Inclusion and exclusion in competitive sport

Nottingham Law School (NLS) has an active and internationally recognised research culture. Our research has a practical impact on lives and society, and contributes towards scholarship and policy reform in a range of influential fields. Recently, NLS launched the Centre for Sports Law, which is focused on the development and enhancement of research activity in the field of sports law. The centre plays a significant role in the development of this subject in the NLS curriculum. Complementing this, the centre engages in key sector debates by pursuing and exploring current topics in sports law, as well as contributing towards the ongoing dialogue concerning the relationship between the law and sport.

One hot topic in the field is discrimination. The inherent tension between inclusion and exclusion continues to surface in modern sport. As these issues arise, the role of the law is a critical academic and practical consideration for effective regulation of discrimination.

Recent key incidents suggest that the governing bodies of sport are increasingly acting in a manner that is inconsistent with wider principles of equality.

Discrimination in sport

In 2012, a British female canoeist, Samantha Rippington, launched a legal challenge against the organisers of the London Olympics because of the absence of women's canoe racing events from the programme. She brought judicial review proceedings in the English courts on the grounds of discrimination under the Equality Act 2010. However, permission to apply for judicial review was refused. Women continue to face unnecessary barriers in competitive and non-competitive positions in sport.

In 2014, Indian teenage sprinter Dutee Chand was forced to withdraw from competition after falling short of the International Association of Athletics Federation (IAAF) rules and failing a "gender verification test". Since the test revealed elevated levels of testosterone, she can only return to competing if she undergoes surgery to lower her testosterone levels to an "acceptable" level. In October 2014, she filed an appeal to the Court of Arbitration for Sport against the IAAF decision. Experts have raised a number of concerns about the accuracy of the policy, which ultimately seeks to police the traditional categories of sex and gender.

In cricket, Pakistan bowler Saeed Ajmal was suspended for an illegal bowling action. International Cricket Council (ICC) rules deem an action illegal and an unfair advantage if the arm is flexed beyond 15 degrees. However, it is claimed that Ajmal injured his elbow in a car crash and therefore possesses a natural kink in his arm which enables him to rotate his elbow sideways. The public scrutiny that cricketers face for alleged "chucking" could be considered unfair and discriminatory if they have a similar condition or disability.

Finally, the culture of under-representation in sport is reflected by a recent study which showed the continued absence of black and ethnic minority coaches and managers in football, with less than 4 per cent of non-competitive posts given to ethnic minorities. The study refers to institutional discrimination and racial stereotyping as contributors to this disparity. It is proposed that a version of the NFL's 'Rooney Rule' is introduced, which would require clubs to interview at least one minority candidate for a post.

Role of law

These examples of sex, gender, disability and race discrimination serve to illustrate the potential incompatibility of sport with the existing legal framework of equality legislation in circumstances where there is no justification for differential treatment. Out of the sporting context exists a range of international, regional and domestic discrimination laws that seek to protect individuals from derogatory treatment and uphold principles of equality.

In order to ensure that individuals are included in sport where they are qualified to do so, it is important that a balance is struck between the nature of sport and adherence to legal principles. There is potential for the law to intervene and play a complementary role in the facilitation of change through varying levels of regulation, from an internal audit of the structures and processes of sport governing bodies to the establishment of an international anti-discrimination unit, which would act as an enforcer in the fight against discrimination in sport.

Where sport is not willing to engage with this process, there is an argument for the legal regulation of sport governing bodies through public accountability under equality legislation. The future of equality in the sports industry is reliant upon better regulation of overt and covert practices in the field.

This article is adapted from the book entitled Inclusion and Exclusion in Competitive Sport: Socio-Legal and Regulatory Perspectives by Dr Seema Patel. To be published by Routledge in 2015

Seema Patel is a senior lecturer in law at Nottingham Trent University

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