2 Sports autonomy (integrality and uniqueness)

The economic value of the sports sector, as well as its important educational, public health, social, cultural and recreational functions, has led to the emergence of a new field of law – Sports law – lex sportiva – that is understood as encompassing all those principles that have emerged from interactions between the sporting regulations – i.e. the association statutes on the one hand and the state legal systems on the other hand – and that have then been specified by the case law of the sports arbitration courts (Heermann Reference Heermann2022, p. 52). Although the issue of whether or not sports law constitutes a substantive area of law is still up for discussion (Weistart and Lowell Reference Weistart and Lowell1979; Gardiner et al Reference Gardiner, Welch, Boyes and Naidoo1998, p. 74; Shropshire Reference Shropshire1998; Davis Reference Davis, Siekmann and Soek2012; Foster Reference Foster2016), sports law does seem to be a widely accepted legal term, especially in the European Union, where various multicentric legal systems pervade each other and where dependencies among different branches of legal fields and legal centres seem to be obvious (with reference to multicentric legal systems; see Łętowska Reference Łętowska2005; Kustra Reference Kustra2006; Kalisz Reference Kalisz2007; Lubelska-Sazanów Reference Lubelska-Sazanów2021). Leaving aside the issue of whether or not sports law constitutes a substantive area of law, there are the main principles of every individual sport. Most of them have foundations in the rulings of the Court of Arbitration for Sport (CAS),Footnote ² whose function – according to some representatives of the doctrine – is not only to interpret the legislative codes of sports federations but also to select the best examples and to create a set of harmonised ‘best practice’ standards (Foster Reference Foster2016; AEK Athens & SK Slavia Prague v. Union of European Football Associations 1999). Kaiser (Reference Kaiser2011) names some of the sporting principles (the competition and performance principle, the principle of equality, the fairness principle, the self-protection principle, the principle of the orderly and smooth running of sporting competitions, the principle of determining correct competition results, the principle of the integrity of athletic competitions, the principle of national identification, the principle of sports promotion and the principle of sanctioning sports injuries) while also emphasising that the presented list is an incomplete one (Kaiser Reference Kaiser2011, pp. 33–91).

Even if the scope of dependencies of the allegedly independent field of sports law and other branches of law is understood differently in different legal systems, the EU is now dealing with the legitimisation of sport considering that the meaning of sport is no longer a ‘legalfree paradise’ (Wax Reference Wax2009). In 2012, Beloff stated that one of the key objectives of lex sportiva is to immunise sport from the reach of the law by creating a field of autonomy within which even appellate sports tribunals should not trespass, calling this a paradox (Beloff Reference Beloff, Siekmann and Soek2012). At the same time, he admitted that sports law recognises subsidiarity (Grayson Reference Grayson2000; McLaren Reference McLaren2001; Lewis and Taylor Reference Lewis and Taylor2003; Donellan Reference Donellan2010; Beloff Reference Beloff, Siekmann and Soek2012). The discussion of whether a specific field of law can be named Sports Law or not is still ongoing. However, since then, it has become obvious that any subsidiarity is not infinite. Thus, as different legal systems and areas of law are not lost, lone ships, sports law also needs to have boundaries. These boundaries may be observed in the full spectrum at the border between sports law and EU law, especially in the rulings of the Court of Justice of the European Union (ECJ).Footnote ³ Although the term ‘European sports law’ was allegedly used for the first time in 1989 (Hoerster), its global usage has been widely acknowledged since the Bosman Footnote ⁴ ruling in 1995 (Weatherill Reference Weatherill and Weatherill2014). As a result, different EU laws apply to sport in Europe, in particular the EU free movement law and competition law – just as they do to all other economic activities in the EU. Although this has theoretically been the case since the original Treaties entered into force in the 1950s, in 2009 – after the Treaty of Lisbon (Treaty of Lisbon 2007) – it was formally confirmed that sport is not independent of EU law. According to Article 165 of the Treaty on the Functioning of the EU (TFEU), ‘Union action shall be aimed at (…) developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen’, and according to Article 6 TFEU, ‘The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (…) education, vocational training, youth and sport.’ Although the indispensable co-existence of CAS and ECJ first became clear after the Treaty of Lisbon, Weatherhill sees the brand of ‘EU sports law’ as emerging already at the moment when the EU free movement and competition law started to be applied to sport (Weatherill Reference Weatherill, Siekmann and Soek2012). Nevertheless, since 2009, sport fell under the significantly broader impact of EU law, through adding new formulas regarding sport in Articles 6 and 165 TFEU.

Hence, although subject to EU law, sport has managed to retain a special status. This means that sport is not merely an industry like any other. Since 2009, the EU began to shape its own distinctive sports law, deciding whether an issue lies within the specialised subject of sport or falls under the scope of EU law, for example, where there is a need to control obstacles to cross-border trade, anti-competitive practices and discriminatory practices (Weatherill Reference Weatherill, Siekmann and Soek2012). The economic aspect of the sports industry, taken together with its educational, public health, social, cultural and recreational functions, as proudly underlined by the EU Commission (European Commission 2007), led to a situation in which states around the world allowed legal disputes involving sporting matters to escape from its jurisdiction, leaving it (in the end, partially – as is explained below) in the power of sport associations and their own rules, i.e. in this case to CAS (Heermann Reference Heermann2022, pp. 54–58).

If one takes a look at the ECJ rulings referring to sports law, the most spectacular of them refer to the foundations of the EU, i.e. to the three freedoms expressed in the TFEU: freedom of movement for workers, freedom of establishment and freedom to provide services, or competition. These principles constitute the main factor for the EU to step into sport’s autonomy and take over sports-related disputes, making it the subject of an ECJ ruling. Most of the ECJ rulings involving sports law refer to cases of discrimination connected with an abuse of one of these three EU freedoms. Their importance has been stated very clearly in the Meca-Medina case of 2006: ‘If the sporting activity in question falls within the scope of the Treaty, the rules which govern that activity must satisfy the requirements of the Treaty “which, in particular, seek to ensure freedom of movement for workers, freedom of establishment, freedom to provide services, or competition”’ (David Meca-Medina and Igor Majcen v. Commission of the European Communities 2006).

The EU, however, does not seem to be consistent in one case of discrimination: according to the Fédération Equestre Internationale (FEI, the world governing body for Jumping, Dressage & Para Dressage; Eventing; Driving & Para Driving; Endurance and Vaulting) ‘Equestrian sport is a unique case of a sport that involves animal and human athletes working together as a team.’ Still, the ECJ has never challenged the ethical foundations of the internal rules given by the FEI itself. The ethics of the FEI’s rules and principles (FEI General Rules and Principles 2023) might, however, be questioned if we considered it a case of discrimination in that only one of the team members (namely, the animal one) can be beaten with a whip – up to three times in a row (FEI Jumping Rules 2023, Art. 243, Par. 2.2) or six to seven times during a race (British Horse Racing 2023) and the other member not at all (Herlin-Karnell Reference Herlin-Karnell2013). It is interesting to learn that ethical cases involving animal welfare in connection with equestrian sport have never been a subject of interest of the EU institutions. This is despite the fact that animal welfare has been named as one of the EU’s objectives in the Treaty of Lisbon by adding Article 13 to the TFEU: ‘In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals(…).’

Because sport organisations set their own rules and codes of conduct based on the autonomy of each sport, the FEI is entitled to consider a horse as an athlete (FEI 2016; Al Eid v. FEI and Sharbatly v. FEI 2012), and if this is the case, then Article 165 TFEU (the EU’s aim to protect the physical and moral integrity of sportsmen and sportswomen) should also apply to horses. This view may also be justified with the respective applicability of the provisions of law. This means that provisions referring to athletes can be applied directly, with modifications, or do not have to be applied at all to horses – depending on the content of a certain rule. The respective applicability of the provisions of law is a tool that is widely used in the private law doctrine, especially with reference to animals and their dereification (Lubelska-Sazanów Reference Lubelska-Sazanów2020; Pietrzykowski Reference Pietrzykowski2023, p. 102 ff).Footnote ⁵ Unfortunately, the FEI does not seem to be consistent in its general message or its rules.

3 Animal welfare and horses’ welfare – legal foundations

In order to examine the legal standards for horses’ welfare, it is important to look at this issue using the same levels as professional sport rivalry takes place, namely, at the international (global) level, the European level and the local state level.Footnote ⁶

To answer what it means for an animal to be in a good state of welfare on a global scale (i.e. in the field of International Law), it is necessary to look at the works of the World Organisation for Animal Health (OIE) and the Farm Animal Welfare Council. According to the OIE, which calls itself ‘an intergovernmental organisation responsible for improving animal health worldwide’, an animal is in a good state of welfare when it is healthy, comfortable, well nourished, safe, able to express innate behaviour, and without suffering from unpleasant states such as pain, fear and distress (OIE 2019, Art. 7.1.1.). According to the Farm Animal Welfare Council, ‘welfare’ includes freedom from thirst, hunger and malnutrition; freedom from discomfort; freedom from pain, injury, disease; freedom to express normal patterns of behaviour and freedom from fear and distress (Brambell Committee Reference Committee1965). Moreover, according to Fraser, these five freedoms can be incorporated into a tri-dimensional vision of animal welfare that considers naturalness (normal behaviour), healthy physical and emotional (or psychological) conditions and well-being (Fraser et al Reference Fraser, Weary, Pajor and Milligan1997). In the last few decades, a variety of laws have regulated several aspects of the welfare of domestic animals used for various purposes. Legislation about horses, however, deals primarily with (a) transport, (b) veterinary medicinal products, (c) identification and (d) maltreatment (Passantino et al Reference Passantino, Giannetto, Passantino and Piccione2015).

Almost every EU Member State contains a provision of law stating that ‘animals are not things’, although this certainly does not resolve the whole legal problem of their position in civil law. There is thus a certain tension here because while animals are not considered things, the provisions referring to things apply to animals respectively.Footnote ⁷ So animals are left in an uncertain limbo between legal entities and things – not quite one or the other. Hence, from Roman times, the law traditionally distinguished between persons and the things they may possess, own and exchange. Today, animal welfare laws constitute a new reality of the European laws concerning animals, and they do rely on the concept of the so-called ‘dereification’ (Le Bot Reference Le Bot2011) connected with a growing tendency to grant more rights to animals, although usually limiting those rights to certain types of animals, defined by the purpose for which they serve humans. Some EU Member States, such as Spain or the Netherlands, are very progressive in broadening the scope of animal rights (though granting more rights to certain kinds of animals – pets in the case of Spain and farm animals in the case of the Netherlands). For example, the recently amended Article 2.1. of the Dutch Animal Protection Act sets out that ‘animals will no longer be adapted to the system, but the system will be adapted to the needs of animals’ (Dutch Animal Protection Act Amendment 2021).Footnote ⁸ After a complex adoption of this article by the Dutch legal system, it will no longer be allowed to hurt or to harm an animal with the aim of housing it in a certain way. This means that farm animals will (at least in theory) be kept and used for human purposes only if they enjoy living conditions that are as close as possible to their natural way of living. In Spain, on the other hand, a significantly broad protection of animals refers to companion animals. Hence, beginning from 5 January 2022, pets are legally members of the family (Spanish law on the legal status of animals 2021). This means, that – according to Spanish law – pets are no longer considered as 'things' but as sentient beings that may be considered part of a human-animal interspecies family. As a result, the pet’s fate after the owner’s death has to be set out in the owner’s last will; otherwise, the court has to decide who will be the pet’s owner; the same applies to divorce rulings.

Even in those EU Member States whose laws do not follow the progressive tendences of extending the scope of animal rights that are gaining popularity in Europe, the problem of changing the legal status of animals is often resolved by the judiciary. For example, in Poland, the courts are continuously facing the problem of shared custody between former spouses (Judgment of the Polish District Court in Opole Lubelskie 2020) and commonly uses the construction of personal rights to grant damages for breaking the bond with a beloved companion animal, disregarding the damages in terms of the costs of the animal’s market value or the cost of its medication.

The dereification trend did not, however, resolve the problem of animal exploitation. Although the legal position of animals might have improved slightly, their status remains blurred, hovering somewhere between things and natural persons. Hence, even though animals are no longer formally ‘things’ (at least in the legal systems of the EU Member States), they are still being used worldwide as tools or products – kept for slaughter and the production of other animal-derived products or for equestrian sports. At this point, the reader should pause for a moment to ask themselves whether there is really that huge of a difference between animal slaughter and the use of horses in sport and why animal abuse should be defined differently with reference to animals used in sporting competitions than with reference to farm or companion animals. In order to answer these questions, it is necessary to examine the history of EU animal law with its historical step for animals in 2007, made by the introduction of the Treaty of Lisbon (Treaty of Lisbon 2007). To be more specific, the basis of granting more rights to animals is Article 13 Consolidated version of the Treaty on the Functioning of the EU (TEFU) of the Treaty on Functioning of the EU (TFEU 2012), which was introduced with the Treaty of Lisbon. This article states directly that ‘animals are sentient beings and therefore the EU and Member States shall pay full regard to the welfare requirements of animals’. The introduction of the idea of animal sentience to EU primary law constituted a significant change in the legal status of animals in the EU, by being the first ideological step that was supposed to bring factual changes in the future. Namely, by signing the treaty, the EU Member States agreed not only to set out an explicit competence to the European Union, including nature conservation,Footnote ⁹ but also to introduce the recognition of animals as sentient beings. However, the problem caused by introducing Article 13 to the TFEU is that its protection is rather ideological and not really practical. In fact, Article 13 excludes major groups of animals from this protective shield. One of the reasons is the institution of explicit exemptions from acknowledging that ‘animals are sentient beings’ and that EU Member States ‘shall pay full regard to the welfare requirements of animals’ by obliging the EU to ‘respect the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’.Footnote ¹⁰

This means that animals used in shows or competitions are excluded from the protection shield given to animals as ‘sentient beings’ in Article 13 TFEU for two reasons. Firstly, it is simply the fact this provision ‘does not constitute a legal base for the EU to act on animal welfare’ (Simonin and Gavinelli Reference Simonin, Gavinelli, Hild and Schweitzer2019). Even if one tried to view it as such, using animals in sport shows or bullfighting would probably fall within the scope of exemptions set out in Article 13 TFEU that refer to ‘provisions and customs of the Member States (due to the autonomy of sport law), as well as referring to cultural traditions and regional heritage (since sport – especially in case of Olympic sport disciplines – is strongly connected with cultural traditions not only of the EU Member States, but on the global scale)’. Secondly, animal protection in general is not linked to any of the defined EU policy, ‘which are agriculture, fisheries, transport, internal market, research and technological development and space policies’. In fact, using animals in shows or competitions does not fall within this scope. From international and EU law perspectives, competition horses seem to be in an ignored realm.

Some countries do have guidelines regarding horses’ welfare – the United Kingdom, in particular, is a country in which equines are used primarily for sport and recreation, and their needs are clearly explained in the Code of Practice for the welfare of horses, ponies, donkeys and their hybrids (British Horse Council 2017). This Code requires horse owners and keepers to ensure that their horses’ needs to express their normal behaviours are met. The UK Animal Welfare Act (2006) suggests additionally that ‘all stabled horses, apart from those on box rest for veterinary reasons, will benefit from daily turnout’. The Act requires that all horses, ponies, donkeys and mules have a suitable environment to live in, have a healthy diet, can behave appropriately for their species, have appropriate company and are protected from pain, suffering, injury and disease. On the basis of these concepts, the equine industry has launched a health and welfare strategy for horses to advise people on the correct treatment of the animals (Passantino et al Reference Passantino, Giannetto, Passantino and Piccione2015). In Switzerland, the Animal Welfare Ordinance (Swiss Animal Protection Ordinance 2008) in its Article 61 dictates that working horses (those ridden or working regularly) must be allowed free time in open outdoor areas at least two days a week, for at least two hours each time. Non-working horses (e.g. retired horses or broodmares) must have at least two hours of outdoor free time every day. Young horses (up to two and a half years old) must be kept in groups. Danish legislation (Danish Act on the keeping of horses 2014) dictates that all horses have a minimum of two hours in a paddock or ‘other exercise’ every day. Paddocks should have free-choice shelter from weather, sun and insects and have compatible companions. Nevertheless, whereas national guidelines requiring minimum standards of horses’ welfare to be positively evaluated, duplicated and expanded to other legislations on a national level (especially when there are no EU or international law means to address these issues), they may not address issues connected with the use of horses in sport because of the sport autonomy principle.

The problem of using animals in sport has many aspects and is very complex. On the one hand, horses’ status seems to be similar to that of pets, while on the other hand, horses are animals used as tools or products; the border between those two statuses in equestrian sports can be very blurred. This means that sport horses competing at a high levels are perceived to have poor welfare in terms of psychological health (e.g. social isolation) but good welfare in terms of physical health, nutrition and horsemanship (Furtado et al Reference Furtado, Preshaw, Hockenhull, Wathan, Douglas, Horseman, Smith, Pollard, Pinchbeck, Rogers and Hall2021). Only equestrians know how much a successful rider values the horse that helps them achieve the most prestigious titles. However, the human concept of ‘loving’ a horse and the presumption that a horse is ‘happy’ (by using human perception filters and by mentally attributing these emotions to horses themselves) is misguided. The fact that a horse has his own massage therapist, his own dietitian and his ‘own human’ – despite costing the owner a lot of time, devotion and money – does not really serve the horse’s natural needs. A suitable definition of ‘animal welfare’ must refer to the intrinsic characteristics of the animal rather than to something attributed by humans (Passantino et al Reference Passantino, Giannetto, Passantino and Piccione2015). Thus, studying specific human-animal relationships requires integrating multiple methods and drawing on sociology and ethology (Franklin et al Reference Franklin, Emmison, Haraway and Travers2007; Birke and Hockenhull Reference Birke and Hockenhull2015), and the human sensation of happiness cannot simply be applied to horses, whose natural conditions of living are being outside in nature with his herd (which is just the opposite of being kept in a stable for 20 to 23 hours a day; Equine Ethics and Wellbeing Commission 2022).Footnote ¹¹ There are several studies that have confirmed a direct link between being stabled and developing abnormal (stereotypic) behaviours in horses (Cooper and Mason Reference Cooper and Mason1998; Henderson Reference Henderson2007; Burger et al Reference Burger, Baumgartner, Bachmann and Poncet2008; Benhajali et al Reference Benhajali, Richard-Yris, Ezzaouia, Charfi and Hausberger2009; Minero and Canali Reference Minero and Canali2009; Keeling et al Reference Keeling, Hartmann and Søndergaard2012; Tadich et al Reference Tadich, Smulders, Araya and Nicol2012; Campbell Reference Campbell2021), as well as a higher risk of developing stomach ulcers (Andrews et al Reference Andrews, Larson and Harris2017).

4 Animal welfare and horses’ welfare – the FEI perspective

In addition to the rules under the three layers of law (international law, EU law and state law), a competition horse in the EU is subject to the rules coming under the laws of the relevant sport, which basically includes the set of rules established by the FEI and in the jurisprudence of CAS.

Regarding competition horses, their living conditions might be the least stressful thing that they have to face. Thus, the most troubling aspect is the way in which these horses are trained and used by a substantial number of riders. The way in which young equestrians are taught by their trainers and the way in which the young riders train their horses constitute equestrian reality. When a controversial method of training is frequently used in one’s environment, that method becomes the norm and then becomes one of the ingrained equestrian training methods. This includes such dubious practices as horse rapping,Footnote ¹² horse soring,Footnote ¹³ rollkurFootnote ¹⁴ and abuse with the use of spurs, whips or even electric shocks. All of these methods constitute a clear abuse of the horse, according to Article 142 of the FEI General Rules and Article 243 of the FEI Jumping Rules, whereas the provision prohibiting animal abuse remains open for additions, although currently, abuse with the use of spurs, whips or electric shocks, as well as horse rapping, are expressly prohibited. This complies with the general coverage of the FEI, which emphasizes that the welfare of the horse must be paramount and never subordinated to competitive or commercial influence (Federation Equestre Internationale 2013). However, what fails in this code is the same thing that applies to most of the suffering caused to animals in general: despite legal provisions prohibiting animal abuse, there is a lack of enforcement mechanisms (Lubelska-Sazanów Reference Lubelska-Sazanów2021, Reference Lubelska-Sazanów2022).Footnote ¹⁵ Thus, equestrians are unlikely to use prohibited training methods in front of judges representing an institution associated with FEI.Footnote ¹⁶ However, before horses start to compete, and many years before they achieve impressive sporting results, they have thousands of daily training sessions that take place neither in front of the judges designated by the FEI nor in front of the public. The latest survey report on equine ethics and well-beingFootnote ¹⁷ by the FEI independent commission (Equine Ethics and Wellbeing Commission 2022) reveals insights into the concerns of equestrian sport stakeholders along with their views regarding the well-being of horses in equestrian sports. In order to receive measurable and independent results, the survey was anonymous and consisted of 11 questions addressing various topics relevant to the welfare of horses used in sport. The participants, although acknowledging that the FEI rule books clearly state that the welfare of the horse must be paramount, admitted that there is currently no means of assessing or enforcing the proper treatment of horses and that there is a visible conflict between those trying to protect the welfare of horses and other stakeholders (Furtado et al Reference Furtado, Preshaw, Hockenhull, Wathan, Douglas, Horseman, Smith, Pollard, Pinchbeck, Rogers and Hall2021). According to the survey, 75 percent of respondents had concerns about the welfare of horses used in sport. The highest percentages of concerns were noted in two groups not part of the FEI pyramid: veterinary doctors (87%) and leisure riders (84%). The reason that the highest percentages came from stakeholders not deriving direct profits from horse competitions and not competing personally might be their not considering all the methods of keeping and training horses in sport as ‘something normal’ – making it hardly surprising that people adjust to their own wrongdoing by adapting their own psychological mechanisms.

Slightly more comforting is the fact that ethics in equestrian sports are about to improve. The FEI itself is seeking to garner acceptance of the concept of a ‘social licence to operate’. It thus created the Equine Ethics and Wellbeing Commission, a move that was affirmed by respondents who said that ‘the concept of a “social licence to operate” provides an important opportunity to ensure that the ethics and practices of equestrian sport evolve’ (Furtado et al Reference Furtado, Preshaw, Hockenhull, Wathan, Douglas, Horseman, Smith, Pollard, Pinchbeck, Rogers and Hall2021; Equine Ethics and Wellbeing Commission 2022). The term ‘social licence to operate’ represents an intangible, implicit agreement between the public and an industry or group and constitutes a quasi-second layer of permission, in addition to the relevant laws that clearly regulate a certain activity or branch of industry that is granted (or revoked) by the public (Douglas et al Reference Douglas, Owers and Campbell2022). When a social licence is granted and society approves an activity, the activity can proceed with minimal formal restrictions. If it lacks public approval, then public pressure may lead to stricter legal restrictions or even an outright ban on the activity. MLH. Campbell, the author of numerous publications regarding ethics in equestrian sports, a member of the Equine Ethics and Wellbeing Commission and one of the assistant editors of Equine Veterinary Education Magazine, suggested eleven years ago that there are illustrative examples of regulatory reactions to public concerns about avoidable suffering in equestrian sports. Almost a decade later, the equestrian stakeholders have now confirmed that considerable progress has been made (Campbell Reference Campbell2013; Furtado et al Reference Furtado, Preshaw, Hockenhull, Wathan, Douglas, Horseman, Smith, Pollard, Pinchbeck, Rogers and Hall2021), although not much has changed between Campbell’s editorial article in 2013 and the Equine Ethics and Wellbeing Commission Survey Report in 2022. Examples cited by Campbell and in the Equine Ethics and Wellbeing Commission Survey Report include the tightening and increased enforcement of the rules surrounding the use of whips in racing in the UK and the FEI ban on hyperflexion in dressage (‘rollkur’) (Campbell Reference Campbell2013; Furtado et al Reference Furtado, Preshaw, Hockenhull, Wathan, Douglas, Horseman, Smith, Pollard, Pinchbeck, Rogers and Hall2021). However, using whips and spurs, as well as neglecting horses’ need for daily turnouts, are still issues of concern for sports horses. Regarding the ‘progressive’ rules of the British Horse Racing Authority, ‘(w)hips are carried first and foremost as an essential aid to horsemanship and safety; (t)his is consistent across all equine activities which involve exertion on the part of the horse’ and ‘(t)he use of the whip in British racing is restricted to safety and encouragement. By “encouragement” we mean using the whip as an aid to activate and focus the horse, so the horse realises its potential by giving its best’ (British Horce Racing 2023). What has been regulated in British racing is the number of times the whip can be used during a race (no more than six or seven times) and – theoretically (since it is impossible to measure and compare different uses of the whip by its force, solely with a judge’s eyes) – its force. With reference to the FEI General Regulations, the abuse of a horse consists only of ‘excessive’ beating or whipping of a horse. Having now a general idea of the reality of ethics in equestrian sports, it should not be surprising that three-quarters of equestrian sport stakeholders have concerns about the welfare of horses used in sport (Equine Ethics and Wellbeing Commission 2022). These three-quarters of equestrian sport stakeholders might, however, constitute motivation for the FEI to receive a ‘social licence’ in a new, modern and ethical way. I believe that the new rules regarding equestrianism should derive from public opinion and the works of the Equine Ethics and Wellbeing Commission, as well as from the mere instance of bringing such an administrative body to life, all of which constitute very good foundations for establishing ethical equestrianism in the future. Thus, it is the FEI’s responsibility to consider the horse’s welfare at the outset. Especially in the case of equestrian sport, the animal should be treated as an athlete that requires protection since ‘(e)questrian sport is a unique case of a sport that involves animal and human athletes working together as a team’ (FEI General Rules and Principles 2023). Therefore, taking into account the sport autonomy principle, the FEI is the only body responsible for introducing more protective rules regarding horses used in competitive sports. Although those rules should be established by the FEI, for economic reasons it is not in its interest to introduce more protective rules for horses in equestrian sport. Therefore, it is more likely to achieve this goal through the bottom-up approach (for which Equine Ethics and Wellbeing Commission’s works have aroused hopes).

5 Sports autonomy as justification for animal abuse

This part of the paper aims to discuss the rules regarding horses’ welfare and to look into the issues concerning the dependencies between the animal protection rules in EU law and individual EU Member State’s laws concerning equestrian sports. By EU law I mean, primarily, the values specified in the wording of Article 13 TFEU introduced by the Treaty of Lisbon as well as the secondary legislation of the EU (Council Regulation [EC] No. 1/Reference Łętowska2005 [1999]; Council Directive 98/58/EC [1998]; Council Directive 1999/22/EC [1999])Footnote ¹⁸ and the European Council (European Convention on the Protection of Animals Kept for Farming Purposes, 1976; European Convention for the Protection of Animals for Slaughter, 1979; European Convention for the Protection of Animals During International Transport [Revised], 2003; European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, 1986; European Convention for the Protection of Pet Animals, 1987),which is separate from the EU itself (Lubelska-Sazanów Reference Lubelska-Sazanów2020). Nevertheless, the EU’s law concerning animals – although it creates an important starting point for any animal welfare or animal rights considerations that take place from an EU Member State’s perspective – does not have much importance regarding sports law. Thus, the reason the sport requires autonomy from the law or, to be more precise, ‘functional autonomy within the law’ (Weatherill Reference Weatherill2017, p. 9) lies in the alleged ‘specific nature of sport’. The foundation of this specific nature lies in its important educational, public health, social, cultural and recreational functions as well as in its global character and the rules that are specific to a certain discipline of sport (Heermann Reference Heermann2022, pp. 50–51). These rules have to be unified within a certain organisation but – in order for them to operate in accordance with the fair play principle and to grant uncertainty of the result – are independent of politics and, therefore, are also functionally autonomous from the law (Heermann Reference Heermann2022, pp. 50–51).

The reason sports law and animal protectionFootnote ¹⁹ do not go well together is that their foundations, either on the European level or at the global level, do not overlap. This is because sports law has earned autonomy from the law, creating an autonomous (in most cases) set of rules referred to as lex sportiva.

In Europe, the boundaries of sports autonomy constitute the EC trade law – but only in its economic manifestations: most significantly, the provisions on the free movement of persons and services and the rules on competition. In addition to the economic aspects, the EC in general, and the Commission and the Court in particular, possess limited competence in the field of sport. The social and cultural functions of sport are established by the public authorities in the Member States together with sports federations (Weatherill Reference Weatherill and Weatherill2004). The ethical issues connected with equestrian sports instead constitute a specific issue that, from the point of view of sporting federations, requires autonomy and an understanding of their unique characteristics and reasoning. They also could possibly be understood as part of the culture of equestrian sports or by broadening the interpretation of the scope of EU competence in sport based in Articles 6 and 165 TFEU (which seems to be a vague argument, taking into account the current interpretation line of reasoning).

Legal intervention into the ethics of equestrian sports’ rules is also not possible on a global level for a very trivial reason – there are no legal acts covering animal protection on a global level (except for the CITES Convention, which is aimed at regulating trade).Footnote ²⁰ Hence, animal protection, not to mention issues of animal rights, is not currently regulated by a single, comprehensive international law instrument. The need for international animal rights has been expressed numerous times in the animal law doctrine (Cao and White Reference Cao and White2016; Peters Reference Peters2020) and justified mostly by globalisation. The industrialised methods of meat and dairy production (Lubelska-Sazanów Reference Lubelska-Sazanów2020; Peters Reference Peters2020), as well as the abuse of horses in sport, have become global problems.

As a result, the question arises: does equestrian sport – through its autonomy, monopoly and the pyramid nature of its independent institutions – constitute a general exemption to animal abuse, even when occurring in countries with strong animal protection law standards? In other words (taking any EU Member State as an example), does the fact that ‘rapping horses’, ‘excessive use of spurs’ or ‘use of a whip on a horse’s head’ are considered horse abuse in the meaning of the FEI rules mean that using spurs in general or using a whip twice in a row (but not on a horse’s head) does not constitute horse abuse in the meaning of animal welfare acts at a national level? In most EU Member States, a general ban on animal abuse is supplemented by a long and open-ended list of the particular types of conduct that are considered to be typical examples of animal abuse and are prohibited, e.g. in Germany (German Animal Protection Act 1972), Bulgaria, Austria (Austrian Animal Protection Act 2004) and Poland (Polish Animal Protection Act 1997). Although the wording of the German Animal Welfare Act corresponds to the fact that Germany is one of the pioneering countries in equestrian sport (Horse Competence Center Germany 2022) and refers directly to competing horses, the animal welfare acts in other European countries define rather general aspects of animal abuse. Still, this discrepancy does not constitute a key issue due to the fact that – whereas all legislations permit certain exemptions from what is considered to be animal abuse – horse riding would be excluded anyway based on a foundation of sports law (even if one would assume that any kind of horse riding could be considered animal abuse). What is clear is that keeping animals in improper conditions (i.e. without daily turnouts) and beating them with hard or sharp tools aimed at causing pain, as well as causing pain on the lower parts of the abdomen (as often occurs with whips and spurs), constitute both animal abuse and equestrian reality in many cases. However, whether the use of spurs or a whip constitutes animal abuse remains a grey zone. Hence, whereas these actions could be regarded as examples of animal abuse in accordance with open-ended lists of prohibited conducts that are identified as typical examples of animal abuse in national laws, sport law (which includes exemptions from conduct constituting animal abuse in the field of horse sport) defines only ‘excessive use of spurs’ or ‘use of a whip on a horse’s head’ as animal abuse. Therefore, the questions of whether an ‘excessive use of spurs’ and also whether using spurs or whips in general constitutes animal abuse in the case of recreational horse riding (which doesn’t fall within the scope of FEI rules), remain open. My aim is not to present equestrians in a dark light. The fact is, however, that it is impossible not to notice how blurred the border is between abusing animals and using horses in equestrian sport under the rules of the FEI.

Sadly, until an international animal protection law act emerges, there is no other path for legal institutions besides the FEI to interfere with sports autonomy. At the same time, one may wonder about the utility of treating ‘sport’ as a single phenomenon. Taking into account that in Germany alone, the total turnover of the horse industry is estimated at €6.7 billion (Deutsche Reiterliche Vereinigung 2024) it becomes questionable whether high-minded sporting values and anxieties to promote a healthy lifestyle, tolerance and respect for others have much to do with modern professional sport (Weatherill Reference Weatherill and Weatherill2004), especially when taking into account the generally high costs of being part of this sport, which requires a lot of money at the very beginning, resulting in its being considered a sport only for middle and upper social classes.

The only possibility of achieving better standards for horses’ well-being in equestrian sports is for the FEI itself to change in order to re-receive the ‘social licence’ mentioned earlier in this paper.