Revitalising a phantom regime: the adjudication of human rights complaints in sport

  • Daniel WestEmail author


The protection of fundamental human rights in sport has increasingly been at the forefront of public consciousness over recent years. The response from the sport sector has been a number of measures that purport to bolster its own human rights credentials, with a number of key governing bodies taking steps to implement principles of international human rights law through soft regulation and institutional initiatives. With access to remedy representing a key pillar of human rights protections, however, the extent to which these measures can be enforced via third party adjudication is key to understanding the effectiveness of these developments. This article makes two key assertions. First, that the current system for adjudicating human rights complaints in sport lacks cohesion, effectiveness and credibility; it is consequently a ‘phantom regime’. Second, it will argue that the best means of addressing the accountability gap created by this phantom regime is through a closer alliance with principles of public international law—it will then proceed to examine the case for a specialist Court of Arbitration for Sport and Human Rights. In doing so, it will seek to emphasise the value of a functional adjudicatory system to the overall effectiveness of human rights protections in sport, and consider how best this objective might be achieved.


Human rights Access to remedy Adjudication Court of Arbitration for Sport (CAS) Judicial remedy International courts and tribunals Public international law United Nations Guiding Principles (UNGPs) 



  1. Byrnes A (2016) Human rights and the anti-doping lex sportiva—the relationship of public and private international law, ‘law beyond the state’ and the law of nation states. In: Haas U, Healey D (eds) Doping in sport and the law. Bloomsbury Publishing, LondonGoogle Scholar
  2. Casini L (2012) The making of a lex sportiva by the Court of Arbitration for Sport. Ger Law J 12:1317Google Scholar
  3. Černič LJ (2014) Emerging fair trial guarantees before the court of arbitration for sport. In: 10th anniversary conference papers, conference paper no. 9/2014. European Society of International Law, ViennaGoogle Scholar
  4. de Oliveira LVP (2017) Lex sportiva as the contractual governing law. Int Sports Law J. Google Scholar
  5. Droubi S (2016) Transnational corporations and international human rights law. Notre Dame J Int and Comp Law 6:119Google Scholar
  6. Fischer-Lescano A, Teubner G (2004) Regime-collisions: the vain search for legal unity in the fragmentation of global law. Michelin J Int Law 25:999Google Scholar
  7. Foster K (2003) Is there a global sports law? Entertain Sports Law J 2(1):1–18. Google Scholar
  8. Haas M (2013) International human rights: a comprehensive introduction, 2nd edn. Routledge, AbingdonGoogle Scholar
  9. Haas U (2012) Role and application of article 6 of the European Convention on Human Rights in CAS procedures. Int Sports Law Rev 12(3):43–60Google Scholar
  10. Heerdt D (2018) Tapping the potential of human rights provisions in mega-sporting events’ bidding and hosting agreements. Int Sports Law J 1:1. Google Scholar
  11. Higgins R (2007) Human rights in the international court of justice. Leiden J Int Law 20(4):745–751. Google Scholar
  12. Kane D (2003) Twenty years on: an evaluation of the Court of Arbitration for Sport. Melb J Int Law 4:611Google Scholar
  13. Kinley D, Tadaki J (2003–2004) From talk to walk: the emergence of human rights responsibilities for corporations at international law. Va J Int Law 44:931Google Scholar
  14. Liu JH (2007) Lighting the torch of human rights: the Olympic games as a vehicle for human rights reform. Northwest J Int Hum Rights 5:213Google Scholar
  15. Mitten MJ (2014) The Court of Arbitration for Sport and its global jurisprudence: international legal pluralism in a world without national boundaries. Ohio State J Dispute Resolut 30:1Google Scholar
  16. Nguyen ABY (2018) Fairness at a price: protecting the integrity of athletic competitions at the expense of female athletes. Notre Dame J Int Comp Law 8(1):54–75Google Scholar
  17. Nolan J (2014) Refining the rules of the game: the corporate responsibility to respect human rights. Utrecht J Int Eur Law 30(78):7–23Google Scholar
  18. Ravjani A (2009) The Court of Arbitration for Sport: a subtle form of international delegation. J Int Media Entertain Law 2:241Google Scholar
  19. Rayfuse R (2005) The future of compulsory dispute settlement under the law of the sea convention. VUWLR 36: 683, 684Google Scholar
  20. Serby T (2017) Sports corruption: sporting autonomy, lex sportiva and the rule of law. Entertain Sports Law J 15(2):1–9. Google Scholar
  21. Shelton D (ed) (2013) The Oxford handbook of human rights law. Oxford University Press, OxfordGoogle Scholar
  22. Simma B, Alston P (1988) The sources of human rights law: custom, jus cogens, and general principles. Aust Yearb Int Law 12:82–108Google Scholar
  23. Ssenyonjo M (2008) The applicability of international human rights law to non-state actors: what relevance to economic, social and cultural rights? Int J Hum Rights 12(5):725–760Google Scholar
  24. Sulyok M (2014) ‘In all fairness…’: a comparative analysis of the past, present and future of fair trial systems outside of Europe. In: Badó A (ed) Fair trial and judicial independence. Ius gentium: comparative perspectives on law and justice, vol 27. Springer, ChamGoogle Scholar
  25. Treves T (2010) Human rights and the law of the sea. Berkeley J Int Law 28:1Google Scholar
  26. Wettstein F (2015) Normativity, ethics and the UN Guiding Principles on business and human rights: a critical assessment. J Hum Rights 14(2):162–182. Google Scholar

Copyright information

© T.M.C. Asser Instituut 2019

Authors and Affiliations

  1. 1.Practising solicitor of the Senior Courts of England and Wales; LLMUniversity College LondonLondonUK

Personalised recommendations