YUAN Gang* & KONG Weidu**

 

Abstract: Although China has formed a legal system for the protection of the rights and interests of persons with disabilities and a sports legal system, it cannot be concluded that the legal protection system of sports rights of persons with disabilities has been established. The basis of the legal protection of sports rights of persons with disabilities in China originates from a “bundle of basic rights” defined by the Constitution. The legal protection is characterized by diversified standards and norms, high levels of effectiveness and various contents of legislation. Compared with the right to rehabilitation, the right to employment, and the right to education, the legal protection of sports rights of persons with disabilities still faces the problems of unclear distribution of administrative supply responsibility and lack of corresponding judicial relief in the protection model of public-private partnership. To better realize the rights and interests of persons with disabilities and ensure the goal of “equality, participation, and sharing,” it is necessary to promote the equalization and diversification of legal protection for sports rights of persons with disabilities, so as to realize equal rights, all-round development, and social integration. For the purpose of improving the legal protection of sports rights of persons with disabilities, the principle of subsidiarity should be introduced into the protection model of public-private partnership, and administrative public interest litigation should be taken as a new channel to protect rights, to realize the coordinated development of mass sports, competitive sports, and the sports industry of persons with disabilities.

 

Keywords: persons with disabilities · paralympic games · sports rights · human rights

 

 

The white paper titled China’s Parasports: Progress and the Protection of Rights states that “Sports are important for all individuals, including those with a disability.”¹“Participation in sports is an important right of persons with disabilities as well as an integral component of human rights protection.”² It is also the first time that China has published a white paper on the development of sports for persons with disabilities. The Beijing 2022 Paralympic Winter Games has come to a successful conclusion. It marks China’s sixth appearance at the Winter Paralympics, with the largest delegation, the largest number of athletes and the most complete event. The Chinese delegation ranked first in both the gold count and overall medal count, achieving the best-ever results in China’s Winter Paralympic history. Compared with the vigorous development of parasports in China, the legal protection of rights of persons with disabilities is still based on meeting basic life needs, focuses on the rights to rehabilitation, employment, and education³, and pays insufficient attention to the sports rights of persons with disabilities. This still falls short of the main goal to achieve more substantial progress in the all-round development and common prosperity of persons with disabilities by 2035 put forward in the Protection and Development Plan for Persons with Disabilities during the 14th Five-Year Plan. Under the theme of high-quality development and common prosperity in the new era, based on the national condition of more than 85 million persons with disabilities, we need to focus on promoting the equalization and diversification of legal protection for sports rights of persons with disabilities in order to better realize the goal of “equality, participation and sharing” for persons with disabilities, drive common prosperity and promote the sports cause for persons with disabilities to a new level. Equalization is a legal basis and premise of realizing the sports rights of persons with disabilities, and it marks a transition from “formal equality” to “substantive equality.”Diversification refers to the diversified sports activities that persons with disabilities participate in and the multiple subjects of rights protection. The law protects the right of ordinary persons with disabilities to participate in physical fitness activities, the right of athletes with disabilities to participate in competitive sports, and the right of students in special education schools to participate in sports activities.⁴ It has become the core issue of the legal protection of sports rights of persons with disabilities in the new era to deal with the contradiction between the ever-growing needs of persons with disabilities for a better life and unbalanced and inadequate development based on the legal protection of sports rights of persons with disabilities.

 

At present, China has formed a legal system for the protection of rights and interests of persons with disabilities, with the Constitution of the People’s Republic of China (hereinafter referred to as the Constitution) at the core, the Law of the People’s Republic of China on the Protection of Persons with Disabilities as the backbone, the Regulation on the Education of Persons with Disabilities, the Regulations on Disability Prevention and Recovery of Persons with Disabilities, the Regulation on the Employment of Persons with Disabilities, and the Regulation on the Construction of Barrier-free Environments as important support.⁵ Besides, China has also basically formed a sports law system with the Sports Law of the People’s Republic of China(hereinafter referred to as the Sports Law) at the core, supplemented by relevant sports administration regulations, regulations and documents.⁶ Although the legal system for the protection of the rights and interests of persons with disabilities and the legal system for sports rights of persons with disabilities have basically been formed, it cannot be inferred that the rights of persons with disabilities are protected. On the one hand, although the legal system for the protection of the rights and interests of persons with disabilities and the system of sports laws and regulations have been formed, the legal protection of sports rights of persons with disabilities is not a simple superposition of the above legislation. On the other hand, the “legislation centrism” dominates the discourse of rights protection, but pure legislation itself will inevitably hinder the protection of rights, and the rise of the modern administrative state indicates that the protection of rights is increasingly affected by administrative issues, and that judicial organs as the last line of defense for fairness and justice must also respond to the demand of citizens for rights protection. In the face of the main social contradiction in China and the fundamental change in the foundation for the construction of the rule of law, the legal protection of sports rights of persons with disabilities should not be limited to legislative protection. Seeking an organic balance among administrative supply, judicial relief and legislative protection has become the realistic need for the protection of sports rights of persons with disabilities.

 

 

The research on sports rights of persons with disabilities in China began with the rise of the international movement for human rights of persons with disabilities, developed after the reaching of a consensus on the protection of sports rights through legislation, and shows the characteristics of developing from moral justification to normative-empirical analysis and justification of sports rights, internationally first and then at home, and proposing to build a complete legislative system to protect rights and interests. However, currently, relevant domestic studies either directly consider sports rights of persons with disabilities as basic rights⁷ or basic human rights,⁸ or take an evasive attitude. Even if there is a justification for sports rights of persons with disabilities, it simply applies the theory of human rights, only making sports rights in the name of human rights. “Right can never be higher than the economic structure of society and its cultural development conditioned thereby.”⁹ Although sports rights are based on human rights, the realization of human rights will eventually depend on the legislative protection of sovereign states, because “The state protection of human rights is the best mechanism of human rights protection.”¹⁰ The Constitution serves as the fundamental law of China’s legal system. Both the traditional department law and the new interdisciplinary jurisprudence take it as the foundation and develop their own logic of regulation on this basis, thus the definition of sports rights must return to the Constitution and seek Constitutional support.

 

 

It is generally believed in the field of sports law that sports rights are fundamental rights¹¹ or should be fundamental rights. The paths of justification can be divided into two categories. The first category regards sports rights as fundamental human rights or sports human rights, purely based on the documents of international human rights. The difference is that the former considers sports rights¹² as an extension of basic human rights in the field of sports, while the latter emphasizes sports human rights as an independent right. Although there are some cognitive differences between the two, they are basically based on international human rights documents. This approach of justification is reasonable and legitimate, but it does not solve the problem of the domestic legal attribute of sports rights. Because sports human rights are not necessarily legal rights, nor can we directly deduce the legal attribute of sports rights,¹³ let alone the exercise and realization of rights. The second category is the presumption of rights, a dual justification path based on the basic rights norms or other norms, and supported by the documents of international human rights. However, instead of focusing on the norms of basic rights, existing studies have taken Article 21(2) of the Constitution as the norm to be observed, because it is difficult to infer sports rights from a single norm of basic rights. However, Article 21(2) of the Constitution can hardly be used as a basis for the justification of sports rights. On the one hand, the general provisions of the Constitution must be different from the basic rights clauses, though they mutually reinforce each other in some sense. However, according to the dual attributes of basic rights, Article 21(2) is only a purely objective legal norm, from which individual subjective rights cannot be derived.¹⁴ In short, citizens do not have the right to demand the state to develop sports, especially not to demand the state to take certain measures.¹⁵ On the other hand, for the justification of sports rights, from the perspective of dogmatics, the real task is to interpret the sports rights in the Constitution according to the existing basic rights clauses.¹⁶ Therefore, the view to infer sports rights according to Article 21(2) of the Constitution remains open to debate. Although sports rights cannot be inferred from Article 21(2) of the Constitution, for the obligations specified by the state, the value of public law can be transformed into concrete laws by means of legislation in countries where the Constitution is not directlyapplicable, specifically reflected in the establishment of a legal system for sports rights protection by the state, while Article 21(2) is the basis of Article 1 of the Sports Law: “This Law is enacted in accordance with the Constitution.”¹⁷ It is undeniable that “in accordance with the Constitution” has been criticized, but after the change from “Law Committee” to “Constitution and Law Committee” in the amendment to the Constitution in 2018, the meaning has gradually changed from formal to substantive and normative.

 

Basic rights have dual attributes, but we cannot directly consider a right as a basic right by simply expounding its dual attributes. From the perspective of dogmatics, the justification of sports rights requires a systematic interpretation of the norms of basic rights, which also solves the difficulty in inferring sports rights based on the single norm of basic rights. This presumption of rights may be questioned, and the connotation of sports rights may be deemed all-encompassing. However, on the one hand, people usually have a broad understanding of the protection scope of basic rights, and avoid excluding matters that may fall within the confines of basic rights untimely, so as to ensure the maximum protection of basic rights.¹⁸ On the other hand, confining the basis of inferring sports rights to the limited norms of basic rights alleviates the above doubts to a certain extent. Certainly, any method of justification cannot be correct or scientific absolutely. A systematic interpretation means that sports rights are not subject to a single clause of basic rights, but to several clauses of basic rights. Specifically, first, in terms of the human dignity clause in Article 38 of the Constitution, it has a dual normative meaning. On the one hand, “The personal dignity of citizens of the People’s Republic of China shall not be violated” is a general regulation. On the other hand, “It is prohibited to use any means to insult, libel or falsely accuse citizens” is “an individual content of basic rights protection.”¹⁹ The personal dignity clause is closely related to human dignity. When the content of protection is closer to human nature, the clearer and more significant the protection will be. The protection of sports rights of persons with disabilities refers to the protection of individual subjectivity, identity interests and equal interests derived from human dignity. Second, in terms of the human rights clause in Article 33(3) of the Constitution, although a certain consensus has been reached on sports human rights, “The state shall respect and protect human rights” is too abstract to provide concrete guidance for the protection of sports rights. Therefore, it is necessary to combine specific basic rights. Lastly, in terms of Articles 46 and 47 of the Constitution, although we cannot infer the complete sports rights directly and purely based on the education clause, the connection between the clause and school sports cannot be denied. Meanwhile, Article 47 also includes “Citizens shall have the rights to engage in a variety of sports activities, entertainments and other cultural activities.”²⁰ It is worth noting that the view of relying solely on the right to health to justify sports rights remains open to discussion because “It is unreliable and unscientific to justify a basic right based on another basic right that has not yet been formally recognized in the Constitution.”²¹

 

Strictly speaking, sports rights of persons with disabilities are not a legal concept, but an academic concept, because there is no clear legislation about a special right of sports either in the legal system of rights and interests protection for persons with disabilities or in the legal system of sports. Even in the revised Sports Law of the People’s Republic of China in 2022, it is only stipulated that “Citizens shall equally enjoy the right to participate in sports activities according to the law.” To sum up, the sports rights of persons with disabilities systematically explained in Articles 33, 38, 46 and 47 of the Constitution are not the basic rights clearly defined in the Constitution, but a concept of legal dogmatics, a justification in Constitutional jurisprudence, which exist in the form of a “bundle of rights.”²² In this sense, the connotation of sports rights of persons with disabilities and the way to protect them should be included in the clauses of personal dignity, the right to education, and the right to culture and discussed separately. Besides, the sports rights of persons with disabilities as a “bundle of rights” have also made it possible to expand the connotation, especially in the era of digital sports.

 

 

Since the founding of New China, especially since the 18th National Congress of the Communist Party of China, China has made remarkable achievements in sports for persons with disabilities, which is related to the strengthening of legal protection. In the era where the discourse of rights is becoming increasingly prominent, it is more important to clarify sports rights in legislative norms than to emphasize only the responsibilities of state organs. The ultimate protection of sports rights for persons with disabilities cannot be separated from legislative confirmation. The legal protection of sports rights of persons with disabilities in China presents the following characteristics, as shown in Table 1.

 

First, the legislative protection of the sports rights of persons with disabilities is characterized by the coupling of “right protection”-oriented management legislation and promotion-oriented legislation. “Traditional management”-oriented legislation is embodied in education, health, sports, the environment and other areas. The legislation serves government administration. With the change from a management-oriented government to a service-oriented government, traditional management-oriented legislation has also changed from strengthening administration to focusing on rights protection, and derived “rights protection”-oriented management legislation, featuring that the state provides basic and protective guarantee for sports rights of persons with disabilities.²³ This basic guarantee is embodied in the rights of persons with disabilities to participate in rehabilitation and fitness activities and competitive activities and the right of students in special schools to participate in sports activities. Legislative norms are reflected in the special protection of persons with disabilities’ participation in sports activities in the Sports Law revised in 2022, and the consideration of the special needs of persons with disabilities in the Regulation on Public Cultural and Sports Facilities and Regulation on National Fitness. Promotion-oriented legislation focuses on attracting the active participation of market entities and social organizations through policy guidance, encouragement and promotion to solve the problem of supply and demand balance in areas where the protection of sports rights of persons with disabilities has not been well developed, which emphasizes and encourages the participation of social forces.²⁴ For example, the Law on the Protection of Persons with Disabilities encourages social organizations to carry out sports activities for persons with disabilities. The Regulations on Public Cultural and Sports Facilities stipulates that persons with disabilities are entitled to have access to public cultural and sports facilities free of charge or at discounted rates. The National Fitness Program (2021-2025) encourages the holding of various sports events and integrated sports and fitness activities for persons with disabilities. Of course, the “rights protection”-oriented management legislation and the promotion-oriented legislation are not completely distinct from each other, but integrated with each other, while they focus on different legislative models in different stages.

 

Second, the legislation on sports rights of persons with disabilities is relatively effective. Legal norms at different levels have different effects and contents, and the degree to which they serve as the basis for enforcement is also different. Multi-level legislation improves the unity of the rule of law and refines the content of rights protection. The Law on the Protection of Persons with Disabilities and the Sports Law stipulate at the macro level that the state is the subject of the protection of sports rights of persons with disabilities and encourages social participation. With the upper-level legislation as the legislative basis, the Regulation on National Fitness, the Regulation on Public Cultural and Sports Facilities, and the Regulations on the Construction of Barrier-free Environments further stipulate that the state shall perform its duties based on a full consideration of the special needs of persons with disabilities in exercising their sports rights. The department normative documents with a lower level of legal effect and a larger number show the characteristics of systematic and long-term formulation, giving full play to the advantages of flexibility and specificity in content. For example, the National Fitness Program (2021-2025) evaluates and oversees whether the opening of public sports venues considers the special needs of persons with disabilities by increasing the efforts in performance appraisal.

 

Finally, the content of protection of sports rights of persons with disabilities is represented by improving the basic public sports service system, enhancing the competitive level of persons with disabilities and carrying out diversified national fitness activities. The Notice on the Guidelines on Accelerating the Development of Social Security System and Service System for Persons with Disabilities, the Opinions on Accelerating the Development of a Well-off Course for People with Disabilities, and the Outline for Accelerating the Process Toward Prosperity for Persons with Disabilities in the 13th Five-year Plan Period state that public sports service institutions shall provide service content and activities suitable for persons with disabilities, and also present persons with disabilities with free or preferential access to public sports facilities to improve the basic welfare system for persons with disabilities. Meanwhile, in order to seek suitable sports and fitness programs for persons with disabilities, they also require all counties (cities, districts) to build sports and fitness demonstration sites for persons with disabilities. As more and more athletes with disabilities compete in sporting events both at home and abroad and achieve excellent performance, the influence of sporting events on persons with disabilities is also expanding. Therefore, the Protection and Development Plan for Persons with Disabilities during the 14th Five-Year Plan and the white paper The Development of Sports for Persons with Disabilities in China and Protection of Their Rights both point out that we should take the opportunity of major international events such as the Beijing 2022 Paralympic Winter Games and the Tokyo 2020 Paralympic Games to implement the plan for persons with disabilities to win honors for China in the Olympic Games, so as to improve the level of competitive sports for persons with disabilities. Of course, the improvement of competitive sports is inseparable from national fitness. Persons with disabilities are the key group in the public service system of national fitness. The national protection for persons with disabilities to participate in the national fitness has undergone a process from the “Project of Self-improvement Fitness for Persons with Disabilities” and the “Sports Fitness Plan of Persons with Disabilities” to the “Rehabilitation Fitness Sports Action of Persons with Disabilities” today.

 

 

The legislation of sports rights of persons with disabilities is characterized by diversified standards and norms, high effectiveness and various contents of protection. However, there are some defects and deficiencies in deducing that the state violates (or fails to fulfill) the obligation of rights protection purely based on rights norms which even leads to “rights on paper.” Therefore, more and more attention has been paid to the study of the institutional approach to the realization of rights from the perspective of the overall system design through the implementation mechanism and right supervision,²⁵ while how to seek an organic balance between administrative supply and rights relief around the right norms has become a practical problem for the protection of sports rights of persons with disabilities in China in the new era. Certainly, the institutional approach should first pay attention to the problem of limited social resources because the financial resources of the state in a certain stage will not be used to protect the sports rights of persons with disabilities. The lack of administrative supply in the protection of the sports rights of persons with disabilities can be attributed to “insufficient income” and “shortage of money.”²⁶ For this reason, legislative norms have repeatedly emphasized the encouragement of social participation and the establishment of diversified protection subjects. To provide better protection to persons with disabilities, China has formed a support system in which the CPC Party committees take the lead, the government takes responsibilities, the public gives support, and organizations of persons with disabilities play an important role. This is a protection model of public-private partnership where the state fulfills the duty of rights protection with the help of private forces to overcome the disadvantages brought by the traditional mode of the state monopoly of public sports affairs management. However, in the protection model of public-private partnership, the joint supply of the state and society has resulted in a change from the traditional dual-party structure of “state — individual citizens” to the three-party structure of “state — society (personal entities) — individual citizens,” and further caused the issue of responsibility redistribution between the state and society as well as the issue of whether the performance of public duties by private forces is subject to judicial review. It is an important proposition of multi-subject collaborative protection to determine the responsibility mechanism under the protection model of public-private partnership, so as to ensure the administrative supply of sports rights of persons with disabilities is not affected and define the responsibilities of the state and society.

 

Besides, the process design of “stipulation of rights by legislative bodies — enforcement of administrative organs according to the law — post review by judicial organs” has become an important demonstration of the systematic protection of rights in China. If the law-making of the legislature is pushed to an extreme, judicial organs will no longer be the last line of defense for rights relief. In this case, “the modern judge is a vending machine into which the pleas are inserted together with the fee, and which then disgorges the judgment together with the reasons mechanically derived from the code,”²⁷ but this is just an ideal model. At present, the protection of sports rights of persons with disabilities only focuses on legislative norms and legal enforcement of administrative organs. Thus, it is very important to strengthen the judicial relief of rights. On the one hand, the lack of judicial relief is because the sports rights of persons with disabilities have not been legislated, and the connotation of the rights is not clear; on the other hand, it is due to the one-sided understanding of Article 32 of the Sports Law by the judicial organs. The exploration of the connotation of sports rights is a “meta-issue” of sports rights research. Although there are disputes over the connotation of the rights, it can be covered by the “bundle of rights” of sports either from the definition of physical education, physical activities and sports in the International Charter of Physical Education Physical Activity and Sport (hereinafter referred to as ICPEPAS), the classification into social sports, school sports and competitive sports in the Sports Law, or the integration and intersection of sports rights and other basic rights according to the dual attributes of basic rights. When it is more and more difficult to interpret the connotation of rights in a positive way, can we find another way based on judicial practice? This paper tries to discuss the judicial protection of sports rights of persons with disabilities based on existing judicial practice.

 

 

“Developing parasports is of great importance in ensuring that persons with disabilities can enjoy equal rights, integrate readily into society, and share the fruits of economic and social progress.”²⁸ The legal protection of sports rights of persons with disabilities is a barometer of social civilization and a yardstick of national human rights protection.²⁹

 

 

The state provides special protection to the rights of persons with disabilities to participate in sports activities and requires public sports facilities to be open to persons with disabilities for free or at low prices, which reflects the difference principle and solves the problem of social and economic inequality of persons with disabilities. It marks a change from formal equality to substantive equality. According to the principle of difference, social and economic inequalities are to be arranged so that they are both to the greatest expected benefit of the least advantaged.³⁰ Therefore, granting sports rights to the main vulnerable group (persons with disabilities) by law is to protect vulnerable individuals, and also to protect vulnerable groups and ensure the realization of public interests. The final trend of such public interests is to eliminate discrimination and realize equal rights. The principle of redress and the value of reciprocity have undoubtedly provided theoretical support for it. The principle of redress holds that in order to treat all persons equally, and to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into less favorable social positions.³¹ The compensation for the sports rights of persons with disabilities is represented by special provisions of domestic laws and international human rights documents. For example, Article 30(5)(ii) of the Convention on the Rights of Persons with Disabilities (CRPD) specifies that State Parties shall “ensure that persons with disabilities have an opportunity to organize, develop and participate in disability-specific sporting and recreational activities and, to this end, encourage the provision, on an equal basis with others, of appropriate instruction, training and resources.” Article 1(3) of the ICPEPAS specifies that “Inclusive, adapted and safe opportunities to participate in physical education, physical activities and sports must be available to … persons with disabilities.” Certainly, unlike the principle of redress, the principle of difference does not require efforts to remove obstacles, but requires the allocation of resources to improve the long-term expectations of the least advantaged, and requires the state to perform its obligations to protect the rights of persons with disabilities to have access to all facilities, sites, services and conditions (collectively referred to as sports facilities) necessary for the realization of physical education, physical activities and sports. The state must have sufficient and effective sports facilities, that is, to ensure the availability of sports facilities; the sports facilities provided by the state must be accessible to everyone without any discrimination, that is, to ensure the accessibility of sports facilities; the state shall give full consideration to the needs of special groups by providing sports facilities, that is, to ensure the acceptability of sports facilities; the provision of all sports facilities must be acceptable, and also be appropriate and of high quality, that is, to ensure the quality of sports facilities.

 

The principle of difference also embodies reciprocity. As a mutually beneficial principle, it means that free and equal citizens respect each other’s personality and lifestyle, and the strong help the weak and enable them to participate in society on the premise of maintaining self-esteem in order to cooperate and live together.³² There are two main reasons for higher “costs” of persons with disabilities’ integration into society as the main vulnerable group and discriminated ones. On the one hand, due to the physiological or physical defects of persons with disabilities, there have been psychological barriers for them to integrating into society. On the other hand, because of the social discrimination and prejudice against persons with disabilities, as well as inadequate channels of social integration and other social environments, persons with disabilities have been trapped in an “invisible circle.” Participating in sports provides an effective platform for persons with disabilities to return to society. The purity, openness and equality of sports make it the most convenient channel for persons with disabilities to integrate into society. The value of sports activities for persons with disabilities is reflected in the social function of sports and the rights of sports. When this kind of social function coincides with the needs of the subject, sports rights, as the carrier of the social function, become particularly important. When reciprocity is incorporated into the legal protection system of sports rights, the subject of feedback, reward and mutual benefits is no longer limited to persons with disabilities as the weak, but a wider range of citizens. Surely, the right to health of persons with disabilities is also better protected through the protection of the right to participate in sports.

 

 

General Secretary Xi Jinping stressed that “We should promote the all-round development and common prosperity of persons with disabilities.” Common prosperity is a basic goal of the Marxist theory on social development and an essential requirement of a socialist country, which consists of two dimensions of “common” and “prosperity.” “Common” contains the comprehensiveness of the subjects and the sharing of results. It refers to the whole society without class differences, involves no polarization, but pays more attention to the needs of rural areas, the grassroots level, relatively less developed areas and poor people,³³ to prevent the influence of the “Matthew effect” and “class fixation” on the exercise of rights of social vulnerable groups and discriminated groups.³⁴ Therefore, the Protection and Development Plan for Persons with Disabilities during the 14th Five-Year Plan states that “We should improve the quality of public services such as rehabilitation, education, culture and sports for persons with disabilities, and promote the comprehensive development of sports for persons with disabilities.” “Prosperity” is comprehensive prosperity that combines material wealth and spiritual wealth. It is a new form of highly-developed political, material, spiritual, social, and ecological civilizations.³⁵ We should avoid falling into the trap of simultaneous prosperity and equalitarianism. Although the legal norm system tends to be improved constantly in China, China is faced with diversified social appeals and social contradictions,³⁶ especially the difficulties brought by the unbalanced legal protection of sports rights to persons with disabilities’ exercise of rights at the time of profound changes unseen in a century, which pose severe challenges to the realization of common prosperity. The construction of a legal protection system for sports rights of persons with disabilities is an important legal guarantee for the realization of the goal of common prosperity and development, an important starting point for easing contradictions and disputes and strengthening social governance, and a key link for access to justice. Law is the basic requirement to ensure that citizens enjoy their rights, have access to all kinds of social resources and realize the distribution of social resources. Law is the basic element for ensuring that citizens enjoy their rights, have access to all kinds of social resources and realize the distribution of social resources. If the special needs of persons with disabilities and other disadvantaged groups to exercise their sports rights are not considered, it will lead to the marginalization of persons with disabilities group.

 

 

Based on the above analysis, we believe that the protection of sports rights of persons with disabilities is faced with the problem of unclear distribution of administrative supply responsibility and the dilemma of judicial practice in the protection model of public-private partnership, and concretizing the abstract protection of sports rights into public sports services is more conducive to exploring the content of rights protection more directly and objectively.

 

 

The protection model of the public-private partnership involves the participation of multiple subjects, and the government’s purchase of public sports services is an embodiment that the state transfers part of the supply responsibility of sports rights protection to private entities. It means that the supply of public sports services in China has changed from the single protection model of the government to the protection model of public-private partnership. The transition of the administrative supply model has alleviated the contradiction between the surge of social demand and the shortage of administrative supply, but the three-party legal relationship structure of “government — society (private entities) — individuals with disabilities” in the protection model of public-private partnership has also challenged the traditional dual-party legal relationship structure of “government - individuals with disabilities,” which has systematically broken down the overall responsibility of the traditional government, and led to the dilemma of the unclear division of responsibility between the government and society.³⁷ On the other hand, when the government transfers part of the public sports service supply to private entities, as the provider, the private entities will naturally pursue the maximization of economic benefits, and will inevitably deviate from the public service goal.³⁸ When we promote the benefits of the protection model of public-private partnership, we should pay more attention to the fact that “the protection model of public-private partnership is formed in the context of a great emphasis on responsibility.”³⁹ The government has an obligation to provide public sports services for persons with disabilities, which is confirmed by the Constitution and laws in the form of a “bundle of basic rights,” but the responsibility, scope and ways of supply should be based on the principle of subsidiarity since the principle of subsidiarity is a principle of neutral value orientation. It solves the distribution of different powers at different governance levels in the multi-level governance structure.⁴⁰ Power corresponds to responsibility. The principle of subsidiarity originated in Germany in the 1950s and gradually became a popular theory in academic circles.⁴¹ It contains two aspects: The first is how to deal with the relationship between the government and individuals (market). Where individuals or the market can solve a matter, they should do it themselves. If they cannot solve it, it should be solved by the government. The second aspect is how to deal with the relationship between the central government and local governments. When the government at a lower level cannot solve a problem independently, the government at a higher level will assist it, but the assistance of the higher-level government should not replace the action of the lower-level government.⁴² This paper discusses the first aspect, that is, making full use of social forces and the socialization of public services to reveal the priority of individuals over society and the state in dealing with certain matters.

 

Administrative supply is a typical application of the principle of subsidiarity. Specifically, the principle of subsidiarity has two characteristics: a negative characteristic and a positive characteristic. The negative characteristic means that the state need not and should not intervene in matters that can be solved by individuals and society; while the positive characteristic means that the state should take the initiative to help individuals and society when they are unable to deal with a matter.⁴³ The key to solving the dilemma about the administrative supply responsibility of public sports services for persons with disabilities is to clarify the responsibility of the government in the supply process according to the principle of subsidiarity at different levels in the public-private partnership protection model. For the principle of subsidiarity in the negative sense, the legal protection of sports rights of persons with disabilities first requires the conclusion of a contract on the purchase of public sports services for persons with disabilities between the government and private entities. In this case, the government does not act as a direct provider, but selects suitable providers of sports services for persons with disabilities as a buyer. Although the legal status of the two parties may appear to be unequal during the conclusion of the contract, the government should be prevented from having any privilege beyond the contractual spirit and the law, which is also to avoid the problem of “active action of the government and passive action of society” in the protection model of public-private partnership. In this case, the government is responsible for the contract, namely, ensuring the conclusion and performance of the contract. Certainly, contractual liability does not exist in isolation. It is often closely linked to regulatory responsibility. The purpose of regulatory responsibility is to prevent private entities, as the provider of public sports services, from pursuing profit maximization and damaging the benefits of the government in purchasing public sports services for persons with disabilities. Particularly, sports for persons with disabilities can reflect the living standards and human rights of persons with disabilities. In the public-private partnership model, the principle of subsidiarity in the positive sense is often based on a fundamental breach of the contract about the government’s purchase of public sports services for reasons of private entities. In this case, the government takes responsibility for the guarantee. The guarantee responsibility of the government is contained in the legal effect relationship of public sports services formed by the government and persons with disabilities. It is “the legal implementation and realization of the political ruling responsibility undertaken by the government on behalf of the state.”⁴⁴ Therefore, by introducing the principle of subsidiarity into the protection model of public-private partnership, the government’s responsibilities in different stages can be clarified, thus overcoming the disadvantages of the protection model, and improving the protection of the sports rights of persons with disabilities.

 

 

The legal protection of sports rights of persons with disabilities requires proactive actions by the state. Otherwise, the rights may be dissolved if the state is passive or reactive, and further trigger a debate on the truth and falsity of the concept of sports rights again. At present, the difficulty in the protection of sports rights of persons with disabilities in China is mainly reflected in the inaction of administrative organs to the protection of rights. To solve this difficulty, we require legislative norms and external judicial supervision of administrative organs. But, on the one hand, the judicial relief for the rights of persons with disabilities is still centered on the right to rehabilitation, the right to employment and the right to education. For example, the top 10 model cases on the protection of the rights and interests of persons with disabilities issued by the Supreme People’s Court and China Disabled Persons’ Federation mainly focus on the protection of these rights. On the other hand, as there is no clear legislation on sports rights, the legal protection of sports rights of persons with disabilities is quite difficult. Since the judicial relief of sports rights of persons with disabilities cannot support the direct protection of sports rights of persons with disabilities through individual lawsuits currently, it may be a feasible way to introduce administrative public interest litigation in the construction of barrier-free environments in sports venues to protect sports rights of persons with disabilities, by reference to the ten model cases of public interest litigation concerning the construction of barrier-free environments released by the Supreme People’s Procuratorate and model cases of public interest litigation concerning the protection of the rights and interests of persons with disabilities released by the Supreme People’s Procuratorate and China Disabled Persons’ Federation. Although the above model cases of public interest litigation on barrier-free environment construction mainly involve roads, public transport, information and other barrier-free environments, the Regulation on the Construction of Barrier-free Environments clearly specifies that “People’s governments at the county level or above shall give priority to the renovation of barrier-free facilities in public places of … sports and other institutions,” which makes it possible to protect sports rights of persons with disabilities through administrative public interest litigation.

 

For the introduction of administrative public interest litigation in the construction of barrier-free environments in sports venues, on the one hand, barrier-free facilities in sports venues are a specific aspect of the protection of sports rights of persons with disabilities and have a clear legal basis; on the other hand, the Fourth Plenary Session of the 19th Central Committee of the CPC put forward that “We should expand the coverage of public interest litigation,” laying a foundation for administrative public interest litigation to extend to the field of protection of sports rights of persons with disabilities. As one of the model cases, the procuratorial organ of Zhejiang Province combined the construction of barrier-free environments with the Fourth Asian Para Games Hangzhou 2022, identified the root cause for the long existence of frequent and common problems by means of special supervision, and promoted systematic governance through systematic special supervision.⁴⁵ Therefore, the People’s Procuratorate of Zhejiang Province and Zhejiang Provincial Disabled Persons’ Federation jointly issued the Opinions on the Establishment of Public Interest Coordination and Collaboration Mechanism, and gave full play to the professional advantages of procuratorial organs and disabled persons’ federations to form joint efforts to protect the lawful rights and interests of persons with disabilities through the establishment of a corresponding contact mechanism, information reporting system, clue transfer mechanism, case handling collaboration and promotion linkage mechanism. Surely, the introduction of administrative public interest litigation into the protection of sports rights of persons with disabilities involves complex contents, which need to be improved in theory and seek breakthroughs in practice.

 

 

In the new journey of building a modern socialist country in an all-round way, we must not leave persons with disabilities behind, nor should we leave them behind in the process of building a leading sports nation and a healthy China in an all-round way. General Secretary Xi Jinping has said that it is an important task to “boost coordinated development of mass sports, competitive sports and the sports industry”, thus speeding up the building of China into a leading sporting nation. As an important part of the new development concept, coordinated development is an important means to solve the imbalanced and insufficient contradictions in building a leading sporting nation. The people-centered philosophy has become the core idea of China’s human rights discourse system,⁴⁶ and it is the fundamental principle and action guide of the construction of the sports rule of law in China.⁴⁷ China’s legal protection of sports rights of persons with disabilities should develop in a new direction, that is, to adhere to Xi Jinping’s people-centered thought on the rule of law and ensure the coordinated development of mass sports, competitive sports, and the sports industry. “A leading sports nation is built on robust mass sports.”⁴⁸ Promoting the deep integration of sports for all and health for all is an important means to promote the all-round development of persons with disabilities. The Outline of the Program for “Health China 2030 points out that an important way to improve the physical quality of all people is to improve the public service system for sports and fitness and widely carry out the national fitness campaign. Specifically, for the subjects of persons with disabilities, the extensive development of rehabilitation sports and fitness sports for persons with disabilities should be promoted. In this connection, Article 23 of the Sports Law revised in 2022 stipulates that “The whole society shall care about and support participation in national fitness activities by … persons with disabilities. The people’s governments at all levels shall adopt measures to facilitate and guarantee the safe participation in national fitness activities by … persons with disabilities.”

 

Competitive sports are an important part of China’s sports cause. China should further enhance its overall strength in competitive sports, make competitive sports better, faster, and stronger, improve its ability to win honors in major international events, and vigorously promote the development of mass sports. The development of competitive sports is more in need of legal protection. One of the important aspects is to build an anti-doping rule of the law governance system. For the future development of anti-doping governance for competitive sports for persons with disabilities, we should seek an organic connection of internal and external regulation and establish a domestic doping dispute settlement mechanism within the rule framework of four levels, such as the anti-doping regulations formulated by international conventions and international organizations, domestic anti-doping legislation, and anti-doping regulations formulated by domestic sports organizations. The Outline for Building a Leading Sports Nation stresses that the sports industry is the main content of building a leading sports nation. To build a leading sports nation, we should strengthen competitive sports and mass sports and the sports industry. The industry of sports for persons with disabilities is closely related to mass sports and competitive sports. Mass sports are an important way to cultivate persons with disabilities’ sports consumption awareness and ability, and an important basis for developing the sports industry. Competitive sports provide high-level sports competition resources for the sports industry, and the sports industry provides the material basis for mass sports and competitive sports.⁴⁹ The protection of the sports industry for persons with disabilities was made clear as early as 2014 in the Opinions of the State Council on Accelerating the Development of the Sports Industry and Promoting Sports Consumption. The Sports Law revised in 2022 sets a special chapter of “Sports Industry” to provide solid legal protection for developing the sports industry in China.

 

 

“Laws alone cannot carry themselves into practice.” Rights are not automatically realized by relying on the operation of laws in an institutional vacuum. The legal protection of sports rights of persons with disabilities still needs the perfection of legislative norms, enhancement of administrative supply and provision of judicial relief channels, and an organic balance among the three. There are more and deeper problems behind the dilemma of the legal protection of sports rights of persons with disabilities, involving lessons and experience from the latest achievements in international rights protection of persons with disabilities, comprehensive transformation of the perspective of protecting the rights of persons with disabilities, new positioning of the development of sports law in China, and legal practice of rights protection under the guidance of basic rights, which also puts forward higher requirements for the research field and research paradigm of related scholars in China. In the face of more problems and higher requirements, we need to go deeper into the legal practice of rights protection to find problems, so as to solve the difficulties in the legal protection of sports rights of persons with disabilities.

 

(Translated by SHEN Jinjun)

 

* YUAN Gang ( 袁钢 ), Professor of Sports Law Institute, Deputy Director of Center for Studies of Sports Law, China University of Political Science and Law. Doctor of Laws.

 

** KONG Weidu ( 孔维都 ), Doctoral Candidate of China University of Political Science and Law. This paper is a phased result of the major project “Research on Anti-doping Legal System and Prevention and Control Mechanism” of the National Social Science Fund of China (Grant No. 20&ZD337).

 

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