Governing the Society of Competition

Cycling, Doping and the Law

Martin Hardie

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509944682
• eBook ISBN: 9781509936571
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

This book considers the manner in which the making and implementation of law and governance is changing in the global context. It explores this through a study of the deployment of the global anti-doping apparatus including the World Anti-Doping Code and its institutions with specific reference to professional cycling, a sport that has been at the forefront of some of the most famous doping cases and controversies in recent years. Critically, it argues that the changes to law and governance are not restricted to sport and anti-doping, but are actually inherent in broader processes associated with neoliberalism and social and behavioural surveillance and affect all aspects of society and its political institutions. The author engages with concepts and arguments in contemporary social theory, including: Dardot and Laval on neoliberalism; Agamben on sovereignty; Hardt and Negri on globalisation; and others including Foucault, Deleuze and Guattari, and Louis Dumont. The work seeks to answer a question posed by both Foucault and Agamben; that is, given the growing primacy of the arts of government, what is the juridical form and theory of sovereignty that is able to sustain and found this primacy? It is argued that this question can be understood by reference to the shift from a social or public contract that was understood to be the foundation of society, to a society that is constituted by consent, private agreement and contract. In addition, the book examines the juridical concepts of the rule of law and sovereignty. Commencing with the Festina scandal of 1998, the Spanish case of Operación Puerto and concluding with the fall from grace of the American cyclist Lance Armstrong in 2012, the principal processes examined include: - The increasing crossing of the borders between different legal regimes (whether supranational or simply particularised) and with it the erosion of what we knew as state sovereignty and constitutionalism; - The increasing use of judgment achieved through the media and how this arrives at new configurations of moral panic and scapegoating; - The creation of a need for rapid outcomes at the expense of the modernist value or version of the rule of law; - The increasing use of new and alternative methods of guilt, proof and ultra-legal detection.

1

Introduction

The Armstrong Era – Cycling in the Age of Empire

In terms of professional cycling, the underlying thesis here is that the changes which have occurred in pro-cycling and the problematisation of doping in pro-cycling cannot be properly understood without considering the broader processes at play within what is generally glossed as ‘globalisation’.¹

To flesh that claim out a bit, we can say that the Armstrong Era was in many ways the ultimate vehicle for the globalisation of cycling. That process had sown its seeds back in the 1980s with the beginning of an increasing Anglophone presence within the peloton.² Despite the ultimate revelations concerning the Texan’s doping (see the Epilogue), there is no doubt that his presence played its part in the breaking down of the old European bases of the sport. In fact, following his fall from grace, the ‘voice of cycling’ Phil Liggett sought to excuse him on the basis that he was responsible for cycling’s global growth.³ His success was the success upon which the sport spread and ‘grew’ throughout the Anglophone world; from Johannesburg to Central Park the new cycling fans inevitably rode a Trek bike (his sponsor’s brand) and more significantly, always dressed with an amulet of yellow.

The Armstrong Effect was this globalisation. From 1999 onwards the sport was marked by rapid economic growth in the new cycling world, particularly in the US, Australia, Britain and South Africa, along with a host of other new and emerging markets. Armstrong’s success was central to this breaking down of cycling’s European roots and it followed the years of individual Anglo-American riders undertaking the solitary task of breaking into the European peloton. Finally, the tables were starting to turn in respect of Anglo presence. Not only was the composition and the language of the professional peloton changing, now the sport’s patron was, for the first time, no longer a European. Along with that, for the first time, its fans began to loudly speak in (American) English.

We will return to Armstrong and his place in this story at the end of this work. Within this new world order of cycling, brought into existence by its redemption through the miracle of his victory over both cancer and the power of old Europe, certain nations began to be characterised as being more doping-prone or doping-friendly than others. The championing of Armstrong and the coincidence of various forces within the sport that rode on his back into these cycling greenfields was, at the same time, accompanied by a deepening suspicion and demonisation of the old cycling world. A decade before the European economic crisis, the same logic that was later deployed against the PIGS (Portugal Italy Greece and Spain), was deployed against the customs and traditions of the old cycling world; in particular Spain and Italy. Just as the European economic crisis pits lazy Latins against hard-working Anglos and Northern Europeans, this same logic played out during the Armstrong Era in respect of professional cycling and doping. At the same time, this distinction between good and bad Europe is an old theme, as Dumont notes over ‘the course of centuries, the (social) Good was also relativized. … “Truth this side of the Pyrenees, error beyond” noted Pascal …’.⁴ Nevertheless, throughout the Armstrong Era (ie from 1999–2013) the popular myth sustained was that Anglo and Northern European riders were generally touted as being clean, good and culturally appropriate, whereas they were opposed and contrasted to the southern European and Latin riders, who were regarded as (naturally) prone to cheating, dirty and hence culturally inappropriate.

This new age saw the coming of a good Anglo rider, who had overcome the greatest of all battles (against cancer); his own personal rebirth was followed by the sport’s rebirth and with it came the fulfilment of the sport’s globalisation. Importantly for our task, in the process of globalising the sport itself, and because of its entanglement with the legacy of Festina and the emerging global anti-doping apparatus, cycling found itself bound up with a new form of law that came into being as a part of the wider process of globalisation. The law began to loom large over cycling, but the manner in which it operated, was deployed or applied, tended to suggest a new manner of it being done – a manner of doing law that signified a break with its modernist past. As we will see, it is this break that is so troubling to some anti-doping scholars.

Operación Puerto (see Chapter 2) provides us with the stepping off point for our focus and analysis. There was, however, during the Armstrong Era a fundamental contradiction at work in the manner in which anti-doping was carried out in professional cycling which Puerto helps illuminate. On the one hand, the Armstrong Conspiracy has described to us the networks of power and protection that operated to sustain the Armstrong Effect. On the other hand, others were sacrificed on the altar of anti-doping to ensure that the public pretence of the war on doping was being carried out with its full force. It appeared throughout this era that the deployment of the anti-doping apparatus did not treat all equally and fairly on a level playing field. Was it for the simple reason that some were more equal and more valuable to economic ends than others?

A Note on Terminology

Before proceeding, it is useful to provide some clarity to the development of this thesis by defining some key terms with which we will seek to analyse the problematisation of doping in cycling and its relationship to wider processes of globalisation. In this work, the term Government (with a capital G or the Government) is used to refer to the State institution of the Government recognised by classical liberal democratic theory as encompassing its three branches the Executive, Legislature and the Judiciary. Having said that, as will become apparent when we move to consider Law and administration (see Chapter 3) the State primarily carries out its activity of government through its first branch of the Executive. In this way the primary face of the Government can be seen as the exercise of Executive power through the activity of administration and policing. It is important to note, even at this stage, that the administrative and policing activities of the institution of Government are something quite different to the production of what we might call sovereign law. As will become apparent, administrative and police power focuses upon individual applications of power in the way that the law does not. To borrow from Agamben we can say that the bureaucrats – the angels and ministers of the sovereign and not the sovereign himself – carry out the administration.

The Legislative arm of Government in classical liberal democratic theory is responsible for the production of Law, or at least Legislation. Better put, the Legislative arm prepares the Law as in the end it is brought into being by sovereign will, for example by the sovereign, whether elected or not, giving their assent to the Law’s being. Thus Law (with a capital L⁵) will be used to refer to the rules of general application and conduct, whether produced by the Legislature or the Common Law, and assented to by the sovereign, which establish a class of circumstances, things and people to which the rule or 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.⁶ Law does not look to the future in what it judges, but to past events. Law does not seek to guide or conduct future conduct but only to decide past events.

The terms government, governance and governmentality (without a capital G) refer not to the institution of the State but, following Foucault, the idea of government as an activity rather than an institution.⁷ My purpose here is not to engage in any post-Foucauldian debate concerning the demarcation and differences between, for example, the terms governance, governmentality, discipline, security, control or biopower (see, eg, in Chapter 4) but rather to point to the manner in which all of these terms describe activities, including regulatory, administrative and policing activities, that encompass institutions beyond the State institution of the Government. These activities of government are, in fact, carried out by a myriad or network of private and public institutions and actors, including the governed themselves. The activity of government is as such something greater and more wide ranging than the institution of the Government.

‘Governmentality’ in the first place was said by Foucault to involve

the ensemble⁸ formed by institutions, procedures, analyses and reflections, calculations, and tactics that allow the exercise of this very specific, albeit, very complex, power that has the population as its target, political economy as its major form of knowledge, and apparatuses of security as its essential technical instrument.⁹

Secondly, he understood governmentality as a tendency for the type of power he called government to take precedence over all over forms of power such as State sovereignty or the techniques of discipline. This tendency involves the development of specific governmental apparatuses and with them their specific knowledge. Finally, he understood it as the process of the legal State becoming the administrative State. Foucault’s sovereignty typical of the State points us, of course, to specific and various apparati of administration beyond the State.¹⁰ That is to an administrative hierarchy or State that exists and operates through and beyond the State.

Importantly for our work, Agamben has described the relationship between the etymology of the word economy and that of government. For Agamben governing involves looking after something and acquires the meaning of providing for the needs of life, nourishing.¹¹ The genesis of the term economy, Oikonomia refers to the administration of the house – something distinguished by Aristotle from politics – the polis and (democratic) politics is opposed to the economy of the house and despots. The house in this context is not that of the nuclear family, but ‘a complex organism composed of heterogeneous relations, entwined with each other’.¹² Economic relations in this sense are linked by a paradigm that we could define as ‘Administrative’ [‘gestionale’], and not epistemic: in other words, it is a matter of activity that is not bound to a system of rules … but to a certain way of being … This activity rather implies decisions and orders that cope with problems that are each time specific and concern the functional order (taxis) of the different parts of the oikos.¹³

Agamben cites Xenophon who compared the house with an army and a ship where the administrator ‘… knows each particular section so exactly, that he can tell even when away where everything is kept and how much there is of it’. Administration in this sense entails an ability to know the whereabouts of the things that are sought to be controlled so that they may be kept in an ‘ordered arrangement’.¹⁴

Administration is a ‘functional organization’ that is a force that (following the Stoics interpretation) ‘regulates and governs the whole from the inside’.¹⁵ It is here with this idea of governing the whole from the inside that we begin to encounter what we might call the internalisation of government. As Dadot and Laval put it, to govern is not to govern against liberty, or despite it: it is to govern through liberty; that is, to actively exploit the freedom allowed to individuals so that they end up conforming to certain norms of their own accord.¹⁶ Or, as I have written elsewhere, citing ...

Table of contents

• Cover
• Dedication
• Title Page
• Table of Contents
• Prologue: Before and after Festina
• 1. Introduction
• 2. Operación Puerto – It’s not about the Blood
• 3. Form(s) of Law
• 4. A Global Apparatus of Control
• 5. The Society of Competition
• Excursus: Competition, Jouissance and the Non-language of Sport
• 6. Conclusion
• Epilogue
• Bibliography
• Index
• Copyright Page