Sporting Justice: An Arbitrator's Perspective

Drawing on my experience of a number of sports dispute resolution tribunals in the UK and Ireland (such as Sports Resolutions UK; Just Sport Ireland; the Football Association of Ireland’s Disciplinary Panel and the Gaelic Athletic Association’s Dispute Resolution Authority) I intend to use this paper to review the legal arguments typically made in sports-related arbitrations. These points of interest can be summarised as a series of three questions: the fairness question; the liability question; the penalty question.

In answer to the fairness question, the aim is to give a brief outline on best practice in establishing a "fair" sports disciplinary tribunal. The answer, I believe, is always twofold in nature: first, and to paraphrase Lord Steyn in R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 at [28] "in law, context is everything" – translated into the present matter, this means that in sports disciplinary cases, the more serious the charges against the individual (in terms of reputational damage, economic impact and/or length of sanction); the more tightly wrapped the procedural safeguards surrounding any subsequent disciplinary hearing must be. A fair disciplinary system will be discussed in the context of the principles laid down in Article 8 of the World Anti-Doping Code which, in effect, acts as sport’s Article 6 of the ECHR on a right to a fair trial.

Following on from the above, in the 60 or so sports arbitrations that I have heard, there are two further points of interest. First, the claim before the arbitral panel will often be framed in an argument that, for various reasons of substantive and procedural irregularity, the sanction imposed on the appellant should be quashed ("the liability"). Second, and in alternative, that the sanction imposed was wholly disproportionate ("the penalty").

The liability issue usually breaks down into two further questions. First, what is the nature of the legal duty upon a sports body in exercising its disciplinary remit? Second, to what extent does a de novo hearing on appeal cure any apparent defects in a hearing of first instance? The first issue often results in an arbitral panel debating the contra preferentum approach to the interpretation of a contested rule i.e., the sports body’s rules in question are so ambiguous that they should be interpreted in a manner to the detriment of the rule maker and in favour of the appellant. On the second matter, it now appears to be a general principle of sports law, administrative law and even human rights law that even if a violation of the principles of natural justice takes place at the first instance stage of a disciplinary process, they may be cured on de novo appeal. Authority for this approach can be found at the Court of Arbitration for Sport and in particular in CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v UEFA at para 87.

The question on proportionality asks what, aside from precedent found within the decisions of the sports body in question, are the general legal principles against which a sanction by a sports disciplinary body can be benchmarked in order to ascertain whether it is disproportionate in length or even irrational in nature?

On the matter of (dis)proportionality of sanction, the debate is usually guided by the authority in Bradley v the Jockey Club [2004] EWHC 2164 (QB) and affirmed at [2005] EWCA Civ 1056. The Bradley principles on proportionality of sports-specific sanctions, recently cited with approval at the Court of Arbitration for Sport, will be examined in this presentation.

Finally, an interesting application of many of the above principles (and others such as the appropriate standard of proof in sports disciplinary procedures) can be made to recent match-fixing or corruption related hearings held by the British Horse Racing Authority, the integrity units of snooker and tennis, and at the Court of Arbitration for Sport.

Reclaiming the Radical in Universal Human Rights: Universality as Universalisation

The universality of human rights has been a fiercely contested issue throughout their history. This article contributes to scholarly engagements with the universality of human rights by proposing a re-engagement with this concept in a way that is compatible with the aims of radical politics. Instead of a static attribute or characteristic of rights this article proposes that universality can be thought of as, drawing from Judith Butler, an ongoing process of universalisation. Universality accordingly emerges as a site of powerful contest between competing ideas of what human rights should mean, do or say, and universal concepts are continually reworked through political activity. This leads to a differing conception of rights politics than traditional liberal approaches but, moreover, challenges such approaches. This understanding of universality allows human rights to come into view as potentially of use in interrupting liberal regimes and, crucially, opens possibilities to reclaim the radical in rights.

Tullis Rennie's Muscle Memory: Listening to the Act of Listening

This paper explores a recent, broadly 'electroacoustic', fixed medium composition by Tullis Rennie, which uses his background in ethnographic fieldwork to explore (in this case through auto-ethnography) modes of listening, and the role of technologies in mediating this listening. Muscle Memory: A conversation about jazz, with Graham South (trumpet) (2014) begins to answer questions about how one work can comment on and analyse or critique another through its own agency as music, bringing composition and ethnography together in fruitful collision, and illuminating the human capacity to manipulate and be manipulated by musical activity. The paper uses the piece to test the extent to which four functions, identified by Simon Frith (1987. Towards an aesthetic of popular music. In R. Leppert & S. McClary (Eds.), Music and society (pp. 133-49). Cambridge: Cambridge University Press) as crucial to the meaningfulness of popular music may, in the context of ubiquitously technologised music, have broader application than he originally intended.

Generation, Release, and Uptake of the NAD Precursor Nicotinic Acid Riboside by Human Cells

NAD is essential for cellular metabolism and has a key role in various signaling pathways in human cells. To ensure proper control of vital reactions, NAD must be permanently resynthesized. Nicotinamide and nicotinic acid as well as nicotinamide riboside (NR) and nicotinic acid riboside (NAR) are the major precursors for NAD biosynthesis in humans. In this study, we explored whether the ribosides NR and NAR can be generated in human cells. We demonstrate that purified, recombinant human cytosolic 5'-nucleotidases (5'-NTs) CN-II and CN-III, but not CN-IA, can dephosphorylate the mononucleotides nicotinamide mononucleotide and nicotinic acid mononucleotide (NAMN) and thus catalyze NR and NAR formation in vitro. Similar to their counterpart from yeast, Sdt1, the human 5'-NTs require high (millimolar) concentrations of nicotinamide mononucleotide or NAMN for efficient catalysis. Overexpression of FLAG-tagged CN-II and CN-III in HEK293 and HepG2 cells resulted in the formation and release of NAR. However, NAR accumulation in the culture medium of these cells was only detectable under conditions that led to increased NAMN production from nicotinic acid. The amount of NAR released from cells engineered for increased NAMN production was sufficient to maintain viability of surrounding cells unable to use any other NAD precursor. Moreover, we found that untransfected HeLa cells produce and release sufficient amounts of NAR and NR under normal culture conditions. Collectively, our results indicate that cytosolic 5'-NTs participate in the conversion of NAD precursors and establish NR and NAR as integral constituents of human NAD metabolism. In addition, they point to the possibility that different cell types might facilitate each other's NAD supply by providing alternative precursors.

Northern Ireland: Religion and Transitional Justice

The right to practice religion is recognised as one of the universal liberties transitional justice interventions are designed to defend, and religion is often mentioned as one of the cultural factors that impact on local transitional justice practices from below. Many human rights cases of abuse, however, are motivated by religious extremism and the association of religion with conflict has largely a discouraged reflection on its positive contribution to transitional justice. This field is undeveloped and the little work that elaborates its positive role is descriptive. This paper theorises the relationship between religion and transitional justice and develops a model for understanding its potential role that better allows an assessment of its strengths and weaknesses. The model is applied to original research conducted on ex-combatants in Northern Ireland, and concludes that only in very limited circumstances can religious actors make a telling contribution to transitional justice.Understanding what these circumstances are is the purpose of the model developed here.

After the Critique of Rights: For a Radical Democratic Theory and Practice of Human Rights

The critique of human rights has proliferated in critical legal thinking over recent years, making it clear that we can no longer uncritically approach human rights in their liberal form. In this article I assert that after the critique of rights one way human rights may be productively re-engaged in radical politics is by drawing from the radical democratic tradition. Radical democratic thought provides plausible resources to rework the shortcomings of liberal human rights, and allows human rights to be brought within the purview of a wider political project adopting a critical approach to current relations of power. Building upon previous re-engagements with rights using radical democratic thought, I return to the work of Ernesto Laclau and Chantal Mouffe to explore how human rights may be thought as an antagonistic hegemonic activity within a critical relation to power, a concept which is fundamentally futural, and may emerge as one site for work towards radical and plural democracy. I also assert, via Judith Butler's model of cultural translation, that a radical democratic practice of human rights may be advanced which resonates with and builds upon already existing activism, thereby holding possibilities to persuade those who remain sceptical as to radical re-engagements with rights.

The planning and control of operations involving the use of lethal force

This is an analysis of the case law of the European Court of Human Rights on the obligation on States to plan and control the use of potentially lethal force by their police and military personnel. It illustrates the Court's attachment to the strict or careful scrutiny test and suggests how the Court might want to develop its jurisprudence in the future.

Arsénio em águas subterrâneas em Portugal

Da totalidade da água existente na Terra, somente 1% diz respeito à água subterrânea, recurso finito e essencial para a sobrevivência do Homem. A composição química das águas subterrâneas é influência não só pela actividade humana, mas também pelas características químicas do substrato geológico. As rochas e os sedimentos funcionam como meio de transporte e armazém desse tipo de águas e a presença de certos minerais pode originar a contaminação natural das águas subterrâneas em elementos prejudiciais para o Homem. Um desses elementos é o arsénio. Uma vez que a concentração máxima admitida de arsénio para água consumo humano diminuiu dos anteriores 50 mg.l-1 para os actuais 10 mg.l-1,a probabilidade de encontrar concentrações naturais em arsénio em águas subterrâneas acima desse limite aumentou. Este trabalho visa estudar e compreender, através de ensaios laboratoriais, a interacção água/rocha em termos químicos e a mobilidade/comportamento do arsénio em seis zonas de Portugal Continental com contextos geológicos diferentes (Vila Flor – Formação Filito-Quartzítica, Baião – granitos, Cacia – sedimentos do Cretácico, Mamodeiro – sedimentos do Neogénico, Escusa – calcários dolomíticos e Beja - gabros). Para o efeito, nas zonas de estudo mencionadas foram colhidas amostras de rocha ou sedimento e de água subterrânea que foram analisadas para 36 e 76 elementos, respectivamente. A componente mineralógica e as fases suporte do As foram estudadas recorrendo à análise por difracção de raios X, microssonda electrónica e à aplicação da extracção química selectiva sequencial. A mobilização do As foi avaliada através da realização de ensaios de coluna e de agitação com hidrocarbonetos derivados do petróleo. No primeiro ensaio, a circulação de diferentes soluções com diferentes velocidades lineares no interior de colunas de vidro cheias de rocha moída, avaliou a presença de As associado a fases hidrossolúveis e biodisponíveis. No segundo, a agitação de rocha moída com água e hidrocarbonetos derivados do petróleo pretendeu avaliar o comportamento do As quando um aquífero apresenta uma contaminação com aquele tipo de hidrocarbonetos.