- Gender, Athletes' Rights, and the Court of Arbitration for Sport by Helen Jefferson Lenskyj
Helen Jefferson Lenskyj, currently Professor Emerita at the University of Toronto, has written many important books about the intersections among power, politics, and gender in sports. Her Inside the Olympics Industry: Power, Politics, and Activism (SUNY Press, 2000) and Olympic Industry Resistance: Challenging Olympic Power and Propaganda (SUNY Press, [End Page 421] 2008) offer compelling exposés of the Olympic industry. She rejected triumphal portrayals of the Olympics in favor of no-holds-barred analysis of bribery, bias, and the manifold consequences the Olympics pose for host cities and athletes. Gender, Athletes' Rights, and the Court of Arbitration for Sport continues this incisive brand of analysis by examining the Court of Arbitration for Sport (CAS), a "specialized sport 'court' that promised to resolve disputes effectively and fairly" which has been in operation since 1983 (2). She bases her analysis on the decisions of the CAS and the Swiss Federal Tribunal, in addition to other courts, arbitrators, and disciplinary panels, during the period 1986—2018. She focuses particularly on cases "in which gender and/or 'race'/ethnicity played a part, whether directly or indirectly" (6).
Lenskyj divides the book into two parts, each containing two chapters. Part I discusses arbitration proceedings and shines a spotlight on the CAS. In so doing, she skillfully illuminates unsavory, and often shocking, elements of the CAS. Lenskyj contends, "the language around the decades-long campaign to make sports law special threatens athletes' fundamental rights, and, ultimately, the integrity of sport" (16). For one, the International Council of Arbitration for Sport, the body that provides oversight of the CAS, did not achieve gender equality until 2016. Furthermore, the CAS's Ad Hoc Division, which hears appeals in Olympic host cities, did not contain an equal number of men and women until 2016. Men still predominate among CAS arbitrators. In addition, the International Olympic Committee tends to exert a great deal of pressure over the CAS. The IOC provides financial support, plays an important role in the appointment of CAS members, and has the power to change CAS statutes. This is particularly troubling when one understands that the arbitration process tends to favor bodies like the IOC rather than appellants, who are often "disadvantaged when facing powerful organizations represented by highly experienced (and expensive) counsel" (40). Many of the benefits the CAS supposedly offers, such as privacy, are not very beneficial. Private and confidential proceedings often result in hearsay rather than fair and accurate reporting by the media. In sum, the deck is often stacked against athletes, particularly athletes from the Global South.
Part II examines the "war against doping." Most people would likely agree, especially given the proliferation of recent scandals, that doping is "the most serious problem confronting high performance sport and a major threat to its global reputation and integrity" (71). Lenskyj argues that the fight against doping is not justified and, moreover, poses grave threats to the rights of athletes, particularly women athletes and athletes of color. Controversially, the CAS presumes guilt whenever they detect a banned substance. Moreover, and even more problematically, the CAS usually treats doping offenses as criminal in nature, but often fails to offer athletes procedural protections criminal cases require. The media tend to be complicit partners because they are "more than willing to circulate the myth that justice has been done as they provide details of doping allegations, defenses, decisions, and penalties, along with the rare redemption story" (94). Lenskyj argues that CAS doping decisions are inconsistent and that athletes often receive very different, and many times disproportionately harsh, punishments. All this leads her to remark, scathingly, about the "unpredictability and unfairness of doping-related CAS decisions" (113). Furthermore, Lenskyj analyzes recent testosterone-related controversies, specifically questions about the eligibility of women athletes with higher than average endogenous testosterone [End Page 422] (hyperandrogenism). The research on hyperandrogenism, she asserts, "risks pathologizing yet another aspect of female physiology and legitimizing what may prove to...