Horses socially constructed as ‘non-human athletes’: Consequences for anti-doping and other sports regulatory matters

This paper discusses socio-legal research which was carried out as part of a doctoral thesis nearing completion entitled ‘Horses for Courses’: An analysis of equine sports regulation and disciplinary procedures regarding the non-human athlete’. The central research question is ‘whether the regulation, disciplinary procedures and rights of appeal in equine sports satisfy the requirements of ‘due process’, ‘human rights’ and ‘natural justice’. This work inter alia required a re-examination of the social construction of the horse in sports and with regard to popular culture. It is this aspect of the research that this paper concentrates on, not detailed legal arguments. Doping and prohibited medication control in sports involving horses is continuing to prove problematic. Morally innocent competitors and owners, up to and including Her Majesty the Queen of England, continue to be stripped of winnings and awards. In terms of those intending to use unlawful PEDs only ‘dopy dopers’ are being caught with the more sophisticated cheating escaping detection. Some of the reasons for these problems stem from sports regulation failing to keep up with current social constructions of the horse. The central tenets of regulation regimes like those based on the WADA Code are strict liability and reverse burdens of proof, these in turn are rooted in the concept of human autonomy and the athlete being responsible for everything that enters the body. This paper seeks to demonstrate that the sport horse is now constructed as a non-human athlete and therefore this type of regulation is not effective or suitable.
The arguments explored in this paper include but are not limited to the fact that the horse is no longer a bulk source of power for industry, agriculture, or warfare but nevertheless contributes to the UK leisure economy to the tune of £7bn annually before the betting industry is even considered. Further, in terms of its importance as a cultural icon it is still a key feature in art, sport, advertising, media coverage and fashion. This paper goes further still and postulates that the social construct has evolved to that of athlete-celebrity and therefore sports involving horses are unique in that they involve teams of human and non-human (non-autonomous) athletes. In particular, this paper considers the Olympic equestrian sports and horse racing as examples to demonstrate how inequitable the use of Code derived regulation is. 'Repugnance' is not too strong a word to describe the resulting tribunal decisions and this paper proposes an alternative regime of sports governance for equines which embraces mainland European legal philosophy more than it does that found in Anglo-American legal systems.