline. In making highways, for example, you don’t enclose people but instead multiply the means of control. I am not saying that this is the highway’s exclusive purpose, but that people can drive infinitely and ‘freely’ without being confined yet while still being perfectly controlled. This is our future” (Deleuze, 1998, p. 18).

This is our future, to be able to move freely whilst still being perfectly controlled. Controlled in one sense denotes having to pass through gates or follow certain paths. Referring to an imagined city of

Felix Guattari, Deleuze stated that in control societies “what counts is not the barrier but the computer that tracks each person’s position – licit or illicit – and effects a universal modulation (Deleuze 1992:7). A control tends to pilot behaviour. A control is both a method of individual discipline but a normalising and regulatory instrument. A control is also the word used to describe the process by which athletes are tested within the anti-doping apparatus – athletes must pass anti-doping controls. Anti-doping controls form the basis of the Biological Passport. At the same time being subjected to the Whereabouts System controls the fluid and nomadic population of the professional cycling peloton. The peloton and its members are essentially free to move about, to train and race and to live their lives subject to the piloting and control of the anti-doping apparatus.

Biopolitical Passports

The Whereabouts System does not stand alone but is integrated into another instrument: the Biological Passport; which extends the scope and purpose of anti-doping controls. The Biological Passport is by its very nature technical and scientific and its method of surveillance and monitoring are probably more far reaching than that of the Whereabouts System. Rather than just monitoring where a particular body is at a given time, the Passport seeks to actually enter the body and measure processes occurring within them. Importantly by its very nature it also challenges traditional concepts of legal proof. Just as the disciplines depended upon and modified the operation of sovereignty and the law, the Biological Passport adapts and modifies both the nature of Panopticonism and the law. By going back to Deleuze we can begin to grasp the manner in which the Biological Passport manifests the crisis of law itself:

The apparent acquittal of the disciplinary societies (between two incarcerations); and the limitless postponements of the societies of control (in continuous variation) are two very different modes of juridicial life, and if our law is hesitant, itself in crisis, it’s because we are leaving one in order to enter the other. The disciplinary societies have two poles: the signature that designates the individual, and the number or administrative numeration that indicates his or her position within a mass. This is because the disciplines never saw any incompatibility between these two, and because at the same time power individualizes and masses together, that is, constitutes those over whom it exercises power into a body and molds the individuality of each member of that body. … In the societies of control, on the other hand, what is important is no longer either a signature or a number, but a code: the code is a password, while on the other hand disciplinary societies are regulated by watchwords (as much from the point of view of integration as from that of resistance). The numerical language of control is made of codes that mark access to information, or reject it. (Deleuze 1992:5)

As we have noted above the rationale for such an extensive surveillance regime as the Whereabouts System is to plan and conduct out-of-competition testing. The results obtained from out-of-competition testing have, in turn, provided the basis for what is known formally as the Athlete’s Biological Passport. The Passport has been heralded by the UCI as a major breakthrough and the avant-garde of anti-doping policy (UCI:2007). The Panoptic nature of the Whereabouts System should not be considered in isolation as the full picture is not drawn without reference to the Biological Passport. According to the UCI, the Biological Passport is a new tool which will allow better detection of the cheats (UCI:2007). Although the two instruments are different they stand or fall together. The UCI has stated that the provision of accurate and timely Whereabouts information is critical to the success of the Biological Passport (UCI, 2007); Whereabouts information is used to plan out-of-competition testing which serves to collect data for the Biological Passport. One function of the Biological Passport is to allow those planning the testing to better target those they suspect of doping. As one interviewee with experience in developing the Passport has stated:

… the other thing is, if they see abnormal blood results and it’s not abnormal enough that they think they can sanction or even take further steps, at least they can really be on top of them. They can test the hell out of them, they can scare them – they can scare them into awareness or into action or be, you know, make their teams aware and they will be caught, that’s the thing. Sooner or later, if that conscience is not there and they’re not aware of what they’re doing, they won’t get away with it forever. We’ve seen riders like that in the last couple of years (Hardie, Shilbury, Bozzi and Ware 2012:115).

It is of vital importance to emphasise that the Biological Passport is not used to detect the presence or absence of a Prohibited Substance or a Prohibited Method. Rather, it is used to detect the effects associated with the Prohibited Substance or Method on the human body. The logic of the approach is that if effects associated with a Prohibited Method are observable in a tested person, then perhaps that person might have been using the Prohibited Method. Equally, it must be stressed therefore that the Biological Passport only points to a probability that a person might have been using the method. It is only a tool for the indirect detection of a Prohibited Method, as no banned substance is revealed nor is any direct evidence of the use of a Prohibited Method revealed. All the science seeks and is able to compare are the parameters of a test sample, with previous samples, in order to identify any ‘abnormal’ fluctuations in an athlete’s blood values. These ‘abnormalities’ may in turn indicate a probability that a person may have been using the Method. The science and the Passport cannot say with any absolute certainty what caused the ‘abnormality’. The matter of these abnormalities is not a question of strict liability as with a positive doping test result, but the use and the privileging of one piece of indirect circumstantial evidence consisting of an interpretive opinion challenges traditional notions of legal proof.

The Biological Passport is an individual, electronic record maintained for each athlete, in which the results of all doping tests over a period of time are collated in the ADAMS system. The results are analysed using the Athlete’s Biological Passport Software (ABP Software), developed by the Swiss Laboratory for Doping Analyses. The ABP Software produces a quantitative stream of data that is, in turn, used by the UCI Biological Passport Expert Panel to determine the likelihood of doping. The Biological Passport contains results of individual urine tests, results of individual blood tests, a haematological profile consisting of the combined results of haematological parameters analysed in a series of blood samples, and a steroid profile consisting of the combined results of steroid levels in a series of urine samples. The Biological Passport allows a series of tests from each rider to be organised into a profile which enables individual limits for each rider to be established. Rather than a comparison with a population limit, it allows each test sample to be compared with the rider’s own individual ‘normal’ haematological levels.

The UCI states that any significant variations can then be assessed for possible blood manipulation and argues that a haematological profile created by the Biological Passport “opens new doors in the detection of riders who choose to manipulate their blood”. Importantly the UCI regard the Biological Passport as applying “similar principles to those used in forensic medical science to determine the likelihood of guilt” (UCI, 2007a). The veracity of this claim was questioned by Hardie et al (Hardie, Shilbury, Bozzi and Ware 2012:120ff) and is important as it points to the manner in which the law is transformed by the use of the Passport. Nevertheless, the procedure adopted is that once:

“sufficient evidence is gathered which determines guilt at an agreed level of certainty, scientific experts will recommend that the UCI open disciplinary proceedings for an anti-doping rule violation. It is expected that a profile of six tests will enable the detection of blood manipulation. In some cases, a fewer number of tests may be needed to detect doping” (Hardie, Shilbury, Bozzi and Ware 2012:116).

The penalty proscribed for such a violation is a ban from competition for two years. The accuracy of an inference that a person has used a prohibited substance and the role of the scientific experts in giving evidence before any disciplinary committee become crucial steps in the process of proof.  Again it must be stressed that the Biological Passport is only an isolated piece of material evidence, namely a piece of processed instrumental data and that, ultimately, an allegation of doping or manipulation is based only on this indirect and circumstantial evidence (measured blood parameters) as opposed to direct expert evidence (detection of a prohibited substance in a blood or urine sample – which is at law only itself a form of circumstantial evidence). Any opinion in interpreting the instrumental data is, by necessity, heavily reliant on statistics (Faber and Vandeginste 2010; Sottas, 2010). Again, these issues were canvassed by Hardie et al (Hardie, Shilbury, Bozzi and Ware 2012:138 ff).

Trust the Science

The result is that prior to any hearing, the science and expert commentary is determinative at two points – when the ABP Software analysis is undertaken and when the Expert Panel conducts its review of the Biological Passport data. At the point at which the UCI may have a discretion to open a case (following the receipt of the Panel’s opinion) the science would also seem to effectively determine the issue. In its promotion of the Passport the UCI made public statements to the effect that the national cycling federations have to trust the science provided by the Expert Panel. Traditionally, the law requires scientific evidence to be of a certain standard and requires it to be presented in a certain manner in order to safeguard the fairness of any hearing process.  Thus, in judicial processes scientific evidence should be communicated in such a manner as to allow the ultimate decision-maker to be able to weigh it against all the other evidence, including other scientific evidence that goes to its reliability. On the other hand, the UCI have insisted on the need for national cycling federations to trust the science that lay behind the Biological Passport. The role of the expert in interpreting data produced by the ABP Software and the Biological Passport itself can be readily contrasted with that insisted upon by judicial processes:

“Our rules advise them [the federations] to follow a number of steps. Obviously, these will be new and difficult cases for them and we’ve offered them any assistance the want. They also have access to our scientific experts and data. What we’re expecting them to understand is that we have the best experts in the world and that they’ve reviewed the data properly. The federations have to trust the review that has been conducted by our experts. Normally, we give them a piece of paper from the lab that says, we’ve found EPO or Nandralone, but instead we’re giving them a statement signed by three experts with data and rider profiles. We expect them to trust us” (Cyclingnews, 2009).

The Biological Passport does not involve a positive test for a banned substance. The national federations (or NADOs or ultimately the CAS), who in the end must make a decision in respect of any finding of the UCI, are asked to trust the science as proof of doping.

… you can’t expect the National Federation to be able to unravel what led to that decision. It’s not as simple as – well, that value’s that, that’s there and this here, therefore that’s doping. You can’t easily reverse engineer how you got to that decision. So, in that sense you’ve got to trust that we’ve been through this process, that was our decision, but if you’ve got another argument, you get an opportunity to challenge our opinion. (Hardie, Shilbury, Bozzi and Ware 2012:120)

Thus given the nature of the data, the science and the expert commentary, the decision to make visible the alleged act of doping, is an expert’s opinion incapable of being communicated in a way that can be unravelled by reverse engineering. Notwithstanding, the way it is expressed, the decision of the Expert Panel is no more than an opinion, and an opinion as to likelihood of doping, but, nevertheless, at this point in the process, it takes on a decisive character.

The Expert Panel’s recommendation is couched in terms of the likelihood that the cyclist in question has doped – that is as a determination “as to the likelihood of guilt”. The opinion of the Expert Panel states that there is no reasonable explanation of the blood profile other than the use of a Prohibited Method. It may be given, based on the preliminary nature of the opinion at this stage, that there is not a problem with statements “as to the likelihood of guilt” by the Expert Panel. Statements phrased in terms of the “likelihood of guilt” are not consistent with the principles to those “used in forensic medical science to determine the likelihood of guilt” (UCI, 2007). Forensic medical science in traditional legal processes does not determine “the likelihood of guilt”. Evidence based upon forensic science in judicial proceedings must be set out in a particular way so as to guard against the expert’s opinion usurping the role of the decision-maker. It must comply with the rules of evidence. The Biological Passport cases decided by the CAS have sought to rely upon Article 3.2 of the WADC (Methods of Establishing Facts and Presumptions) that states “[f]acts related to anti-doping rule violations may be established by any reliable means”. The explanatory note to that Article states that, for example, a NADO may establish an anti-doping rule violation based on “conclusions drawn from the profile of a series of the Athlete’s blood or urine Samples”.  Similarly, the comments to Article 2.2 state that:

“[i]t has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means” and continue that these include conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence”of a Prohibited Substance under Article 2.1”.

The WADC appears to studiously not refer or use the word ‘evidence’ in its provisions on the proof of doping. However, both the claims of the UCI and Dr Sottas point to a comparison with the traditional methods of proving facts by the use of forensic or scientific evidence. The problem with the reasoning of the CAS in these cases is that the reference to “any reliable means” appears to widen the scope of the method of proof beyond that which would be required for that means to constitute evidence in the legal or judicial sense. If one trusts the science and ignores traditional methods of proving facts by forensic science the phrase “any reliable means” appears to be able to roam at large.

The point here is that the reception of scientific evidence and, in particular, evidence which interprets data based upon the types of statistical evidence, such as that which underpins the Biological Passport, has been strictly controlled by the courts in order to ensure that any legal process is conducted fairly and without prejudice to the accused. The courts are also vigilant to ensure that the expert does not usurp their position as the decision maker. From an examination of the law it is apparent that if the opinion of the expert in a Biological Passport case is phrased in terms of the “likelihood of guilt” then it is not used in accordance with the principles applied to the reception of forensic medical science by courts. In fact, the manner in which evidence of the Passport is presented is in contradiction to those principles. If this is the case, the opinion of the expert would be inadmissible as reliable evidence (see for example Redmayne, 1996). Its basis as a reliable means of proof in the context of a court must therefore be questioned. Redmayne clearly states the distinction between the permissible and impermissible manner of giving expert opinion:

“The expert’s error lay in confusing two different questions, namely: (1) What is the probability of finding the evidence, given that the defendant is innocent? (2) What is the probability that the defendant is innocent, given the evidence? The difference between the two questions may not be immediately obvious, but it should become clear when two different questions which have the same logical structure are considered: (1) What is the probability that an animal has four legs, given that it is a cow? (2) What is the probability that an animal is a cow, given that it has four legs?’”

The difference between the two ways of framing the evidence of the expert’s opinion can be seen if we frame the statements in terms relevant to the Biological Passport:

1)      What is the probability of the abnormal blood value given the athlete has been at altitude?

2)      What is the probability that the athlete is innocent (of an ADRV) given the abnormal blood values?

3)      What is the probability of the abnormal blood value given the athlete has blood doped?

4)      What is the probability that the athlete has blood doped (and is guilty of an ADRV) given the abnormal blood values?

Statements 1) and 3) would be permissible as evidence, whereas statements 2) and 4) would not be permissible. The WADA Guidelines state the Expert Panel’s opinion in terms of their being high probability that the athlete blood doped given the blood values – that is, in the impermissible form similar to 2) and 4). The impermissible form is known as the Prosecutor’s Fallacy. In the Biological Passport process, the Prosecutor’s Fallacy is institutionalised at the point of the Expert Panel giving their ‘opinion’. The problem for the anti-doping apparatus is that it requires a method to make visible something that the law has been incapable of visualising. The functional purpose of the Biological Passport is exactly to overcome this problem. The result is that rather than a legal question decided according to legal standards of evidence, the proof of the determination of doping becomes an administrative and technical decision based upon scientific and statistical standards. The Biological Passport seeks to penetrate a space which the law cannot. It seeks to see what the law cannot see, or as Agamben has written in the world of biopower “the pysician and the scientist move into a no-mans land which at one point only the law and sovereignty could penetrate …“(Agamben 1998:159). The proof of doping is no longer a legal question but a scientific one in which the law can only blindly trust.

The Great Observer

Returning to the question of the Panopticon paradigm, Foucault was well alive to the coming of control societies. In noting that “The ‘Enlightenment’, which discovered the liberties, also invented the disciplines” (1991:222) Foucault  asked:

“What Great Observer will produce the methodology of examination or the human sciences? ….The ideal point of penalty today would be an indefinite discipline: an interrogation without end, an investigation that would be extended without limit to a meticulous and ever more analytical observation, a judgement that would avoid at the same time be the constitution of a file that was never closed, the calculated leniency of a penalty that would be interlaced with the ruthless curiosity of an examination, a procedure that would be at the same time the permanent measure of a gap in relation to an inaccessible norm and the asymptotic movement that strives to meet in infinity.  The public execution was the logical culmination of a procedure that was governed by the Inquisition. The practice of placing individuals under ‘observation’ is a natural extension of a justice imbued with disciplinary methods and examination procedures. Is it surprising that the cellular prison, with its regular chronologies, forced labour, its authorities of surveillance and registration, its experts in normality, who continue and multiply the functions of the judge, should have become the modern instrument of penalty?” (Foucault 1991:227-228)

In constructing this new alliance between doping and the law and in opening up a new manner in which the invisible can be visualised many of these features of this Foucauldian (or Kafkaesque) Great Observer to come are present. The Whereabouts and Biological Passports operate as indefinite disciplines and as interrogations without end. They operate and extend without limit a meticulous and ever more analytical observation of the daily aspect of life and the internal functioning of vital aspects of the body. They constitute through the ruthless curiosity of an examination a file that is never closed and that seeks to close a gap between the unprovable and invisible (at law) act of doping – they operate between the invisible act and the inaccessible norm. They are the natural extension of the disciplines manifested by the practice of placing individuals under permanent observation.

In such a procedure and increasingly in a society of biopolitical control based upon an accounting of the body and bodies – the administration of bodies using techniques such as continual monitoring and surveillance, the internalisation of control and an instrumental or functional rationality; the old law’s techniques of deciding disputes after the event of their occurrence are replaced. Moving away from Foucault, Bauman’s analysis of the Holocaust’s rational administrative machinery exposes the connection between the bureaucracy, the task of administration and that of biopolitical control:

“Bureaucracy started from what bureaucracies start with: the formulation of a precise definition of the object, the registering those who fitted the definition and opening a file for each. It proceeded to segregate those in the files from the rest of the population, to which the received brief did not apply. Finally, it moved to evicting the segregated category from the land of the Aryans which was to be cleansed ….” (Bauman 1989:105).

Bauman’s description of bureaucracy can be readily mapped onto the outline of the anti-doping apparatus set out above. The elements of this apparatus are consistent with the elements described by Bauman. But in this case they are distributed throughout a network on a global scale.

Consistently with Bauman we have present a precise definition of the object of the ideology: to cleanse sport of the doper who is a threat to the ethical order of the level competitive playing field of sport; the identification and location of the object: by way of the regime of in and out of competition urine and blood testing, including the Whereabouts and Biological Passport systems; the opening of a file for each object: ADAMS and the Athlete’s Biological Passport; the segregating of those in the files: the sorting of results by the ABP Software and then by the Biological Passport Expert Panels; and, the evicting of the segregated categories: by way of anti-doping rule violation cases decided by disciplinary arbitration, bans imposed or by the spectacle of moral/media/institutional/public condemnation.

In successfully carrying out these five steps, the three manifestations (and perpetrators) of Bauman’s description of instrumental rationality are also present and all work in tandem: the machine (The Whereabouts System, ADAMS, blood and urine sampling and analysis, ABP Software, and the Biological Passport itself); the professional (sports officials, accountants, the information technologists, statisticians, blood and physiological scientists, psychologists, academics, anti-doping lawyers); and the bureaucracy (the National Governments, NADOs, The International Olympic Committee, national and international sporting organisations, corporate and state sponsors, WADA and the CAS).

What we are faced with is a very different machine to that of the boundary retained, backward looking, dispute resolving system of the old law of the State system. In this world of biopolitical governance, as described above by Foucault, and just like in Kafka or Lewis Carroll, everyone is potentially guilty. The system demands, that, rather than waiting for an offence to occur and become visible, the anti-doping apparatus must actively search out abnormal bodies. The administrative machinery extends globally to all places and all times. The system demands that in situations where the processes of the law cannot see, that the expert and their commentary visualise the invisible. Thus process constitutes the invisible as visible and in turn decides which of these bodies are not worthy of remaining within the system, and therefore must be segregated.

This space of surveillance not only locates and makes visible the physical location of each individual cyclist it also in turn makes visible their internal bodily functions, in this case the composition and the fluctuations of the composition of their blood. The combination of the Whereabouts System and the Biological Passport in making the cyclist visible does not allow the cause of doping, or the event of doping to be known or observed, but rather it casts the body in terms of abnormalities whose cause cannot be identified with any certainty, but which suggest that doping may have occurred.

The ultimate effects are twofold. Firstly, an internalisation and continual monitoring of one’s self at a personal and at a population level, coupled with the monitoring by the authorities. Secondly, a radical change in the nature and the definition of the offence of doping. No longer is it positive evidence of doping that is punishable, but what becomes punishable is an abnormality, in the cyclist’s location, or their body, which suggests a probability that the invisible act of doping may have occurred. In the course of this process accepted manners of proving an offence through evidence are transformed.

The Whereabouts System and the Biological Passport open up a new manner in which the invisible can be visualised. Through its discourse and the attendant commentary of the expert a new alliance between doping and the law is constructed. It is a redistribution of the way in which the law treats the symptoms and the signified act of doping.

Faced with the coming of this apparatus of control, one must ask: “Is this our future as well?”

References

Agamben, G. 1998. Homo Sacer, Sovereign Power and Bare Life. Stanford University Press, Stanford.

Agamben, G. 2002a. Remnants of Auschwitz, The Witness and the Archive. Zone Books, New York.

Agamben, G. 2002b. What is a Paradigm? Lecture at European Graduate School. August 2002. http://www.egs.edu/faculty/giorgio-agamben/articles/what-is-a-paradigm/ Accessed 31 December 2012.

Agamben, G. 2011. The Kingdom and the Glory, For a Theological Genealogy of Economy and Government. Stanford University Press, Stanford.

Andrews, D. 1993. Desperately Seeking Michel: Foucault’s Genealogy, the Body, and Critical Sport Sociology. Sociology of Sport Journal, Vol. 10 No. 2 pp. 148.

Bauman, Z. 1989. Modernity and the Holocaust. Cornell University Press, Ithaca, NewYork

Berman, P. 2005. From International Law to Law and Globalization. Columbia Journal of Transnational Law, Vol. 43, p. 485.

Boardley, I. D. and Kavussanu, M. 2008. The moral disengagement in sport scale-short. Journal of Sports Sciences 26: 14, 1507-1517.

Briginshaw v Briginshaw (1938) 60 CLR 336.

Brissoneau, C., 2010 Doping In France (1960-2000): American And Eastern Bloc Influences, Journal Of Physical Education & Sport; Vol. 27 Issue 2, P33.

Coleman J.E., & Levine J.M. 2011. The burden of proof in endongenous substance cases: a masking agent for junkscience. In McNamee, M. And Møller, V (eds) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives, Abingdon: Routledge.

Cyclingnews 2009. Benson, D. Exclusive: Anne Gripper breaks silence on blood passport, Cyclingnews. http://www.cyclingnews.com/features/exclusive-anne-gripper-breaks-silence-on-blood-passport. Last Accessed 31 December 2012.

Debord, G. 1995. The Society of the Spectacle. Zone Books, New York.

Deleuze, Gilles. 1992. “Postscript on the Societies of Control”, OCTOBER 59, Winter 1992, MIT Press, Cambridge, MA, pp. 3-7.

Deleuze, Gilles. 1998. “Having An Idea In Cinema.” trans. Eleanor Kaufman. Deleuze and Guattari. In New Mappings in Politics, Philosophy and Culture. eds. E. Kaufman and K. J. Heller. Minneapolis: University of Minnesota Press.

Dicey, A.V. 1920. Introduction to the study of the Law of the Constitution. MacMillan and Co Limited, London.

Dimeo, P. 2007. A History of Drug Use in Sport, 1876–1976, Beyond Good and Evil. Routledge.

Dostie, M. 1988. Les corps investis éléments pour une compréhension socio-politique du corps

Editions Saint-Martin in Montréal, Québec.

El Mundo 2011. Cronología del ‘caso Alberto Contador’. El Mundo Newspaper,

http://www.elmundo.es/elmundodeporte/2011/02/15/ciclismo/1297794357.html. Accessed 31 Decemeber 2012.

Faber, N., and Vandeginste, B. 2010. Flawed science ‘legalized’ in the fight against doping: The example of the biological passport. Accred Qual Assur, March.

Foucault, M. 1978. The Will to Knowledge, The History of Sexuality: 1. Penguin, London.

Foucault, M. 1991. Discipline and Punishment, the Birth of the Prison. Vintage Books, New York.

Foucault, M. 2008. The Birth of Biopolitics, Lectures at the College of France, 1978-1979. Palgrave Macillan, Hampshire.

Hacking, I. 1990. The Taming of Chance. Cambridge University Press.

Hanstad, Dag Vidar and Loland, Sigmand. 2009. Elite Athletes’ Duty to Provide Information on their Whereabouts: Justifiable Anti-doping Work or an Indefensible Surveillance Regime? European Journal of Sport Science, January 1.

Hardie, M. 2011. It’s not about the blood, Operacion Puerto and the end of Modernity. In McNamee, M. And Møller, V (eds) (2011) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives. Abingdon: Routledge. Originally published as No va sobre la sangre, Operación Puerto y el fin de la modernidad, NÓMADAS Revista Crítica de Ciencias Sociales y Jurídicas/Critical Review of Social and Juridical Sciences. 25, Enero-Junio. 2010 (I), Universidad de Compultense, Madrid, Spain.

Hardie, M., Shilbury, D., Bozzi, C., and Ware, I. 2012. I wish I was Twenty One Now, Beyond Doping in the Australian Peloton. Auskadi Samizdats, Geelong, Bilbao and Ossu.

Hardt, M. and Negri, A. 1999. Empire. Harvard University Press, Cambridge, Massachusetts.

Hardt, M. and Negri, A. 2009. Commonwealth. Harvard University Press, Cambridge, Massachusetts.

Hoberman, J. 1992. Mortal Engines: The Science of Performance and the Dehumanization of Sport. The Free Press, New York.

Horstman, D H., Gleser, M., Wolfe, D., Tryon, T., and Delehunt, J., 1974 Effects of hemoglobin reduction on VO2 max and related hemodynamics in exercising dogs. J Appl Physiol July 1974 37:(1) 97.

Horstman, D H., Gleser and Delehunt, J., Effects of altering O2 delivery on VO2 of isolated, working muscle. Am J Physiol February 1, 1976 230:(2) 327.

Houlihan, B. 1999. Dying to win: Doping in sport and the development of anti-doping. Strasbourg, Council of Europe Publishing.

Kreft, L. 2009. The Elite Athlete – In a State of Exception? Sport, Ethics and Philosophy 3(1) April 3-18.

Landaluze. 2006. UCI v L & RFEC. CAS 2006/A/1119 19 December 2006

Lazzarato, M. 2004. From Capital-Labour to Capital-Life. Ephemera 4(3): 187.

Long, T, Pantaléon, N, Bruant, G & d’Arripe-Longueville, F. 2006. A Qualitative Study of Moral Reasoning of Young Elite Athletes. The Sport Psychologist 20: 330.

Lucidi, F, Zelli, A, Mallia, L, Grano, C, Russo, P, Violani, C. The social-cognitive mechanisms regulating adolescents’ use of doping substances. Journal of Sports Sciences, Volume 26, Issue 5, pages 447-456.

Marazzi, C. 2011. Capital and Affects, The Politics of the Language Economy. Semiotext(e), Los Angeles.

McLaren, R.H. 2006. CAS Doping Jurisprudence: What can we learn?. 1 International Sports Law Review 4.

Møller, V. 2011a. One step too far – about WADA’s whereabouts rule. International Journal of Sport Policy and Politics. Volume 3, Issue 2, July 2011, 177.

Møller, V. 2011b. The Scapegoat, About the Expulsion of Michael Rasmussen from the 2007 Tour de France and Beyond, Akaprint, Aarhus.

Neocleous, M. 2000. Fabrication of Social Order: A Critical Theory of Police Power. Pluto Press.

Perth Now. 2011. http://www.perthnow.com.au/news/western-australia/dole-drug-tests-homeswest-reform-proposed-at-wa-liberal-conference/story-e6frg13u-1226447842448

Redmayne, M. 1996. Presenting probabilities in court: The DNA experience, 1996-97. The International Journal of Evidence and Proof, 187.

Read, J. 2003. The Micro-Politics of Capital, Marx and the Prehistory of the Present. State University of New York Press, New York.

Soek, J. 2006. The Strict Liability Principle And The Human Rights of Athletes in Doping Cases. Asser Press, The Hague.

Sottas, P. E., Robinson, N. & Saugy, M. 2010. The Athlete’s Biological Passport and Indirect Markers of Blood Doping, Doping in Sports: Biochemical Principles, Effects and Analysis. Handbook of Experimental Pharmacology, 195: 305-326.

Straubel, M.S. 2009. Lessons from USADA v. Jenkins: You Can’t Win When You Beat a Monopoly. 10(1) Pepperdine Dispute Resolution Law Journal 119.

Thatcher, M. 1981. Interview for the Sunday Times – The First Two Years. The Sunday Times. http://www.margaretthatcher.org/document/104475. Accessed 31 December 2012.

Turner, B.S.1984. The Body and Society. Basil Blackwell, Oxford.

UCI. Anti-Doping Rules of the UCI – Part 14 of the UCI Regulations.

UCI. 2007a. Information on the Biological Passport http://www.uci.ch/Modules/ENews/ENewsDetails.asp?MenuId=&id=NTQzOA&LangId=1. Accessed 31 December 2012.

UCI. 2008a. Whereabouts & location forms

http://www.uci.ch/templates/UCI/UCI2/layout.asp?MenuId=MTI1Njk.

Accessed 31 December 2012.

Waddington, I., Surveillance and control in sport: a sociologist looks at the WADA whereabouts system, International Journal of Sport Policy and Politics Volume 2, Issue 3, 255-274

WADC. World Anti-Doping Code. http://www.wada-ama.org/en/world-anti-doping-program/sports-and-anti-doping-organizations/the-code/. Accessed 31 December 2012.

WADA International Standards. http://www.wada-ama.org/en/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/International-Standards/. Accessed 31 December 2012.

XZTT and Anti-Doping Rule Violation Panel [2012] AATA 728. http://www.austlii.edu.au/au/cases/cth/AATA/2012/728.html. Accessed 31 December 2012.

Martin Hardie

The self published English translation of Møller ‘s book on Michael Rasmussen (Møller, Verner. 2010a. Løgn over løgn – om Michael Rasmussens Tour de France exit, Copenhagen, People’s Press) is an important and necessary contribution to our understanding of the manner in which sport is administered in contemporary times. It also provides yet another example of the manner in which law is increasingly played out in what Guy Debord dubbed the Society of the Spectacle. Rasmussen’s story deserved to be told and there is probably no one who could have gained his trust and done the job better than Verner Møller .

In saying this and in the interests of disclosure I must say that I count Møller as a friend and a colleague and that through him and other former teammates of Rasmussen’s I have come to know and like the Danish climber. Possibly also it is because of this I can also say that in reading and commenting on the drafts of this book Møller and I probably came close to blows! Only in the academic sense of course.

It is probably no secret that I find the liberal analysis of the current state of sport and sports law deficient in so far as it tends to hark back to a state of affairs, which if they ever existed at all, clearly don’t exist today. But then again one of the things that makes Scandinavia such an interesting place is its tenacious belief in a classical liberal and even a social democratic world view. It is in many senses an island within a neoliberal globe in this respect. Although, sometimes reading the work of my Scandinavian colleagues, I feel the frustration of Sarah Lund in the Danish police show, The Killing, or that of Wallander – the restraints of the kid gloves dressed up as human rights with which they are compelled to treat the bad guys. None of this exists, in contrast, to the more pragmatic and gritty approach of the crew in the French policial Spiral, and its heroine Laure Berthaud, who get to the core of the issue as they bang the heads of the bad guys against the wall.

But back to sport, and or the law and Møller’s book. I am in no doubt that what happened to Michael Rasmussen was a sporting crime of monumental proportions and that in perpetrating this crime the rule book was conveniently thrown out the window. In our report “I Wish I was Twenty One Now – Beyond Doping in the Australian Peloton” (Hardie et al 2010) we included one quote in respect of Rasmussen. The question and the response of the interviewed professional cyclist put into context the gravity of the events that took place in Pau in July 2007:

Q: Are you ever amazed that Rasmussen is still alive? I actually think sometimes, I really seriously am amazed that he hasn’t committed suicide.

A: Yeah, that was I think an oversight on Rabobank’s point of view, I don’t know. I was there and I’m part of that team and I don’t know enough about that. But I think it was an oversight on them when they kicked him out of the tour, to leave him alone that night. They put him in a hotel room 100km up the road or something, with that, driven there by a PR lady or something. Really, somebody should have been on suicide watch.

Q: Well, I’m still amazed about it.

A: Taking the Holy Grail away from somebody.

As Møller painstakingly documents the leader, and at that point probable winner of the race, was ‘retired’ by his team (and his life destroyed) for no better reason than to quell a media storm played out in Debord’s Spectacle. Møller’s documentation shows us that Rasmussen was not in breach of any rules that justified his exclusion from the race or that warranted a wider ban. If he had been would not the UCI or the race organisers themselves excluded him? To me Rasmussen seems to have been the victim of a (to be trite) ‘perfect storm’ of circumstance – amongst other things the UCI’s desire to appear to be winning the war on doping and the cycling media’s complicity in this (although to describe them as media in the classical sense might be a bit of a stretch – they are after all for most parts a marketing machine for the industry as such). Along with this there is in Rasmussen’s case always the sneaking suspicion that other vested interests had a role to play in stirring the pot. Interests which thanks to that other banished cycling figure, Floyd Landis, might just now be starting to come unstuck.

What still troubles me with this book is essentially what troubles me with much sports scholarship – its almost naïve analysis of the manner in which the law or better governance operates and some of the assumptions which support that analysis. In order to illustrate the point I will refer to two assumptions which I feel hinder our analysis of sports law and and administration and underpin the way Møller and others see the world.

Firstly, is the criticism levelled by Møller and others that anti-doping law is not consistent with traditional notions of the rule of law and the separation of powers, particularly the separation between judicial and executive powers. This in fact appears to be a point that Armstrong is seeking to make in his defence to USADA’s accusations against him. It is this premise that, to a large part, underlies Møller’s analysis and is made explicit in the quoting of the United States journalist Hiltzik:

“What has evolved to protect competitive purity since then [the establishment of WADA] is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals and challenges” (Møller 2011:281).

What this perspective fails to consider is a complex matter, worthy of an essay or book in itself, but in short it overlooks that the rule of law is not something with an essence, but that it changes and has changed over time and in different circumstances. Our rule of law today is not that of Dicey’s a hundred or so years ago. Furthermore, it overlooks the fact that anti-doping law is a part of a global system of administrative law. Administrative law has traditionally and by its very nature operated within the executive branch of government, subject only to the supervisory check of a Court for breaches of fundamental aspects of the law, such as natural justice or ultra vires. It was this in part that Dicey so vehemently objected to in his analysis of the French system. In the case of the contemporary global system, whether we like it or not, the Swiss Courts are said to provide that check. Furthermore, the analysis overlooks the fact that there is an increasing movement whereby administrative and regulatory procedures take the place of the classical liberal conception of law and the judicial system. Sport is not an island in this respect and is time for sport’s scholarship to recognise this.

Secondly, I am uncomfortable with what I call the ‘sporting rule approach’, that is the argument that anti-doping law is the same as, or similar to, any other sporting rule (for example off side in football) and is thus deserving of only a sporting penalty. Anti-doping is in reality more than a sporting rule – in many cases the act of doping has become (whether we agree or not) a criminal offence with penalties well beyond that of the bans contained in the World Anti-Doping Code. But from the viewpoint of a large body of legal scholarship there is also a more fundamental objection to this assumption. Desautels-Stein (2012), following Rawls and others, illustrates this clearly. On this analysis there are two types of rules: background and foreground. Without background rules a legal concept (such as a sport) does not exist. The background rules are constitutive of the sport – they are the rules of the game and constitute the game. There is no such thing as golf without the Royal and Ancient’s (background) Rules of Golf. Foreground rules are different in their nature, they are regulatory and not constitutive. Without the foreground rules of anti-doping golf would still exist as a concept – the lack of anti-doping rules does not mean golf fades into nothingness as a concept. The role of foreground rules is take as a given some prior activity, such as the market, golf or road cycling, and seek to control or regulate that activity in some way. I was reminded recently of this on a visit to East Timor. Traffic rules may seek to regulate driving but they do not create or constitute the activity of driving. The point is that anti-doping rules are not mere sporting rules, they are not constitutive of the sport in question, but seek to regulate a pre-existing activity, in this case an activity known as sport in its various forms.

With these reservations I can only commend Møller’s book to sports fans and to sports scholars. It is an important contribution to the field and deserves much wider recognition, as does the story of Michael Rasmussen. It reminds us of one fundamental proposition put forward by Møller and which cannot be disputed – that those that make, implement and administer the rules themselves should follow those same rules. It is a principle that even the Court of Arbitration in Sport upheld as far back as 1994:

“The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorized bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.” (CAS 1994)

Sadly, as Møller painstakingly documents, but not unsurprisingly, this did not happen in Rasmussen’s case.

References

CAS 1994, USA Shooting & Quigley v UIT (CAS 94/129), see also Tchachina v the International Gymnastics Federation (CAS 2002/A/385) UCI v Landaluze and RFEC (CAS 2006/A/1119) Kaisa Varis v. International Biathlon Union (CAS 2008/A/1607)

Debord, G., (1995) The Society of the Spectacle, Zone Books, New York.

Desautels-Stein, J., (2012) The Market as a Legal Concept, Buffalo Law Review 2012 Vol. 60 387.

Dicey, A.V., (1920) Introduction to the study of the Law of the Constitution, MacMillan and Co Limited, London.

Hardie, M., et al (2010) “I Wish I was Twenty One Now – Beyond Doping in the Australian Peloton”, Deakin University, Geelong, http://www.newcyclingpathway.com/wp-content/uploads/2010/09/21-NOW-FINAL-.pdf

Dear Mr. Hardie,

I refer to an article you have recently written published at: http://www.elpais.com/articulo/deportes/Verbruggen/SA/Dracula/frente/banco/sangre/elpepudep/20111007elpepudep_11/Tes
Allow me to express my anger and disappointment that you, as a Lecturer at the Deakin University of Australia have bowed so low as to publish such unfounded comments. You state that ‘Y al decirlo es como si describiera a su propio patrón, a Verbruggen, al mismo Verbruggen que, muchos dicen, tiene su dedo en muchos pasteles financieros y vínculos de negocios que, como poco, suponen un grave conflicto de intereses.’ As an academic, such unfounded claims of conflicts of interest without any proof, based solely on rumours, show a profound lack of professionalism on your part.

Having never met you personally, your accusations are defamatory and I would warn you to exercise restraint and journalistic professionalism in your research prior to publishing further such claims. While I do not aim to defend myself here, you should be aware that I have fought to uphold the standards of transparent and ethical practices in doping eradication both during my time as President of the UCI and now as President of SportAccord. I have enabled and driven my organisation’s dedicated focus to combating match-fixing and to establishing good governance in sport.

My disappointment is profound, but trust that in the future your publications pronounce fact and not fiction and serve to benefit those who are working so hard to ensure good governance in sport.

Yours sincerely,
Hein Verbruggen

On 29/11/11 7:31 PM, “Hein Verbruggen” <Hein.Verbruggen@sportaccord.com> wrote:

Hein Verbruggen would like to recall the message, “El Pais article”.

Whereabouts are we?

In my work on Operacíon Puerto (Hardie 2011) I opened by reference to Verner Møller’s End Of Modernity and the thesis (Møller 2004), which, put briefly, argues that the coming of global anti-doping law signals an end to ‘Enlightenment principles’. In order to make my point clearer, and to avoid any misunderstanding, it is appropriate to do so again. The immediate response by some to this problem appears to consist of an argument, that if this is the case, and if current anti-doping policy is ipso facto ‘irrational’, the problem can be resolved by a return and adherence to such ‘Enlightenment principles’ and furthermore the principle of the rule of law.

I do not disagree with Møller’s insightful assessment that anti-doping law does signal a new way of doing law or governance. I do not disagree – in fact I have been at pains to point out in my work on Operacíon Puerto; that there does in fact exist a moral panic surrounding the question of doping in sports. But, from my perspective, this is only the beginning of any enquiry, to state that there is a moral panic or crisis, and that anti-doping constitutes a new way of doing law, is doing no more than merely stating the obvious.  If an anti-doping critique is to mature beyond simply pointing out the obvious, I argue that what we need to do is, firstly to come to grips with the present conjuncture, analyse how it is different from the past, and only after that can we then begin to think about other ways of doing law, or anti-doping. It is in this way that we can, at least, try to avoid the trap of a romantic longing for a return to the glory days of a bygone era of ‘Enlightenment principles’ or some pure and/or objective theory of the rule of law.

For present purposes, I do not wish to tackle headlong the recieved wisdom that there is only one set of objective rational principles which we can derive from the Enlightenment, or that as such there is only one rationality and one logic that is applicable to thinking about the world. I regard this approach as an overly Eurocentric view of the world, bordering, in fact, on a rascist model. Browning for one reminds us that modernity is a highly generic term and that key components of modernity, such as the Enlightenment and reason, are interpreted in various ways. “[R]eason is not one thing” he states, “the several ways in which reason is invoked and used by modern thinkers raises questions over the supposed unity of reason and the Enlightenment Project” (Browning 2011:5).

My position should be clear: yes, moral panic in the guise of just war – backed by the state of exception and the police, and played out in the global society of the spectacle; is one of the principal forms of contemporary governance (Hardie 2011). Is the answer to this irrational policy and this moral panic adequately countered by a call to return to ‘Enlightenment’ principles? To the logic and rationality of European modernity?  My position, which I will attempt to further illustrate here, is plainly, no, this is not the case. Underlying my argument is that such a response itself is as emotional, irrational and as romantic as the panic it seeks to criticise. This response fails to grasp the contemporary context in which ‘globalisation’, generally, and anti-doping policy, particularly, is taking place. It poses the problem that Agamben raised when he suggested those who sought a return to the rational forms of the law of the sovereign state have lost the keys to the scriptures of law, and appear as such themselves lost in our contemporary age (Agamben 2005:ref).

Below, I will discuss two principle forms of law, which we might dub, with ease of shorthand, but for want of a better description, modern and post-modern, sovereign and administrative, or even State and Imperial. In doing so it may be suggested that it is not clear on which side of the fence I sit – which form of law I favour. But, it should be apparent, from what I have already stated above, that this response is itself misconceived. This is not an argument as to one form of law being better, or more ‘just’ than another. Rather, this is an attempt to highlight, which form of law is presently and apparently dominant, or at least, emerging as such on a global basis. If pushed, my position is that, neither form of law is preferable, and the task is not to accept one or the other as a given, that is to strive to return to the past, or to accept the other as the way things are now done. The point is, simply, that with an understanding of both (or all) forms of law we can then begin to conceptualise a version of justice that is “better” (Aristotle1981:197-200) equipped to deal with a global and hybrid world.

Weber and Formal Law

Our ideas or conceptions about what law is, or, how we define law, are influenced in many ways by a form of law that found its high-water mark in the nineteenth century. In the Anglo system Dicey’s conception of the rule of law is pervasive. On the continent, Weber conceived of a similar form of law that was consistent with what he called Modern Rational Capitalism. Below, we will consider aspects of this formal form of law, as understood by both Dicey and Weber, upon which our popular conceptions of law are based.  However, as we will see, even Weber was aware that this form of law was itself in the process of deformalising. Dicey’s consideration of Continental administrative law assists us in understanding how the rule of law itself was construed differently in the Anglo system and on the Continent, and furthermore the contribution that the Continental system of law has had on law’s deformalisation (Weber 1978:880ff).

Along with the separation of powers, which we will come to below, other recognisable characteristics of both these conceptions of the form of law, include that such a system of law emanates, and derives its force from sovereign command. In particular, this form of law emanates from a national sovereign who has exclusive power to rule and command over a definable territory and people. Already, it should be apparent that this particular criteria is not consistent with the situation we are attempting to deal with – the regime constituted by the World Anti-Doping Code (WADA 2009) (WADC) is not one that emanates from a single sovereign source, nor an agreement between sovereigns in the sense of Public International Law.

Law in such a situation also acts by way of a generality – it establishes a class of circumstances, things and people to which the norm that it states applies. The hallmark of this form of law is a rule of conduct or a declaration as to power, right or duty, in which some factual requirements are delineated that connect it to a given state of affairs and which are applied retrospectively (High Court of Australia 2003). Law does not look to the future in what it judges, but to past events. Importantly, the rule of law applies equally to all those who find themselves within that definable people and territory. Subsequently, all those who are subject to this form of law have recourse to the national system of courts existing within the given territory of the sovereign. These courts decide disputes after they arise – they decide past events according to legal principle. The independence of the sovereign courts provides the entire system of law with its means of legitimisation.

The fact that law applies equally to all within the territory of a single sovereign is one of the characteristics that Weber points to which distinguishes it from the forms of law that preceded it. According to Weber, Modern Rational Capitalism’s law was preceded by particularist modes of closed, private and consensual forms of law. These forms tended to be either patrimonial or magico-religious, and they operated by way of the differential application of rules to different social groups, in different localities, within, and which transcended in certain circumstances, the boundaries of the nascent State: Guilds, the church and local custom were prime examples (Weber 1978:880ff). Lex Mercatoria was another example that clearly transcended state boundaries (Hardt & Negri 2004:169ff).
Weber believed that the creation of the ‘rational’ capitalist market economy (which we can later distinguish from the capitalist monopolistic economy) required the demise of the particularist mode of creating law that had prevailed in the Middle Ages, or the granting of privileges of monopoly to certain closed organizations: for example printers monopolies over books in early copyright law or the clergy and ecclesiastic law – that is different laws for different social groups or orders. This movement away from the particularist mode of creating law reduced the autonomy of organized status groups in two ways: by regulating non-state organisations, and secondly, by removing the power of persons to create law by private ordering (Weber 1978:880ff).
Weber argued, that what Modern Rationalist Capitalism required, and hence what it produced, was a calculable and uniform form of law. Such a stable and uniform legal environment was necessary to guarantee the needs of the growing market. Calculable law comprised abstract formal rules and regulations, non-arbitrary adjudication of legal questions especially relating to economic production, enforceable contracts, and predictable economic rights. With this calculable law the level playing field of the formal free market economy could flourish. Calculable law was accompanied by the rational bureaucratisation of the state, which itself reduced the autonomy of the forms of particularist law and limited the ability of those who had participated in them to create law by means of engaging in private agreement. Rather than law created by private agreement, henceforth ‘rational’ law would emanate from the single sovereign source of a parliament. Thus, the transformation of these particularist, autonomous systems was driven politically by the growing strength of the State, and economically by the formally free competitive struggle of a market economy. The privi-leges attached to the old forms of autonomy where perceived as not being functional, to either, the law or the market, and as such the consolidation of Modern Rational Capitalism. Calculable and formal(istic) law, calculable accounting and market relations, all of which applied equally to all: that is, citizens who themselves were formally equal before the general law and the market. Such a form of law emanated from a single sovereign source, and underpinned the consolidation of Weber’s Modern Rational Capitalism.

As noted above, patrimonial, magico-religious, local or particularist autonomy involved discretion, which was perceived as beyond measure and calculation, and was hence characterized as abhorrent to the needs of Modern Rational Capitalism. Discretion itself was identified with absolute power, and in particular royal or monarchial prerogatives, exercised without the control of parliaments or the courts. As we will see below, Dicey also viewed the exercise of discretion as something contrary to the rule of law, and it is not without coincidence that during this period, others, such as Bentham, argued against the common law  – and its system of judge made (read arbitrary) law; and in favour of codification. It should also be noted, that in contrast to this period, today private agreement has reemerged as a primary source of transnational (as opposed to national or international) law. The whole sporting and anti-doping law edifice is built upon the rhetorical bedrock of private agreement and discretion – a concept inherently related to the concept of administration, the executive and the police.

Dicey and the Law of Constitution.
Like Weber, Dicey saw law as being impersonal – that is it applied to an authority based upon an office and not a person – a position summarised by the phrase, which has its origin in Harrington’s (1656:35) The Commonwealth of Oceana, – a government (or empire) of laws and not of men. Law as such is embodied in abstract rules, which applied universally to all, and, is not aimed at any particular individuals, groups or classes of people. As a result, and importantly, it is this abstract notion of transcendent law that governs things and not the whim of mere fallible mortals, or for that matter an administrative practice.
A.V. Dicey advocated a theory of the ‘rule of law’, which still holds, without questioning for the most part, a very strong currency today. In fact the rule of law has been adopted by the ‘international community’ as one of its principles tools of intervention in states tying it to principles such as good governance and accountability (see e.g.: Mattei and Nader 2008). It is also an idea of law which some on the ‘left’, along it seems, with some anti-doping academics have fallen back upon as being the only available bulwark against perceived authoritarian or arbitrary rule (e.g: Thompson (1975) and the works of Scheuerman cited below). For example, one of the forceful criticisms made against current anti-doping law and practice is that the separation of powers, particularly the separation between judicial and executive powers, is not fully respected in the system established by the WADC. It is the premise that, to a large part, underlies Møller’s analysis of the scapegoating of Michael Rasmussen, and is made explicit in the quoting of the United States journalist Hiltzik:

“What has evolved to protect competitive purity since then [the establishment of WADA] is a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals and challenges” (Møller 2011:281).

At the core of the Diceyian definition of the rule of law are three kindred concepts, each of which had a particular consequence. The first of these, already noted above, was the idea of the absolute supremacy of rule of law. The rule of law thus consists of a regular and consistent application of power and is opposed to arbitrary decision-making, that is any wide and discretion uncontrolled discretion. Secondly, the rule of law required that all persons were considered equal before the law, and that this equality before the law required that government, administrators and ordinary persons were all subject to the same law. It is the corollary or analogue of Weber’s opposition to the particularist modes of closed, private and consensual forms of law. Its particular consequence was that all persons are bound to follow the same law. This is the basis of the criticisms of the WADC as not providing a level playing field of the law (Møller 2011). The third concept was that the particular constitution of any state is not the ultimate source of law. This is probably the most overlooked and controversial aspect of Dicey’s concept of the rule of law, as it implicitly challenges the received wisdom of the supremacy and sovereignty of parliament. At is most basic the consequence of this statement is that there is something more that stands behind positive law itself. It opens up the debate around things such as natural law and equity that we might say have raged since the time of Antigone (Sophocles 1984) and continues today in the work of Agamben (2005 & 2011). Any enquiry as to what might stand behind the law – some just-i-fiable good or just-ness; and how it is relevant to the current topic is an important task – but it is not the purpose of this particular paper; it is something that must come as a consequence of an understanding of whereabouts we are now.

Dicey’s Critique of Administrative Law

“The words “administrative law,” which are its most natural rendering, are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation” (Dicey 1920:326).
Dicey went to great length to distinguish his conception of the rule of law from French administrative law (droit administratif), which, he saw not only as being an arbitrary form, but also as a form which breached the doctrine of the separation of powers (for a contemporary survey of this system see Latour 2010). Administrative law, whether in the Continental model, or in the way it has developed in the Anglo system since Dicey, is by its very nature concerned with executive power. It is a form of law that countenances and allows executive discretion, whilst at the same time, seeking, at least procedurally, to regulate it. Forms of administrative law have also developed in a way so that they now apply to a variety of particular and specialised areas – for example immigration, broadcasting, mining, workplaces, and of course, sport. On their face, and especially in cases where supervision by the ordinary courts in lacking, these forms of administrative law appear inconsistent with the form of law as described by both Weber and Dicey.

The WADC system, which seeks to establish a transnational autonomous form of law, not subject to the supervisory powers of national courts is a case in point. The law of the WADC does not emanate, nor derive its force from the command of a single national sovereign, nor does it apply equally to all those who find themselves within that definable people and territory. The WADC establishes a particularist and autonomous global system of law, in which its text clearly states, that it is not to be read in the light of, or bound by the conditions that governed the law of Modern Rational Capitalism:
24.3 The Code shall be interpreted as an independent and autonomous text and not by reference to the existing law or statutes of the Signatories or governments (WADA 2009).

The anti-doping system established by the WADC is one of the preeminent examples of the new global form of administrative law that is being constructed in the process of globalisation. WADA has been described as being “a body that is emblematic of the emergence of the new forms of hybrid private-public governance mechanism in the global sphere” (Casini 2010) The WADC is of course a particular form of law that applies only to athletes, and prohibits for them only things that are not generally prohibited in the wider society, and moreover, limits their recourse to a non-judicial or quasi-judicial body, controlled and established by the global executive of sport. It is not intended to be subject to the supervision of the national sovereign’s courts.

One demand resulting from the WADC’s global reach is the requirement for some flexibility in its application by its various state and sporting princes. Flexibility and discretion are necessary, and allowed, in order to maintain the system’s single logic (which I suggest may be something other than the integrity of the spirit of sport – whatever that might mean) and to achieve its local effectiveness. Thus, rather than by way of the general application of laws to all, the WADC operates and achieves local effectiveness by way of the flexible management of the differences it encounters. Harmonisation of laws should not be confused with all being equal before the same law. The opening paragraphs of the WADC clearly supports this proposition, stating that it is:

“specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented” (WADA 2009).

The increasing use of discretionary powers and the specialisation of law for different classes and sectors of society is, on this view, a sign of what Weber described as the deformalisation of law. In his consideration of droit administratif Dicey observed the:

“very contrast between administrative law as it exists in France … and the notions of equality before the law which are firmly established in modern England” (Dicey 1920:327-8).

This contrast stemmed in part from the privileged position this form of law possessed as a result of it being situated and administered within the executive arm of government and not being subject to the Anglo conception of the constraints inherent in the concept of the separation of powers.

Dicey’s concern, in part, was the manner in which the French system “juridialised” prerogatives of the Crown that had existed under the ancien regime and placed servants of the government outside of the purview of the ordinary courts of law. As such he argued that the French system was in stark contrast to the English system and was not in accord with:

“the full meaning of that absolute supremacy of the ordinary law of the land … which we have found to be a salient feature of English institutions.” (Dicey 1920:325)

Searching for an adequate definition he turned to the works of Alexis de Tocqueville, and his contemporaries, French jurists such as Aucoc, who defined droit administrative as:

“(i) the constitution and the relations of those organs of society which are charged with the care of those social interests (interets collectifs) which are the object of public administration, by which term is meant the different representatives of society among which the State is the most important, and (2) the relation of the administrative authorities toward the citizens of the State.” (Dicey 1920:328-9) (Emphasis added)

It is important to note the function of administrative law as being the constitution of organs of society charged with the care of social interests and public administration and the relation of these organs towards and with the citizenry. The anti-doping apparatus is in fact an emerging form of a transnational, hybridized and globalized form of administrative law, neither fully public, nor fully private, which has been brought into being, not solely by state actors but by an alliance or apparatus of non state and state actors. Transnational law is not international law in the sense of Public International Law, which was a system that was based upon the notion of the inviolability of sovereign states and their free agreement. Furthermore, this emerging or new form of law, rather than a pure sovereign method of rule or right, is a form of trans-national governance, achieved both through means of law and of not law (Agamben 1998 & 2005) of an “exceptional character” (Dicey 1920:327) – conceived of by way of concepts such as governance, economy, the police, the exception and biopower; aimed at the ‘care’ of social interests.

The French system was, according to Dicey, based upon a fundamental misconception, which he attributes to Montesquieu, as to the meaning of the separation of powers. In the Anglo system, the separation of powers seeks to maintain the independence of each branch of government by effectively placing the parliament and executive under the supervision of the courts, in so far as their actions must be consistent with both constitutional and legal principles. On this view the separation of powers is inextricably woven into the concept of the independence of the judiciary – a condition that underpins the legitimacy of the whole sovereign system. But it:

“means, in the mouth of a French statesman or lawyer, something different from what we mean in England by the “independence of the judges,” or the like expressions. … it means … the government and its officials ought … to be independent of and to a great extent free from the jurisdiction of the ordinary Courts” (Dicey 1920:332-4).

Thus, within the realms of administrative law, firstly, not all were equal before the same law, a special form of law or privileged attached to legal persons because of their status, and, secondly, and as a corollary of that, unlike the Anglo position where the separation of powers placed the law courts in a supervisory position, whereby they controlled and kept within their legal powers both the executive and the parliament (as the case may be), on the Continent, the separation of powers was construed (or misconstrued) as meaning the courts had no such power to interfere with the workings of the other branches of government. Unlike the Continental misconception, the independence of the judiciary, rather than the independence, or the immunity, of the other branches of Government from interference from the judiciary, is fundamental to contemporary conceptions and rhetoric surrounding the rule of law.

The Continental system stemmed from the view that “judges must never be allowed to hamper the action of the government” (Dicey 1920: 335). To allow courts to judge the executive impinged upon that particular view of the separation of powers (Dicey 1920:336-337). Tocqueville’s assessment of the situation carried with it as much (or even more) trepidation as Dicey’s assessment, Tocqueville wrote of judicial power being expelled from the sphere of government:

“into which the ancient regime had most unhappily allowed its introduction, but at the very same time, as any one can see, the authority of the government has gradually been introducing itself into the natural sphere of the Courts, and there we have suffered it to remain as if the confusion of powers was not as dangerous if it came from the side of government as if it came from the side of the Courts, or even worse. For the intervention of the Courts of Justice into the sphere of government only impedes the management of business, whilst the intervention of government in the administration of justice depraves citizens and turns them at the same time into revolutionists and slaves” (Tocqueville, Democracy in America, 1835:174-175 cited in Dicey 1920:353-4).

It is important for us to consider the ramifications of this position in the contemporary context. According to this conception of the separation of powers a global sovereign or executive requires, and is justified in having, complete and unfettered discretion, a free reign in governance, a discretion which is not to be brought into question by existing national courts, or for that matter, international of transnational tribunals in construction, or at least other than those anointed by that sovereign or executive. As in Imperial France “[j]udicial functions must remain separate from administrative functions” (Dicey 1920:337) and thus judicial functions must not interfere with government or governance in the construction of Empire.

Dicey was careful to note the changes in the nature of droit administrative throughout the nineteenth century (Dicey 1920:327) which was “the outcome of more than a hundred years of revolutionary and constitutional conflict” (Dicey 1920:330), he was of the view that it established:

“a condition of things fundamentally inconsistent with what Englishmen regard as the due supremacy of the ordinary law of the land” (Dicey 1920:328).

Droit administratif straddled the ancient regime, the revolution, the Thermidor and its successors (Dicey 1920: 330-332). These observations of Dicey’s are relevant in considering the form of global law we face in the contemporary (notably Imperial and post Cold War) context. In constructing the new regime, the Imperial or Bonapartist model, sought to obtain the “least interference by the law Courts with the free action of the government”. Although Dicey later accepts that over time droit administratif took on a form which possessed some similarities to English law, that it became more law like, more judicial and less a direct arm of Executive power (Dicey 1920:360ff) the important point is that it is this very transformation that belies the observation of Hardt and Negri concerning the contemporary context:

“Eventually a new judicial function must be formed that is adequate to the constitution of Empire. Courts will have to be transformed gradually from an organ that simply decrees sentences against the vanquished to a judicial body or system of bodies that dictate and sanction the interrelation among the moral order, the exercise of police action, and the mechanism legitimating imperial sovereignty” (Hardt and Negri 2000:38).

Law’s Deformalisation

Weber recognised that his formalistic description of law, as a rational and calculable system, was already giving way to a new form of law, to the deformalisation of law. The germs of this new form are what today is arguably becoming the norm, this is in part the lesson of Agamben (Agamben 1998 & 2005). One clear aspect of deformalisation has been the increasing use of discretion and the growth of administrative and particularist forms of law. What Weber recognised was that Modern Rational Capitalism’s formal and calculable law was undergoing a process of entropy – deformalisation of law was the thing of the future. Weber’s continental vantage point, possibly, allowed him to perceive of this deformalisation before Dicey, who of course was bound by the self-acknowledged island of “scrupulous legalism” and “pedantic absurdity” of English lawyers (Dicey 1920:358).

Weber recognised the fact of the deformalisation of law was related to the movement whereby monopoly (and later finance capitalism) rather than the mercantile or pure market capitalism took hold. The late nineteenth century and early twentieth century saw the emergence of monopoly capitalism and later the growth of the welfare and social democratic state. In this context law became increasingly made and addressed to particular social groups. As the state became increasingly complex and compartmentalised, so too did the law and this growth itself also brought about a growth in forms of administrative law: quasi-legislative law such as delegated legislation, quasi-law such as policy and rule making, and the increasing grant and use of discretionary powers. Each of these measures led to law making being further removed from the daily life of parliament and placed it in the hands of the executive and its bureaucracy. Parliament, it might be said, has been reduced to the creation of framework agreements under which the executive and bureaucracy wielded real political and legal power.
At the same time the increasing complexity of society meant that law started to merge with other disciplines such as science, technology and economics, and those disciplines themselves began to influence what had been previously purely legal reasoning. Thus, towards the end of his career Weber came to qualify his rationalisation of law thesis. In Economy and Society (Weber 1978), in the light of a number of developments he observed in the late nineteenth century such as the development of a division of labour and vocational interest groups with their own lawyers – labour law, corporations lawyers, etc; all contributing to an apparent regression back to the feudalisation of law. Different specific privi-leges applying to different status groups accompanied the development of a new privileged class of bureaucrats with the technical ‘know-how’ and who thus became indispensable to the administrative process.

William E. Scheuerman has since questioned the traditional belief in an elective affinity between economic liberalism and the rule of law and argues that today it obscures the manner in which the process of economic globalisation threatens core features of the rule of law. He argues that because of its high-speed nature and its tendency towards deterritorialisation, contemporary capitalism is vastly different to its predecessors and that as such the fundamental relationship between capitalism and the rule of law has itself been transformed. Because global capitalism consistently and constantly revolutionises the temporal horizons of economic action its reliance on a robust model of the rule of law diminishes.  Social acceleration and deterritorialisation have diminished the dependence upon traditional rule of law virtues and as such traditional modes of liberal law decreasingly figure in the operations of the global economy. Soft law, and international arbitration, private ordering and increasing executive discretion have far more prevalent forms of governance than traditional forms of law (Scheuerman 2009:145). Thus, rather than the machine like production of the formal and calculable law of Weber’s modernity, which matched its machine like form of production, what is required today, rather, than calculability and equality before the law, is increasingly flexibility (Scheuerman 2009:149 & 153). Noting Schmitt’s remarks on the process of the motorisation of law, whereby legislatures calibrated their activities in accordance with high-speed temporality of society, Scheuerman writes:

“law making procedures become ever faster and more circumscribed, the path towards the achievement of legal regulation shorter, and the share of jurisprudence smaller” (2009:105).

This requirement for speed manifests itself in an avoidance of the tardy processes of national law courts and a preference for arbitration. Private agreement that creates a particular, autonomous form of law, is the basis of the system’s authority, not independent courts. Arbitration takes place in the context of disciplinary matters arising from contract and in a situation in which the accused has none of the substantive rights and liberties of a citizen under the rule of law, nor even the ability to defend or even properly mitigate an offence. Strict liability requires that the only recourse available is of a procedural type. Furthermore, rather than the application of an autonomous and strict legal principle, decisions are made and arbitration is carried out by way of recourse to technical, economic and scientific standards, as the guiding principle of governance. Rather than legal supervision by independent, national courts, the WADC calls upon sovereign states to privilege private arbitration:

“22.3 Each government will respect arbitration as the preferred means of resolving doping-related disputes” (WADA 2009).

We no longer live in Weber’s world of Modern Rational Capitalism, with its particular form of capital, a merchant-industrial-market capital, but, a global system of monopoly capital, with financial, rather than fixed capital, as its dominant form. This is a system in which the sovereigns of Modern Rational Capitalism, that is, sovereign nation states, continue to reign but no longer govern. The fundamentals of both Weber and Dicey’s system have changed – law is no longer solely the product of a single sovereign source that governs a definable people and territory under their control. The sovereign’s courts, in a growing instance of situations, are no longer the courts of final recourse. Governance is carried out, more and more, at the behest of networks of international organisations and corporations, on the basis of technical, economic and scientific standards, leaving the remnants of the state to perform an implementation and management role in respect of global policy, and of primarily ensuring its local effectiveness.

Thus, what I argue is that the fundamental change in the nature of global organisation and the deformalisation of sovereignty and its form of law, has and will continue to have, profound ramifications for what until now we have called law and legal principle. What we are witnessing with the construction of the global system could be described as, by way of analogy, an increasing return to pre-Modern Rational Capitalism systems of particularist, specialist and compartmentalised law, along with a subsequent and increasing use of arbitration, rather than judicial processes – that is a return to dispute resolution by way of private agreement, rather than recourse to the sovereign’s courts. Related to this is the recourse to technical, economic and scientific standards, as the guiding principle of governance, rather than Modern Rational Capitalism’s method, which involved the application of autonomous and strict legal principle in order to resolve disputes.

Law is said to perform a number of related societal functions, including social ordering and control, social change, social education and possible, social justice. But the lesson of Foucault, and for that matter, more recently Agambem is that more diffuse mechanisms and apparatuses now perform these functions. Governance tends to become a question of biopower (the administration and management of bodies) within a global society of the spectacle, rather than a question of mere sovereign command. In this system of global governance, rather than an international form of law agreed upon by equal sovereigns, things and mechanisms that are not themselves law (law) appear to have the force of law. The question becomes not, is it law? or does it operate according to legal principle or for that matter the rule of law? – but – following, Deleuze/Guattari; does it work like law? That is, does it have an e/affect in the way in which we have conceived of the role and function of law previously?

Principles of Imperial Administration

What Møller (2004) has sensed in his claim that anti-doping spells the end of modernity is in fact a sign of a much wider global transformation. It is not clear whether Møller or others involved in the field of anti-doping academia have really grasped the significance and relevance of their own insights, and these wider transformations, or their importance for the manner in which law and governance is increasingly undertaken. In this context Hardt and Negri’s work on Empire is instructive as it allows us both to begin to come to terms with these changes being brought about in the field of sports’ anti-doping and also to position these changes within a wider, global process.

One of the problems with the pure ‘sporting rule’ approach to anti-doping is that it tends to fix and romanticise not only identities but also a notion of the essence of sport. Hardt and Negri have suggested that we not focus upon the things and places that may have existed within an earlier period, but rather the production of new localities – that is the social machines that create and recreate identities and differences that are understood as local (Hardt & Negri 2000:45). In this context, local includes sport, sporting identity and, of course, the place of drugs within it. Such a focus upon the local of production requires us not to isolate sport, or its rules, but to place them within wider global processes. Importantly, for the present discussion, the ‘sporting law’ approach seems to wish away the fact that anti-doping laws are no longer mere rules made by autonomous sporting bodies. Sport is no longer autonomous, its governance and that of anti-doping are a global and hybrid affair. The WADC is a hybrid public-private/sporting-non-sporting/state-non-state/national-international-transnational apparatus of governance. Both sporting and national sovereigns have devolved their former autonomy in the production and administration of anti-doping law and it has been distributed among a variety of actors. Transnational law tends to possess a more liminal identity that subsumes a horizontal globality of legal validity into the vertical of an equally global (extended) sovereign source (Negri 2001:5). Just as Foucault recognised that the:

“construction of modernity involved the development of new forms of social or cultural regulation that operated at a state level” (Bowrey 2005:141),

these emerging forms of transnational regulation constitute a new material substrata that lie beyond the sovereign notion of the State (Hardt and Negri 2003:83). Therefore, an analysis based solely upon a formal conception of law current in the nineteenth century, may be useful from a historical or genealogical perspective, but is lacking in its ability to fully understand the forces at play. It may provide a basis for a negative critique, but cannot provide a basis from which to build a positive alternative.

An aspect of this new system at a macro level, which has increasingly stood out since the end of the Cold War, is the tendency towards intervention. Intervention at the macro level can be seen by the growth and tacit acceptance of intervention into what was prior previously the inviolable sovereign integrity of the state – peacekeeping, regime change and policing operations are the most obvious examples (Chesterman 2001). But this intervention also appears to operate on a micro-political level, and just as the state has become violable, and subject to the conditions of global policing and the demands of just wars, in the world of anti-doping, the inviolability of personal sovereignty, autonomy and privacy, have also been breached. Thus the anti-doping apparatus not only operates in a situation where the old boundaries of the national state have been compromised, and where there is a general movement to a supranational form of sovereignty, but it mirrors this movement such that the athlete’s body and life (or for that matter any body or life) has become violable provided a ‘just’ cause can be found. What is at play in anti-doping law and policy is itself a symptom of the coming of what Hardt and Negri have described as Empire:

“The decline in sovereignty of nation states, however, does not mean that sovereignty as such has declined. Throughout the contemporary transformations, political controls, state functions, and regulatory mechanisms have continued to rule the realm of economic and social production and exchange. Our basic hypothesis is that sovereignty has taken a new form, composed of a series of national and supranational organisms united under a single logic of rule. This new global form of sovereignty is what we call Empire.

… Empire establishes no territorial center of power and does not rely on fixed boundaries or barriers. It is a decentered and deterritorializing apparatus of rule that progressively incorporates the entire global realm within its open, expanding frontiers. Empire manages hybrid identities, flexible hierarchies, and plural exchanges through modulating networks of command” (Hardt and Negri 2000:xii-xiii).

This emerging form of a new global order is a “network power” which brings:

“together an oligarchy of diverse political bodies, including international institutions, the dominant nation-states, multinational corporations, continental and regional alliances, and so forth, which collaborate to create an open, constituent process” (Hardt and Negri 2004:xxii – xiv).

Rather than the formal rule of law, this open process is managed by practices and structures of global governance that provide an extraordinary plural and flexible process (Hardt and Negri 2009:226). Central to this is:

“an idea of the key constitutionalization and the governmentilization of ‘dispotifs’ of the production of law that takes command away from sovereignty, makes it adequate to the market, and distributes it among variety of actors” (Hardt and Negri, Commonwealth, 2009:226-227).

Empire is the paradigmatic form of biopower where state or national organs become mere local conduits of power, administration and management, of this global single logic. As Empire seeks to progressively incorporate the entire global realm and all forms of life within its open and expanding frontiers, transnational administrative law has the potential to completely over-determine domestic law.

Empire manages a territory and a population, but, it also seeks to create worlds (in the form of for example lifestyles) and thus the world it inhabits. Production in many respects has become the production of lifestyles. The object of its rule is social life in its entirety and as Empire seeks to bring all territory and all forms of life within its realm, its focus signals a shift within the mode of production from an industrial, to what has been described as, an immaterial form of production (Hardt & Negri 2000:29). Just as sovereignty has escaped the bounds of the nation state, production too has exceeded the walls of the factory and taken upon the form of a global factory without walls. The industrial factory has been reduced and/or relocated and priority is given to communicative, cooperative and affective labour. Kreft (2009) has identified professional sport as being located firmly within this new global form of labour – communicative, cooperative and affective; which in itself creates its own world, but at the same time, is captured by the economic logics of the market and by the process of legitimising (the multiplicity of) sovereign power. Sport legitimises both the sovereignty of the competition of the formally free level playing field of the market and the state and other institutions that govern. The anti-doping apparatus is located firmly within this context of governing life within Empire.

Imperial administration is increasingly instrumental. What is important is the adequacy of actions to specific ends – functionality thus becomes a touchstone of legitimacy, and thus legality. Discretion and the flexible management of difference are paramount as different and multiple instrumental logics are applied to problems as they arise. Rather than unity and equality of law and action what takes precedence is instrumental multi-functionality. As a result administration becomes procedural and autocentric, procedural administration allows functionality – each case is treated differently and is localised and contingent. Administrative actions thus become heterogeneous, they are event and crisis driven (Hardt & Negri 2000).

Empire always comes in the name of justice and in that name treats each differently. At the same time, and necessarily Empire’s conception of justice is its unifying matrix. Empire must appear to be globally just, but, must also be locally effective. The flexible management of difference provides the framework for local effectiveness and the mechanism for consent to a global, but, single logic of rule. In order to take control and dominate a completely fluid situation with no centre, it is necessary for an intervening authority to have the capacity to define, every time in an exceptional way, the demands of the intervention, and the capacity to set in motion the forces and instruments that can be variously applied to the diversity of the arrangements in crisis. In this way the legitimacy of the order supports the exercise of a global policing power (Hardt & Negri 2000).

Scheuerman (2004, 2009) and Agamben (2005) (albeit from different perspectives) are not alone in observing that throughout the 20th century the resort to waging war against crisis became more and more commonplace and that it justified generous grants of discretionary authority to the executive. Enemies and natural disasters were accompanied by severe economic crises as something that threatened political stability and hence justified war being waged. Within the framework of Empire the war against doping can be conceptualised as a Just War in which exceptional measures are required. In Empire, war is reduced to a police action, and the power to police has an ‘ethical’ function. In just wars, the enemy is both banalised and thus subject to routine policing, and absolutised as an absolute threat to the ethical order in construction (Hardt & Negri 2000).

The Police

“[T]he rule of law continues to play a central role in the context of the contemporary passage: right remains effective and (precisely by means of the state of exception and police techniques) becomes procedure” (Hardt and Negri 2000:26-27).

The activity of global policy demonstrates the real effectiveness of the imperial order. The two initial coordinates of the authority of Empire are the juridical power to rule over the exception and the supranational capacity to police. In this context whilst right remains effective, by way of the operation of the exception and the police, there is a continuing role for the rule of law, not as a substantive guarantor of rights, but as merely a guarantor of procedure. Thus the rights given to athletes in the WADC are only of a procedural nature, and in most cases even departures from these procedures are not sufficient to invalidate the process.

These elements of imperial rule – police, exception and right conceived of as procedure; provide us with tools which are better equipped for the task of understanding the anti-doping apparatus. Police power better illustrates the function of discretion, than does the rule of law. It also provides a focussed lens through which we can begin to understand the concept of exception. Here the work of Neocleous, on the police, is instructive for it allows us to begin to conceive of the genealogy of the practice of the global administrative apparatus.

Neocleous points to the roots of the word “police” in French-Burgundian and how it spread and was adopted throughout Europe in the fifteenth century. The meaning, or function, he gives to the police has interesting parallels for us with Foucauldian concepts of biopower and discipline and with Dicey’s definition of droit administratif referred to above. The meaning of police has remained constant:

“denoting the legislative and administrative regulation of the internal life of a community to promote general welfare and the conditions of good order … the regimenting of social life … the management and the direction of the population by the state” Neocleous (2000:1).

Although the meaning is constant the reach of the police is overtime capable of encompassing all of society, and as such there is no human problem that cannot become the proper business of the police (Neocleous 2000:93-4). In the end the police function is that of the administration and management of life (Deleuze 2000:92, Foucault 1998:89-90).

Neocleous questions what he refers to as the parallel myth between law and order in that “policing is considered to be related to order via law: the police maintain order by enforcing the law” (2000:94). Contrary to this position Neocleous argues cogently:

“the way in which the police institution is consistently collapsed into ‘law’ is fundamentally misleading. If we are to think of policing as a form of political [rather than legal] administration … We need to consider at greater length the administrative nature of police power … as historically policing was an exercise of administrative power as much as anything else … the police function should be seen through the lens of administration as much as the law  … the lens in question should be the law-and-administration continuum. This is because it is through the continuum of law and administration that the state administers civil society politically as part of the fabrication of social order” (2000:94-95).

Neocleous is concerned with the concept of the police within the context of the state, but his argument is apposite to a consideration of the role of the police in the global context of Empire. Furthermore, his consideration of a  “law-and-administration continuum” rather than a simple binary of law and not law is capable of being read consistently with the thought of Foucault, Agamben, and Deleuze and Guattari, where law and governance form two poles between which practice fluctuates.

Neocleous distinguishes the rule of law model, from that of policing, and notes that in the:

“crime control model in which crime prevention is the most important police function and to which other issues, such as individual rights, can be regarded of secondary importance” (Neocleous 2000:95).

Through an analysis of the power of arrest in England and its relationship to a subsequent prosecution, Neocleous shows how the administrative function of the police gradually colonized the practice of prosecution process without any legal authority. Arrest which was originally a mechanism to bring a person before magistrate in order to determine whether a prosecution could proceed – a practice that supported the idea that the police act purely according to law; gradually became a practice whereby the police themselves took control of the prosecution process, such that by the mid-nineteenth century the police not only apprehended an offender, but also prepared the case against him (Neocleous 2000:96). The practice, and importantly the tension, between the police and legal authority was not a nineteenth century curiosity, and when the practice was found to be illegal in first half of the twentieth century the tension was resolved on the side of the police by their assumption of powers that the law denied them, merely because they felt them necessary and that there was a “moral justification for getting around the rules”(Neocleous 2000:96-98).

In pointing out that the law is very much a product of the police Neocleous refers to laws (for example Vagrancy Acts as early as 1824) which introduced stop and search powers, reversed the traditional presumption of innocence and introduced concepts such as strict liability, in which the suspect had to prove his or her own innocence (Neocleous 2000:105). All of these now have familiar descendants in the global anti-doping apparatus, and are, of course, readily criticized by anti-doping critics and academics as being contrary to the rule of law. But, what is important is that the content of legal rules, and the conception of fundamental legal principles, which formed a part of the rule of law, changed because of police practice, and not some higher abstract ideal of the rule of law. These practice-based changes are as well generally accompanied by calls to some overriding moral justification – again exception, functionality and spectacle (Hardie 2011).

Discretion is the key feature of the practice of police power – Lord Scarman cited by Neocleous: “the exercise of discretion lies at the heart of the policing function” (Neocleous 2000:99). Discretion is such a central concept to policing:

“that one cannot understand the police function without understanding the place of discretion in the police role. First, because the discretion of law enforcement agencies is near absolute. Second, because … individual police officers have the legal right and duty to enforce the law as they see fit, including whether to arrest, interrogate and prosecute … And third because identifying some of the issues surrounding discretion reveals some of the key features of police power” (Neocleous 2000:99).

Absolute discretion is, of course, perceived to be at odds with the rule of law’s notion of equal treatment before the law, of a level, legal playing field. Discretion as a form of selective law-enforcement and order maintenance is inherently discriminatory, its application is group specific, and it is intended to be so. Discretion shares:

“a common root referring to the act of separating, distinguishing and judging. By definition the exercise of police discretion defines who is a deviant in any social context and how that deviant is controlled. Some laws may be enforced more strictly against some groups than others, while at other times certain techniques of maintaining order will be utilized for different groups” (Neocleous 2000:99-100).

Furthermore, the act of taking control of the body of a suspect, and its violation in order to demand bodily samples, in whatever form, is the quintessential act of police discretion. It is not by reference to medical ethics or concepts such as consent to treatment that we should try to understand anti-doping instruments, such as the Biological Passport, but by reference to the nature of police power and its role in the bio political governance of populations.

“The citizen who is deemed to be suspect stands stripped of his canopy of rights, and the police can lawfully take control over and work on his body and mind …

The fact that discretion is so integral to the exercise of police powers tells us something important about the police and its relation to state power, for discretion is a key feature of state power generally. … While liberal jurisprudence tends to treat discretion entirely in terms of its place in judicial decisions, police discretion can in fact be understood only by considering policing less as a form of juridical power and more as a form of political administration.” (Neocleous 2000:101).

The exercise of discretion, as a type of administrative or executive power, is entirely consistent with the growth of new administrative forms that have developed since Weber first grasped the signs of law’s deformalisation and its production of quasi-judicial forms. It also allows us to begin to understand the importance of the Schmittian phrase “Sovereign is he who decides on the exception” – discretion as an executive, rather than judicial function, points squarely to the power of the sovereign to decide the law, or more precisely, the exception to the law. Agamben’s discussions of Schmitt begin in fact with a discussion of the development of new forms of administrative law in the early twentieth century (Agamben 2005:7, 11ff).  Furthermore, Agamben’s concept of the state of exception refers to more than an exercise of an administrative power; it also encompasses a situation in which the old boundaries of disciplines, institutions or powers tend to blur into a zone of indistinction or critical opalescence (see Hardie 2011). This place that straddles borders, is also where Neocleous locates the police. The difficulty of where to place the police in the traditional rule of law institutional structure arises because rather than:

“sitting uncomfortably in both judicial and executive spheres, the police … straddles the boundary between these spheres naturally, operating most comfortably in the ‘open border’ between the spheres of state power and giving the police an independence which no other institution of the state appears to have” (Neocleous 2000:106) (Emphasis added).

The concept of the police operating in a global zone of indistinction is a much more adequate manner in which to conceive of the practice of anti-doping law than by way of reference to the rule of law.

“Discretion allows the exercise of power with law standing at arm’s length, deferring to the power of administration but using its own symbolic and political significance to confirm the same power” (Neocleous 2000:103).

In the case of anti-doping law we are no longer in the midst of an exercise of state power but the constitution of a form of global hybrid state/non-state administrative power. To continue to critique it as not conforming with the rule of law, is, to sadly miss the point – in anti-doping we are dealing with the global administration and management of a form of life – with its policing.

Back to the Future … The Global Anti-Doping Apparatus

In a society of biopolitical control – the administration of bodies using techniques such as continual monitoring and surveillance, the internalisation of control and an instrumental or functional rationality; that is based upon an accounting of bodies replaces the old law’s technique of deciding disputes after the event of their occurrence. Bauman’s work on the Holocaust assists us in understanding the role of the administrative policing in this post-Modern Rational Capitalism world:

“Bureaucracy started from what bureaucracies start with: the formulation of a precise definition of the object, the registering those who fitted the definition and opening a file for each. It proceeded to segregate those in the files from the rest of the population, to which the received brief did not apply. Finally, it moved to evicting the segregated category from the land of the Aryans which was to be cleansed ….” (Bauman 1989:105).

Applying Bauman’s description of bureaucracy to the anti-doping apparatus we can start to see how this mode of administration is replicated in contemporary forms of policing and biopower. In the case of the anti-doping we have all the elements described by Bauman, albeit distributed throughout a network on a global scale:

1.    A precise definition of the object of the ideology (to cleanse sport of the doper, to create a level playing field of sport);

2.    The identification and location of the object (through the Whereabouts system and blood and urine testing);

3.    The opening of a file for each object (the Athlete’s Biological Passport);

4.    The segregating those in the files (the sorting of results by the Athlete’s Biological Passport Software and then by the Biological Passport Expert Panels); and

5.    The evicting of the segregated categories (by way of anti-doping rule violation cases and in some cases bans imposed and/or the spectacle and moral/media/public condemnation).

In successfully carrying out these five steps, the three manifestations (and perpetrators) of instrumental rationality are also present and all work in tandem:

-    The machine (The ADAMS software, blood and urine sampling and analysis, Athlete’s Biological Passport Software, and the Passport itself);

-    The professional (the information technologists, statisticians, blood and physiological scientists, anti-doping lawyers); and

-    The bureaucracy (the National Governments, national and international sporting organisations, national anti-doping agencies, WADA and the Court of Arbitration of Sport).

What is absent is the law in the form conceived of by Weber or Dicey. This is a very different machine to that of the boundary retained, backward looking, dispute resolving system of the law of Modern Rational Capitalism. In the world of biopolitical governance, just like in Kafka or Lewis Carroll, everyone is potentially guilty, and the system demands, that, rather than waiting for an offence to occur and become visible, anti-doping policing actively searches out abnormal bodies, bodies not worthy of remaining within the system, bodies that need to be segregated, and deals with them upon that basis.

The global (monopoly) economy and the society of the spectacle (two sides of the same coin) both require disputes to be settled as quickly as possibly, and without the tardy delays characteristic of the justice system. In this new world order the public statements of many concerning both the Operacíon Puerto and the Contador cases exemplify that the need for speed (to ensure the ‘integrity of sport/business’) over-determines the need to comply with older legal forms. Thus, former Spanish President Rodriguez Zapatero was both, right, and wrong, when he said that here is no legal reason to convict Contador.

It is within this perspective that we must situate the war on drugs or the war on doping – not as isolated phenomena that are based on some prudish view of morality. In this context, suspected, apparent, or obvious, drug use in sport threatens the very moral stability of the economic system – the myth of equal opportunity for all to ‘make it’ as an entrepreneur on the level playing field of the global market. This is Bruyneel’s world of “We Might as Well Win” or Cadel’s “Experience, Motivation, Capability” (or “Expedience, Manipulation, Culpability”, as the case may be).

Taken individually the changes I have sought to describe may be regarded as being only slight or subtle changes, a little tinkering only to one part or other of the system in order to bring it up to date with contemporary needs, whilst other parts remain intact. However, in a system of low entropy, such as Modern Rational Capitalism’s formalistic conception of law, the removal or change in one aspect tends to change the nature and functioning of the whole system. It is these changes that we need to come to grips with if we are adequately going to understand the challenge that the anti-doping apparatus poses for us.

References

•    Agamben, G. (1998) Homo Sacer, Sovereign Power and Bare Life, Stanford: Stanford University Press.

•    Agamben, G. (1999) Remnants of Auschwitz, The Witness and the Archive, Zone Books.

•    Agamben, G. (2005) The Time That Remains, A Commentary on the Letter to the Romans, Stanford: Stanford University Press.

•    Agamben, G. (2005) The State of Exception, Chicago: The University of Chicago Press.

Agamben, G. (2011) The Kingdom and the Glory, For a Theological Genealogy of Economy and Government, Stanford: Stanford University Press.

•    Aristotle, (1981) Ethics, Penguin Classics, Harmondsworth, Middlesex, England.

•    Bowrey, K., (2005) Law and Internet Cultures, Cambridge University Press.

•    Browning, G., (2011) Global Theory from Kant to Hardt and Negri, Palgrave Macmillan, Basingstoke, UK.

•    Casini, L., (2010) The Making Of A Lex Sportiva – The Court of Arbitration for Sport “The Provider”, IILJ Working Paper 2010/5 Global Administrative Law Series, New York University School of Law.

•    Chesterman, S., (2001) Just War or Just Peace? Humanitarian Intervention and International Law, Oxford University Press, 2001.

•    Deleuze, G., (1995) Difference and Repetition, Columbia University Press.

•    Deleuze, G., (2000) Foucault, University Of Minnesota Press, Minneapolis.

•    Deleuze, G.,  & Guattari, F., (1986) Kafka: Toward a Minor Literature, University Of Minnesota Press, Minneapolis.

•    Hardie, M., It’s not about the blood: Operacíon Puerto and the end of modernity, In McNamee, M. And Møller, V (eds) (2011) Doping and Anti-Doping Policy in Sport: Ethical and Legal Perspectives, Abingdon: Routledge.

•    Hardt, M., and Negri, A., (2000) Empire, Cambridge Massachusetts: Harvard University Press.

•    Hardt, M., and Negri, A., (2003) Labor of Dionysus, A Critique of the State-Form, Theory Out of Bounds, Volume 4, University of Minnesota Press, Minneapolis.

•    Hardt, M., and Negri, A., (2004) Multitude, War and Democracy in the Age of Empire, The Penguin Press, New York.

•    Hardt, M., and Negri, A., (2009) Commonwealth, Cambridge Massachusetts: Harvard University Press.

•    Harrington, J., (1656) The Commonwealth of Oceana.

•    High Court of Australia, (2003) Plaintiff S157/2002 and The Commonwealth of Australia, [2003] 211 CLR 476, 513.

•    Kafka, F., (1995) The Complete Stories, Schocken Books.

•    Kafka, F., 1983 The Penguin Complete Novels of Franz Kafka: The Trial, The Castle, America.

•    Kingsbury, B., Krisch, N., & Stewart, B., (2005) The Emergence Of Global Administrative Law, 68 Law & Contemp. Probs. 15.

•    Kreft, L. (2009) ‘The Elite Athlete – In a State of Exception? ‘. Sport, Ethics and Philosophy, Volume 3, Issue 1.

•    Latour, B., (2010) The Making of Law, An Ethnography of the Conseil D’État, Polity Press, Cambridge, UK.

•    Mattei U., and Nader L., (2008) Plunder, When the Rule of Law is Illegal, Blackwell Publishing, Malden, MA, USA.

•    Møller, V. (2004) ‘The Anti-Doping Campaign – Farewell to the Ideals of Modernity?’, in J. Hoberman and V. Møller (eds.) Doping and Public Policy, Odense: University Press of Southern Denmark.

•    Møller, V., (2011) The Scapegoat, About the Expulsion of Michael Rasmussen from the 2007 Tour de France and Beyond, Akaprint, Aarhus.

•    Negri, A., (2001) Postmodern Global Governance and the Critical legal project, Global Jurists Advances, Volume 1, Issue 3, 2001.

•    Neocleous, M., (2000) Fabrication of Social Order: A Critical Theory of Police Power. Pluto Press.

•    Scheuerman, W.E., (2004) Liberal Democracy and the Social Acceleration of Time, The John Hopkins University Press.
•
•    Scheuerman, W.E., (1996) The Rule of Law under Siege, Selected Essays of Franz L. Neumann and Otto Kirchheimer, University of California Press.

•    Scheuerman, W.E., (2001) Liberal Democracy and the Empire of Speed Polity, Vol. 34, No. 1 (Autumn, 2001), pp. 41-67

•    Scheuerman, W.E., & Rosa, H., (2009) High-Speed Society, Social Acceleration, Power, and modernity, The Pennsylvania State University Press.

•    Smith S., (2009) Wada as Sporting Empire, Esporte e Sociedade ano 4, n 12, Jul.2009/Out..

•    Sophocles, (1984), The Three Thebian Plays, Penguin Classics, London.

•    Thompson, E.P., (1975) Whigs and Hunters, Penguin Books.

•    World Anti-Doping Agency, (2009) World Anti-Doping Code http://www.wada-ama.org/rtecontent/document/code_v2009_en.pdf

•    Weber, M, (1978) Economy and Society, Volume 2, University of California Press.

•    Van Vaerenbergh, A., (2005) Regulatory Features and Administrative Law, Dimensions of the Olympic Movement’s Anti-doping Regime, IILJ Working Paper 2005/11, Global Administrative Law Series, New York University School of Law.

Martin Hardie, School of Law, Deakin University, Australia. (amendments to come)

Is anti-doping policy, or for that matter any other contemporary governmental policy rational?

I doubt it.

For example, the market, the playing field of the most rational or all contemporary ideologies/religions, is, like children in a haunted house at an amusement park, often spooked.

Is there a moral panic surrounding this apparently irrational policy?

Yes, moral panic is one of the principal forms of contemporary governance.

Is the answer to this irrational policy and this moral panic adequately countered by a call to return to ‘Enlightenment’ principles? To the logic and rationality of European modernity?

My answer is plainly – NO.

My argument is that this response itself is as emotional, irrational and as romantic as the panic it seeks to criticize. This response fails to grasp the contemporary context in which ‘globalisation’, generally, and anti-doping policy, particularly, is taking place. It poses the problem that Agamben raised when he suggested those who sought a return to the rational forms of the law of the sovereign state have lost the keys to the scriptures of law, and appear as such themselves lost in our contemporary age.

Our ideas or conceptions about what law is, how we define law, are influenced in many ways by a form of law that finds its fruition in the 19th century. In the Anglo system Dicey’s conception of the rule of law is pervasive. On the continent, Weber conceived of a similar form of law that was consistent with the form of Modern Rational Capitalism (MRC).

Along with the separation of powers, recognisable characteristics of these conceptions of the form of law include that such a system of law emanates, and derives its force from sovereign command. In particular, this form of law emanates from a national sovereign who has exclusive power to rule and command over a definable territory and people.

Law in such a situation acts by way of a generality – it establishes a class of circumstances, things and people to which the norm that it states applies. The hallmark of a law is a rule of conduct or a declaration as to power, right or duty in which some factual requirements are delineated that connect it to a given state of affairs.

Law in this situation applies equally to all those who find themselves within that definable people and territory and all those who are subject to this form of law have recourse to the national system of courts existing within the given territory of the sovereign. These courts decide disputes after they arise – they decide past events according to legal principle.

One of the characteristics that Weber points to is that this form of law – MRC’s law; is distinguishable to forms of law that preceded it. According to Weber MRC’s law was preceded by particularist modes of closed, private and consensual forms of law. These groups tended to be either patrimonial or magico-religious in form and operated by way of the differential application to different social groups in different localities within the boundaries of the State: Guilds, the church, local custom …

The rational bureaucratisation of the state was perceived as reducing the autonomy of these forms of law and institutions and limiting the ability of those who had participated in them to create law by means of engaging in private agreement. The transformation of these autonomous systems was driven politically by the growing strength of the State, and economically by the formally free competitive struggle of a market economy. The privileges attached to the old forms of autonomy where perceived as not being functional to either the law or the market and as such the consolidation of MRC. Calculable and formal(istic) law, calculable accounting and market relations, all of which applied equally to all. That is, citizens who themselves were formally equal before the general law and the market, with that law emanating from a single sovereign source, was the single logic underpinning the consolidation Weber’s MRC and its formal conception of law. Furthermore, patrimonial, magico-religious, local or particularist autonomy involved discretion, which was beyond perceived as beyond measure and calculation, and was hence characterized as abhorrent to the needs of MRC.

However, even Weber recognised (with a possibly unconscious nod to Hegel) that the fact of him being able to discern these characteristics meant that in fact the time of MRC was indeed already passing. That is, he recognized that his formalistic description of law, as a rational and calculable system was already giving way to a new form of law, to the deformalisation of law. The germs of this new form are what today is becoming the norm. This is in part the lesson of Agamben in that the exception now is becoming the norm.

One aspect of deformalisation was the increasing use of discretion and the growth of administrative and particularist forms of law. Dicey had already argued against administrative law, with its dissolution of strict separation of powers principles, as being contrary to the rule of law. What Weber recognised was that MRC’s formal and calculable law was undergoing a process of entropy – deformalisation of law was the thing of the future.

What we have now is no longer MRC, with its particular form of capital, a merchant-industrial-market capital, but a global system of monopoly capital, with financial rather than fixed capital as its dominant form. This is a system in which the sovereigns of MRC, that is, sovereign nation states, continue to reign but no longer govern. Governance is carried out, more and more, at the behest of networks of international organisations and corporations, on the basis of technical, economic and scientific standards, leaving the remnants of the state to perform an implementation and management role in respect of global policy, and of primarily ensuring its local effectiveness.

As Hardt and Negri have pointed out this is not a system where global law and policy is applied equally across the board – local discretion and flexibility are necessary to ensure local and hence global effectiveness. They have described this system as the flexible management of difference.

Thus, what I argue is that the fundamental change in the nature of global organisation and the deformalisation of sovereignty and its form of law, has and will continue to have, profound ramifications for what until now we have called law and legal principle. One thing we see with the construction of the global system could be described as, by way of analogy, an increasing return to pre-MRC systems of particularist, specialist and compartmentalised law. One aspect of this is the increasing use of arbitration rather than judicial processes – that is a return to dispute resolution by way of private agreement, rather than recourse to the sovereign’s courts. Related to this, as I have mentioned above, is the recourse to technical, economic and scientific standards, as the guiding principle of governance, rather than MRC’s method which involved the application of strict legal principle in order to resolve disputes.

In this system of global governance, rather than an international form of law agreed upon by equal sovereigns, things and mechanisms that are not themselves law (not law) have the force of law. The question becomes not, is it law? or does it operate according to legal principle or for that matter the rule of law? – but – following, Deleuze/Guattari; does it work like law? That is, does it have an e/affect in the way in which we have conceived of the role and function of law previously?

Law is said to perform a number of related societal functions, including social ordering and control, social change, social education and possible, social justice. But the lesson of Foucault, and for that matter, more recently Agambem is that more diffuse mechanisms and apparatuses now perform these functions. Governance tends to become a question of biopower (the administration and management of bodies) within a global society of the spectacle, rather than a question of sovereign command.

In a society of biopolitical control – the administration of bodies using techniques such as continual monitoring and surveillance; instrumental or functional rationality, based upon an accounting of bodies replaces the old law’s technique of deciding disputes after the event of their occurrence. Bauman’s work on the Holocaust assists us in understanding the role of the bureaucracy post-MRC:

“Bureaucracy started from what bureaucracies start with: the formulation of a precise definition of the object, the registering those who fitted the definition and opening a file for each. It proceeded to segregate those in the files from the rest of the population, to which the received brief did not apply. Finally, it moved to evicting the segregated category from the land of the Aryans which was to be cleansed ….”

Applying Bauman’s description of bureaucracy to the Biological Passport system we can start to see how this mode of administration is replicated in contemporary forms of biopower. In the case of the Biological Passport we have all the elements described by Bauman:

1.    A precise definition of the object of the ideology (to cleanse the sport of the blood doper);
2.    the identification and location of the object (through blood testing and the sorting of results by the Athletes Biological Passport Software);
3.    the opening a file for each object (the Biological Passport);
4.    the segregating those in the files (by the Expert Panel); and
5.    the evicting of the segregated categories (by way of bans imposed).

In successfully carrying out these five steps, the three manifestations (and perpetrators) of instrumental rationality are also present:

-    the machine (the testing, software, and the Passport);
-    the professional (the scientists, expert panel); and
-    the bureaucracy (the UCI, WADA, CAS);

all work in tandem. What is absent is the law in the form conceived of by Weber or Dicey. This is a very different machine to that of the backward looking, dispute resolving system of the law of MRC. In the world of biopolitical governance, just like in Kafka or Lewis Carroll, everyone is potentially guilty, and the system demands, that rather than waiting for an offence to occur and become visible, the population is trawled to uncover the abnormal.

Another aspect, which points to a significant shift in the form of law and doing law post-MRC, is the limitation on the recourse to judicial organs because of the requirement for speed. Hardt and Negri have said that in the construction of Empire the establishment of courts that serve an independent function will come last (Empire: p 38).

The global (monopoly) economy and the society of the spectacle (two sides of the same coin) both require disputes to be settled as quickly as possibly, and without the tardy delays characteristic of the justice system. The public statements of many concerning both the Puerto and the Contador cases exemplify that the need for speed (to ensure the ‘integrity of sport/business’) over-determines the need to comply with older legal forms. Spanish President Rodriguez Zapatero was both right and wrong when he said that here was no legal reason to convict Contador.

Scheuermann questions the traditional belief in an elective affinity between economic liberalism and the rule of law and argues that it obscures the manner in which the process of economic globalisation threatens core features of the rule of law. He argues that because of its high-speed nature and its tendency towards deteritorialisation, contemporary capitalism is vastly different to its predecessors and that as such the fundamental relationship between capitalism and the rule of law has itself been transformed. Because global capitalism consistently and constantly revloutionises the temporal horizons of economic action its reliance on a robust model of the rule of law diminishes.  Social acceleration and deteritorialisation have diminished the dependence upon traditional rule of law virtues and as such traditional modes of liberal law decreasingly figure in the operations of the global economy. Soft law, and international arbitration, private ordering and increasing executive discretion have far more prevalent forms of governance than traditional forms of law. (Scheuermann p.145)

Rather than the machine like production of law of Weber’s modernity, which matched its machine like form of production, what is required rather than calculability and equality before the law is increasingly flexibility. (Scheuermann p.149, p.153)

Scheuermann notes that Schmitt remarked on the disturbing process of motorisation whereby legislatures calibrated their activities in accordance with high-speed temporality of society: “law making procedures become ever faster and more circumscribed, the path towards the achievement of legal regulation shorter, and the share of jurisprudence smaller”. (p.105)

Throughout the 20th century the resort to waging war against crisis became more and more commonplace and justified generous grants of discretionary authority to the executive. Enemies and natural disasters were accompanied by severe economic crises as something that threatened political stability and hence justified war being waged.
It is within this perspective that we must situate the war on drugs or the war on doping – not as isolated phenomena that are based in some prudish view of morality. In our context apparent or obvious drug use in sport threatens the very moral stability of the economic system – the myth of equal opportunity for all to ‘make it’ as an entrepreneur on the level playing field of the global market.

This is Bruyneel’s world of “We Might as Well Win” or Cadel’s “Experience, Motivation, Capability” (or Expedience, Manipulation, Culpability, as the case may be).

Let me try and bring together these key features of the law of MRC I have mentioned and contrast them to the manner in which anti-doping law and policy operates:

1.  Law emanates, and derives its force from the command of a national sovereign who has exclusive power to rule and command over a definable territory and people.

And

2.    Law applies equally to all those who find themselves within that definable people and territory

This is clearly not the case –The WADC establishes a particularist and autonomous global system of law in which its text clearly states that it is not to be read in the light of, or bound by the conditions that governed the law of MRC. The anti-doping system established by the WADC is one of the preeminent, along with probably the WTO, examples of the new global form of administrative law that is being constructed in the process of globalization.

The WADC states:

24.3 The Code shall be interpreted as an independent and autonomous text and not by reference to the existing law or statutes of the Signatories or governments.

22.3 Each government will respect arbitration as the preferred means of resolving doping-related disputes.

3.    Law in such a situation acts by way of a generality – it establishes a class of circumstances, things and people to which the norm that it states applies.

Even though the WADC is an autonomous form of law it does allow for some flexibility in respect of the application by it of its various state and sporting princes. Flexibility and discretion is allowed in order to maintain the systems single logic (which I suggest may be something other than the integrity of the spirit of sport – whatever that might mean). Thus rather by way of the general application of laws to all, the WADC operates and achieves local effectiveness by way of the flexible management of difference. Again the opening paragraphs of the WADC clearly supports this proposition:

“specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented”.

Harmonisation should not be confused with all being equal before the same law.

4.    All those who are subject to this form of law have recourse to a system of independent judiciary within the given territory of the sovereign.

And

5.    That these disputes are decided by an independent judiciary according to legal principle.

WADC arbitration takes place in the context of disciplinary matters, not matters of agreement between parties of equal bargaining power as in the free market of MRC. It takes place in the context of a system in which the accused has none of the accepted rights and liberties of a citizen, nor the ability to defend or even properly mitigate an offence. There is no effective recourse to judicial organs. There is no effective separation of powers.

Decisions are made and arbitration is carried out by way of  recourse to technical, economic and scientific standards, as the guiding principle of governance, rather than MRC’s method of the application of strict legal principle.

Furthermore, the law of the WADC is not simply forward looking in the sense of the law of MRC, it does not simply wait for an offence to become visible and act upon it in order to prosecute or decide a dispute. Just as Bauman discussed in respect of the Holocaust, anti-doping actively searches out abnormal bodies, bodies not worthy of remaining within the system, bodies that need to be segregated and deals with them upon that basis.

Taken individually the changes I have sought to describe may be regarded as being only slight or subtle changes, a little tinkering only to one part of the system, to bring it up to date with contemporary needs, whilst the other parts remain in tact. However, in a system of low entropy, such as MRC’s formalistic conception of law, the removal or change in one aspect tends to change the nature and functioning of the whole system.

It is these changes that we need to come to grips with if we are adequately going to understand the challenge that anti-doping law and policy poses for us.

The study provided some very interesting insights into the views of athletes, coaches and support personnel about doping.  In particular, the Panel noted the conclusions about the importance of athlete health in doping decisions and the implications this may have for developing deterrence strategies.

In relation to the recommendation in the report regarding a review of the Whereabouts System with the aim of reducing duplication, we note the Panel has commented that Australian IF-RTP cyclists are now only required to place whereabouts information into one system.  However, this may not have been the case when your interviews were conducted.

The interest of the Government in the importance of athlete health and new approaches to it can only be a good thing for cyclists and other athletes.

6 – 9 pm Monday 25 July 2011

Deakin University Melbourne City Centre Level 3, 550 Bourke Street, Melbourne (the Deloitte Building)

Moderator

Colin Golvan SC (Barrister, Victorian Bar)

Speakers

Christophe Brissoneau (National Center of Scientific Research – University Paris Descartes, Paris, France)

Christophe is a researcher in CERSES (Research Center “Sense, Ethics and Society”), at the University Paris Descartes-CNRS. He directed the project “Doping in Professional Sport in Europe” for the European Parliament and has recently conducted a research project on doping in cycling for WADA.  His research interests include the ambivalence of sport medicine and doping careers.

Doping careers in France between US and Eastern Bloc influences.
In the 60s, French president De Gaulle decided to create an elite sport policy on the model of East Germany (sport structures, new research medicine, training methods). In the middle of 80s, elite sport developed again with an opening to the private enterprises. This new management had as its result an increase in both performances and of pains and injury. The consequences has been a normalization of pharmacology (both legal and illegal) in high level sport.

Trent Lowe

Trent Lowe (born 8 October 1984 in Melbourne) rode for Garmin-Transitions on the UCI ProTour from 2008 to 2010. The former full-time professional mountain biker had a breakthrough year on the road in 2005 riding for the US domestic team, Jittery Joe’s, where he caught eye of Discovery Channel sports manager Johan Bruyneel. He was signed for Discovery Channel for his superior climbing abilities. In 2002 he won the UCI MTB World Junior XC Championship, then he won the under-23 Australian National Mountain Bike Championship in 2003 and 2004. Following 2 seasons of injury and chronic fatigue, the young climber signed with the new Australian team, Pegasus, before the announcement that they has failed to obtain an 2011 UCI World Tour license.

Cyclists, work health and life.

Trent will speak about his experiences as a professional cyclist and the issues he feels athletes face, including their relationships with and the expectations of the teams that hire them. His talk will address issues he encountered in trying to stay healthy and the measures he took to regain his health. His concerns raise the issues of the limited options available to athletes, the challenges that he feels cycling is faced with, and the need for riders to be given  more respect within their workplace.

Matthew Dunn (Deakin University School of Health and Social Development)

Dr Matthew Dunn is a Lecturer at Deakin University and a Visiting Fellow at the National Drug and Alcohol Research Centre, UNSW. He has an extensive research background in the field of public health, with a strong focus on the use of licit and illicit substance use among elite sporting populations. He also conducts education and training seminars with many elite sporting groups.

Athlete well being and anti-doping: Why is it always about EPO?

Much focus is given to developing newer and better tests to detect the newer and better substances that athletes may use to increase their performance. Anti-doping efforts are conducted, in part, to protect the health and well being of the athlete. Yet most athletes will not come into contact with these ‘designer’ substances; the biggest threat to their health and well being is the use of licit substances such as alcohol and illicit substances such as cocaine. This presentation will discuss substance use in sport and what  is being done to safeguard athletes’ well being.

Jason Mazanov (School of Business, UNSW)

Dr Jason Mazanov, a Senior Lecturer with UNSW, research focus looks at how social science can inform the management of drugs in sport.  He is editor of the book “Towards a Social Science of Drugs in Sport”.  Dr Mazanov is currently working on how managing doping in society (e.g. brain doping by university students) can inform the second generation of policies governing drugs in sport.

Building the Second Generation of Policies to Manage Drugs in Sport

The wisdom learned through the anti-doping policy experiment provides a platform for developing a second generation of policies to manage the role of drugs in sport.  For example, the anti-doping policy focus on legalistic “detect and punish” prioritises the integrity of sport above that of athlete welfare.  This policy provides little scope for evidence-based, best practice drug treatment or the difference between doping and licit (e.g. alcohol) and illicit (e.g. ecstasy) drug use.  Alternative policy paradigms (and their implications) are offered with different foci, including health-based harm minimisation, muscular Christianity, and returning “fun and joy” to be the central value of sport.

Martin Hardie (Deakin University School of Law)

Martin Hardie teaches law at Deakin University and has worked extensively in the world of professional cycling both as a journalist and academic researcher. He was the lead author of the I Wish I was Twenty One Now Report, the organiser of the New Cycling Pathways conference in Geelong 2010 and has recently published an extensive examination of Operacion Puerto in the book Doping and Ant-Doping Policy in Sport Ethical, Legal and Social Perspectives.

Cyclists, Anti-Doping and Medical Monitoring – a better approach?

This presentation will focus upon the merging of the Athlete’s Biological Passport with athlete health programs as a means to both develop athlete concordance with anti-doping policy and as a mechanism to achieve effective rather than simply rhetorical health management in professional cycling.

More Details to Come Soon

It should be also noted that James is not the first rider to have a difficult time with Team Type 1, Willem Van den Eynde

had an equally torrid time last year

This isn’t going to be an easy post to write, not least because I’m on a train best described as “vintage” but perhaps more accurately billed as smelly. Many of you will have noticed that I haven’t been parading about in team type one lycra as of late, nor have I been racing (or indeed dwelling) in the USA. Well I am not the only one who has not been doing things. Team type one, for their side of the bargain have not been paying me (at all, all year), not providing me with insulin, not secured my visa to remain in the USA, not returned my possessions from the team house and not reimbursed my costs for races I entered out of my own pocket.

I don’t want to slander anyone and it has taken me a long, long time to say anything at all publically. The issue is this; I am completely tied to the idea of team type one, even if it is a lie it’s a lie that can inspire many, many people and that makes it a useful lie. What isn’t a lie is that you CAN achieve just as much with diabetes as without, you CAN be a great athlete if you take control and you CAN live a healthy life with diet and exercise whether you are type one or type two. What you cannot do is live a healthy life with no insulin, no money, no house, no food and no sleep. Some of my best friends are on the team, indeed when my contract was pulled the first people I called were team type one teammates. Since my father’s breakdown last year I’ve turned to these guys for a lot more than advice on cycling ad diabetes and I still do, they remain some of my closest and most trusted friends.

I have spent a lot of nights lying awake wondering how I was going to put food in my stomach and a roof over my head. Many of these nights have been spent on the sofas and in the spare rooms of good friends when I could no longer pay rent. Some of them have been spent in my car when I felt I could no longer ask people to provide for me when the team had so manifestly failed to do so. For a long time I blamed myself for failing to provide for myself, I am pretty independent thanks to my rough n’ tumble upbringing all over the world and the idea that someone had so manifestly taken me for a ride really iot me hard.  On one of these nights I reached out to the guys at the JDF and New Cycling pathways. They got back to me instantly (that’s the nice thing about dealing with the Australians at 3am). I was feeling very, very lonely. At this point tt1 were still suggesting that they would pay me once they sorted out my visa but only if I didn’t “run my mouth” (direct quote) and I didn’t tell anyone what I was going through. Martin, Bruce and Rob have provided me with a support network which kept me in the sport and out of some pretty dark places in my own mind. Without them I wouldn’t be cycling, or writing this. If you have a minute, point it their way and look at Martin’s letter to team type one and support the JDF. I’m not the only cyclist in this position. Garmin didn’t treat Trent nicely and Matt Loyd seems to be battling his own set of demons without the help of a team support structure.

I want to make clear I’m not writing this for revenge; the moment I left the USA supposedly to collect my visa from London, Team type one cancelled my visa and contract. Thus I can’t go back to the US and take legal action and I’m not going to get the wages I am owed. Neither am I going to get my possessions; books, notes for my PhD, a Christmas present my little sister gave me, the first painting I ever bought. These things mean nothing to anyone who isn’t me but they are being withheld if they haven’t been thrown away or sold already. I am writing this for a couple of reasons: Firstly I want to allow myself to move on. Secondly I want people to know so this kind of shenanigans can’t be repeated (this isn’t the first time it’s happened) and Thirdly I want to say this before someone in the team PR structure puts words into my mouth.

Anyway, it’s probably about as much fun reading this as it is writing it. Long story short. I came back thinking I was home for a week, collecting my visa and going back to (finally) race and get paid. Now I’m home indefinitely trying to get a visa to go back and complete my PhD but that’s hard when you’ve had your previous work visa cancelled…. I’ve asked for some of my inheritance early , that was one of the hardest things I’ve ever had to do but it was marginally easier than sleeping on a bench and starving so I did it. Everything is back in the US, thankfully I had good friends who put it in storage for me but I have nothing, a bike and a bag of clothes. My books and my notes for my PhD are an ocean away, making work difficult, heck I don’t even have a functioning bike pump.

There are more details, and a million emails. None are fun to read. The justification for my termination of contract was as follows; Wearing a t-shirt with the word penis on it and retweeeting Al-Jazeera. Yup, on a cycling team you don’t have freedom of speech. It’s laughable that they couldn’t come up with something better. But I suppose it’s also laughable that I believed their stories for so long.
I want to make clear that every cloud has a silver lining. Bernat as put me up in Tarragona, bought me my own bodyweight in coffee and breakfast and connected me here. Without him, I’d be lost. Emily Baker has provided a constant source of support, the occasional meal and movie ticket and generally a fantastic friendship. Mike has just been mike,he has fewer digits and a bigger heart than anyone. Jesse has been a great coach and friend so has Chris  The Now-MS girls gave me their sofa to sleep on, Dan Wulbert let me stay in his home for nearly 3 months at a fraction of real rent and provided me with constant positive support and conversation, Marc Zionts put me up for a month rent free. Without these guys I would have been sleeping in the car for 6 months now. David Cobb and Team Traveller have taken me in, kitted me out in fantastic looking zebra-stripy spandex and given me a nurturing and supportive atmosphere to try and compete in. Gordon @velohangar kept my bike rolling when I lacked the skill and income to do so myself, go there, buy stuff! And the guys up In Norcal comped my race entries. Jeff and Aaron showed concern over twitter and Steve helped me manage my condition when the team’s actions actively harmed my control.

To all of you, thank you.

As expected no response has been received to the following letter:

Richard H Bennett

Kitchens Kelley Gaynes

Attorneys at Law

Atlanta

Georgia, USA.

6 June 2011

Dear Mr Bennett,

RE: Team Type 1, Inc. (“TT1″) and James Stout; Your file no. 77031.1

Thank you for your letter of May 12 2011.

Firstly, in respect of the allegation you have made in respect of libel and other matters with which you have taken “great exception”. Our original letter to you was copied to members of the Jobie Dajka Foundation, including myself, who have been assisting Mr Stout in respects of the difficulties he has faced as a result of his dealing with Team Type 1.

The letter was also copied to the UCI and the USCF as both bodies have the power to deal with and arbitrate disputes between their members. Members of the UCI are subject to its rules and those rules make specific provision for disputes between riders and teams to be dealt with by the UCI Arbitral Board. There is no provision in those rules that limits such dispute resolution to ‘professional’ cyclists. In fact that term is probably meaningless in this context since the merging of the professional and amateur bodies in the 1980s.

If in fact the term professional has any meaning in this context it would carry with it a meaning that referred to a person who is paid to be a sportsperson, in this case a cyclist. The contract clearly envisages Mr Stout to be paid for his services, something we will refer to below. In respect of the USCF it is bound by the UCI Constitution and Regulations and in some circumstances has the power to carry out the functions of the UCI.

Having dealt with what appears to be the customary chest beating by US Attorneys may we move on to deal with the substance of the matters at hand?

An assertion by you that Mr Stout’s termination was valid does not mean that it was in fact or law valid. In respect of this we note that you have forwarded to us some 42 pages of contracts and related codes which you claim Mr Stout is bound by. Given your assertion that Mr Stout is not a professional cyclist this does appear somewhat excessive. In this context, and generally, it is difficult to understand why Mr Stout was subject to such a contract and conditions, especially when the conditions contained therein are more detailed, far reaching and onerous than that which a Pro Tour rider is subject. We leave for another day the question as to whether the entire contract may or may not be unconscionable in the circumstances.

Although your client undertook to pay Mr Stout a monthly salary of $1000 US, you claim that no fee is payable up until the point of termination of the contract on the grounds that because Mr. Stout did not must provide any services to Team Type 1. It is not apparent from your letter upon what you base your claim that Mr Stout has not provided services. I note that the contract requires Mr Stout to perform various services for the team, including to race for the team, to maintain reasonable competitive fitness throughout the season and to participate in training sessions and promotional activities. During 2011 alone Mr Stout provided at least the following services to the team:

Promotional Services: The 2011 Tour de Cure breakfast, the Omnipod sponsor day in Redding. Mr Stout has provided substantial biographical information and completed numerous questionnaires for the team’s public relations staff. He competed in the San Diego Gran Fondo. His image and profile appeared, and continue to appear, on the team’s web site: http://www.teamtype1.org/teams/team_type1_development/james_stout/

Training Services: Mr Stout trained regularly, at least 25 to 30 hours per week, in order to provide the Team with the service of maintaining his reasonable fitness as set out in the contract. He received correspondence from team staff setting out training plans and advice which he followed.

Racing and Promotional Services: Mr Stout raced the Murco Credit Union stage race, Merced County Cycling Classic and three criteriums promoted by the California Bicycle Racing Organisation at Dominguez Hills, California.  At all times Mr Stout raced and trained in his Team Type 1 clothing.
Accordingly, there is no basis for you to claim that no services were provided under the contract.

In respect of the visa, Mr Stout advised the team that he would need a visa before the contract came into force, that is during December 2010. At that time Team Type 1 undertook to organize a visa for Mr Stout and once the contract commenced Mr Stout undertook services under the contract for the Team. The Team induced Mr Stout to perform those services on the basis that it would organize his working visa.

In respect of the purported termination. Firstly you claim:

Mr. Stout was required (a) “to conduct himself… in accordance with generally accepted standards of morality [and not to engage] in any activity which reflects adversely on the image…” of major sponsors, (b) to conduct himself in a sportsmanlike manner, (c) to maintain a clean and neat appearance, (d) to maintain a respectful behavior, and (e) to accept direction from management. Mr. Stout failed to abide by these requirements when he appeared at a TT1 related function wearing a t-shirt with prominent reference to male genitalia, leading to his April 23, 2011 probation.

Let us be clear. One, you cannot have it both ways, by claiming that the event was a “TT1 related event” you are conceding that Mr Stout was performing promotional services under the contract. On the other hand, the fact is that the event in question was a private party organised by a friend of Mr Stout’s who had invited Mr Stout personally to the party. The mere fact that some other person related to Team Type 1 attended the party does not mean it is a “TT1 related event”. In these circumstances it appears that what is in issue is that Mr Stout did not conduct himself… in accordance with generally accepted standards of morality” because he wore “a t-shirt with prominent reference to male genitalia” in circumstances not related to his employment.

The facts are these:

Mr Stout attended a private party outside of his employment. It was not a Team Type 1 event.

At that party he wore a T-Shirt which had on it the words “I ride a bicycle to compensate for my enormous penis”.

The word PENIS is commonly defined as referring to the male genital organ of higher vertebrates, carrying the duct for the transfer of sperm during copulation. In humans and most other mammals, it consists largely of erectile tissue and serves also for the elimination of urine.

It is not regarded as a offensive term or a term contrary “generally accepted standards of morality”.

The case might be different if the language displayed on the T Shirt was offensive or contrary to “generally accepted standards of morality”, however, it beggars belief to argue that the word PENIS could be regarded as such.

Accordingly, there was no basis for your client to place Mr Stout on probation. In any event, why would any employer place an employee on probation if that employee was not employed and was not performing services under a contract?

The second allegation upon which the termination of the contract was based was stated in your letter as being that that “Mr. Stout then again violated his contract during his probation when he tweeted offensive language in violation of the above-described requirements and after a previous oral warning regarding Mr. Stout’s inappropriate use of social media in contradiction of ’TT1 policy.”

You have provided no evidence of the alleged previous oral warning and in any event here again the substance of the allegation beggars belief.

The “tweet” you refer to contained the following words:

RT @AJELive: Afghan president Hamid Karzai says that the killed of Osama bin Laden is very important news. #AlJazeera #noshitsherlock

On the Letter of Termination sent to Mr Stout Team Type 1 claim that this constitutes a breach of the provisions in the Code of Conduct relating to “Work Place Violence”. How such an action constitutes workplace violence is not described and in any event it clearly does not constitute such an act.

The Letter of Termination also states that the “tweet” had the consequence of having a negative effect for Phil Southerland while in discussions with the Muslim Community. No evidence of any discussions or negative effect has been produced and it is difficult to see how such a “tweet” could in fact have such an affect.

Finally, am I to understand that you seriously claim that the hashtag, #noshitsherlock, which appears constantly on twitter is regarded as being offensive language?

I note that you have not contested (other than the question of whether Mr Stout was performing services under the contract) the following matters set out in my original letter to you on behalf of Mr Stout:

-    that whilst performing his duties under his contract Mr Stout had to sleep in a car or on friend’s sofas as his wages had not been paid;

-     that Mr Stout’s supply of insulin was canceled by the Team whilst he was living in the US and performing services for the Team;

-    that the cancellation of the insulin supply and the distress relating to his contractual situation have had a negative effect on the management of his diabetes condition.

In all of the circumstances Mr Stout continues to believe (and with good grounds) that Team Type 1 owes him his salary or at least an ex gratia payment equivalent to his salary for the first five months of 2011. I note your view that the payment for the fifth month should be prorated, however given the circumstances of his treatment it would seem that the least the Team could do is compensate him fairly.

Along with that the Team should forward his personal affects to him without further delay. I will send you an address for the delivery of the personal affects as soon as possible.

I have not written to you as Mr Stout’s attorney but as a person involved in cycling who believes that riders of all levels should be treated with dignity and respect and not unfairly or arbitrarily. Team Type 1 may well believe it was within its rights to act in the way it did, but on any fair reading of the situation it would seem that they have not acted as well as they should have in respect of Mr Stout and when he questioned this the Team relied on rather onerous and draconian contractual provisions to get rid of him.

I must note that I find it very difficult to understand why, given Team Type 1’s stated ‘global mission’ how the act of stopping Mr Stout’s supply of insulin can be justified on any grounds. Notwithstanding, that team members had been advised that insulin would be supplied by to them by team sponsors, there appears to be a discrepancy between the public rhetoric of being a charity that aids and supports diabetic people, and the reality of this callous action. The action of the team left Mr Stout in a precarious position, without money, a home or insulin, and Mr Southerland’s advice to him that he should visit a doctor and ask for free insulin samples appears even more incredible given his personal ‘mission’.

I look forward to being able to convey to Mr Stout an amicable resolution of this matter.  However, given the manner in which Mr Southerland has dealt with him in the past I do not hold out much hope for a amicable resolution. I would be delighted to be proven wrong on this.

Mr Stout currently has no income, and his attempting to rebuild his life and focus upon his studies, he has no funds with which to take legal action against Team Type 1. However, in the end it seems that Mr Stout’s only remedy can be in the court of public opinion and through the good offices of those that administer the sport of cycling in the USA and internationally.

Yours faithfully

Martin Hardie

For and on behalf of James Stout.

60 Minutes Video One

Sixty Minutes Video Two

UCI issues press release stated that Tyler Hamilton’s accusations on 60 Minutes were “unfounded.” “The UCI can only confirm that Lance Armstrong has never been notified of a positive test result by any anti-doping laboratory. Aside from the fact that no legal action may now be taken in respect of events that occurred in 2001, the UCI also wishes to point out that in doping cases it must abide by the rules of evidence; any statutory or scientific evaluation must necessarily be made on the basis of the rules, knowledge and detection methods available at the time. Once again, the UCI wishes to state that no manipulation or cover-up has occurred in respect of its anti-doping procedures. The UCI will continue to defend its honour and credibility by all means available, and reserves the right to take any measures it deems necessary against Mr Hamilton or any other person.”

SI writers who investigated Armstrong for an article in the magazine ask: “Was Armstrong too big to fail?”

USADA may investigate claims against Armstrong for potential sanctions

Aussie lawyer blogger birdie asks Premier of South Australia questions (again)

Tyler’s Lawyer on why he came clean

NY Daily News columnist says recent revelations brought on by fear of perjury charges, not greed

Absolute Punk finds use for yellow bracelets

ESPN’s Bonnie Ford gives her view on the important points from the 60 Minutes broadcast

Guardian summary of the 60 Minutes broadcast

New Yorker writer invokes comparison to Richard Nixon under siege from Watergate for Armstrong

Division among reactions to latest Armstrong accusations

Toronto Star’s Randy Starkman gives an answer to the father of a 12-year-old who asks about Armstrong: “What do I tell him now? Let’s hope he gets to hear the truth.”

NYT Juliet Macur provides insights on Hamilton’s accusations from a variety of sources

NYT George Vecsey says that Armstrong is still innocent until proven guilty

Writer says that Lance writes that the “never tested positive” defense still trumps everything else

Economics professor writes that while Armstrong’s spokesman uses greed to challenge the credibility of witnesses against Lance, the same charge could be made as a reason for Armstrong’s alleged drug use

Bicycling writers give their opinion on the veracity of the newest charges against Armstrong

Aussie writer says that many have already made up their minds regarding Armstrong’s guilt or innocence, but finishes with: “Most of us stopped believing in Santa Claus when we were about five. Perhaps it’s time we stopped believing in Lance as well.”

The big question amid all this speculation is what is going to happen with the Grand Jury impaneled to decide whether or not a case against Armstrong and/or others should go to trial

Armstrong’s sponsors stick by him despite latest allegations http://www.hollywoodreporter.com/news/nike-anheuser-busch-stand-by-191082 Floyd Landis says he knows what Hamilton is going through in making his public confession

We must rely on facts to judge Armstrong writes Dopinglist

More from former Armstrong teammate, Viatcheslav Ekimov on the 60 Minutes allegations

ESPN writer urges Armstrong to “confess”

Blogger writes that “Lance still has the benefit of the doubt, but that doubt is running down swiftly

Blogger believes latest accusations are substantial enough to prove guilt

WSJ writer says that the latest accusations reveal that cycling is “a beautiful sport is haunted by its history”