Consent, Context, and Obligations: A Response to Ciomaga

Abstract

In his ‘Rules and Obligations,’ Bogdan Ciomaga defends a pluralist account of moral obligations to follow sport rules by arguing that no single explanation of such obligations will plausibly apply in multiple contexts. I dispute this claim by showing that consent generates rule-following obligations in a very wide variety of the contexts in which sports are played, including each of those Ciomaga cites in support of his pluralist account. The contractualist or consent-based theory of rule normativity therefore offers a substantially unifying – though not a unitary, for reasons I go on to explain – source of moral obligations to follow sport rules.

Keywords:

• Ciomaga
• consent
• contractualism
• obligations

Notes

1. This is also a natural explanation in the sense that, given that sport rules impose artificial constraints on the performance of what are often relatively easy tasks – i.e. on achieving the sport’s pre-lusory goals (Suits 2005, 52) – the idea of our being obligated to follow those rules (e.g. to run within a lane that is three feet wide) apart from our agreeing to do so might seem absurd. I am indebted to an anonymous reviewer for this point.

2. Or perhaps the rules as interpreted by the ethos. As Fraleigh explains, there is some dispute regarding whether the content of an agreement to play a sport ‘is completed by the rules or the rules plus the ethos,’ where the ethos of a sport may allow for the violation of some of the rules (2003, 167). For instance, if the content of an agreement to play a college basketball game is determined by the rules plus the ethos, or the rules as interpreted by the ethos, and if that ethos allows for intentional fouls to stop the clock late in games, then to agree to play a game of college basketball would not be to agree to follow the rule against fouling when one is in late-game situations. I will not enter this dispute between formalists and conventionalists here. My concern lying not with the content of any specific agreement to play a sport, but the general power of such agreements to generate obligations, what matters here is simply that to agree to play a sport is to agree to follow at least some of its rules, for I will argue that such agreements generate prima facie obligations to follow those rules. Whether that includes all and only the formal rules of the sport or those rules as modified or interpreted by an ethos makes no difference to my arguments, and so I leave it to the readers to interpret references to ‘the rules’ as they see fit.

3. Russell has recently offered some sport-specific suggestions regarding this issue, arguing that an individual’s consent to play a sport (and thus to follow its rules) can be voluntary and morally valid even if A) the individual is ignorant of some of those rules and/or B) she views the sport as a means to an end (e.g. a paycheck) rather than as an end in itself (2011).

4. Importantly, consent to play must be ongoing. If a boxer who previously agreed to a match subsequently withdrawals his consent before the bell rings for the first round, any subsequent punching on the part of his would-be opponent constitutes a beating rather than a boxing match. The same is true if he simply loses his ability to consent during a round. A boxer who is ‘out on his feet’ is no longer a consenting participant, and he and his opponent thus no longer engaged in a boxing match (Russell 2004, 147).

5. Whether this would in fact wrong the I.O.C. depends on whether that agreement was entered into voluntarily (in which case the Cuban players are prima facie obligated to play the games), what sort of considerations might negate or outweigh that prima facie obligation, and whether such considerations obtained in the case at hand.

6. It might be thought that when the Cuban players contracted to participate in the tournament they formed an agreement not only with the I.O.C. but with the members of all other participating teams. In that case, the Cuban players’ refusal to play would represent a violation of a prior agreement with their American counterparts. (Their lack of ongoing consent, though, would mean that no game occurs and no moral entitlements are transferred to the American players. This case would be analogous to that of the first boxer described in note 4.) I am doubtful about the existence of such agreements, but if I am wrong about that and consensual agreements between players are formed in advance, then Ciomaga has clearly failed to provide a counterexample to the contractualist theory.

7. Rather than an example in which consent fails to generate obligations to follow the rules, what Ciomaga has offered is in fact an example in which it does so twice-over. By entering an agreement with the federation to play the scheduled games, players put themselves under a prima facie obligation with respect to the federation to follow the rules of the game; by entering an agreement with their fellow participants to play together, the players put themselves under a prima facie obligation with respect to those participants to follow the rules. An individual who formed both agreements and then broke the rules would thereby (prima facie) wrong both parties.

8. The fact that individuals who have consented to play a game together share a close bond therefore does not somehow remove their consent of its obligation-generating power; if anything, it reinforces or strengthens the obligation created by consent. In addition to strengthening or directly generating obligations to follow the rules, fraternal considerations might in some cases indirectly lead to such obligations. An individual might have a fraternity-based obligation to play a game with some community member(s). That obligation would operate at the same level as the Cuban basketball players’ obligation to play the scheduled Olympic games: because there must be an agreement amongst the participants in order for there to be a game, to be obligated to play a game with a fellow community member is to be obligated to agree to play with her, and to thereby put oneself under a consent-based obligation with respect to her to follow the rules of that game. The various other moral reasons individuals may have to play sports with others also operate at this level. To take one particularly important example, given that sports offer an important means of promoting human flourishing, an individual might conceivably have a flourishing-based obligation to play a sport with others, and thus to agree to play with them, and thus to again undertake a consent-based obligation with respect to them to follow the rules of that sport. For discussions of the relationship between consent and the promotion of flourishing as sources of moral evaluation in sport, see Russell 2007 and Weimer 2012.

9. In most cases, it is easier to avoid playing in a professional sport league than it is to avoid living under a government. Whether it is easy enough to render acceptance of benefits voluntary will depend on the case (e.g. the quality of the alternatives available to the individual in question) and the requirements of voluntariness, a topic I continue to leave to the side. Discussions of this issue as it applies to boxing, specifically, can be found in Dixon 2001 and Simon 2007.

10. In fact, in a direct analogy of the Olympic case, rather than an example in which consent fails to generate obligations, we again have one in which it generates obligations to two separate parties. The team/league with whom a professional athlete signs a contract simply replaces the I.O.C. as the party with whom she has agreed to play the scheduled games. In order for those games to occur, there must also be an agreement to play together amongst the athletes.

11. They need not, but they might, for an individual who plays alone may have agreed to do so with some non-participant, just as the Cuban players formed an agreement to play with the I.O.C.

12. Assuming, of course, that we reject the notion of moral obligations to self. For example, if an individual marooned by herself on a desert island decides to pass the time by setting up a golf course and playing a round, but regularly picks up her ball and carries it closer to the hole, then even if we want to say that she is ‘cheating’ at golf rather than creating and playing her own modified game, she has not violated any moral obligations.

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Steven Weimer

Steven Weimer is Assistant Professor of Philosophy in the Department of English and Philosophy at the Arkansas State University, P.O. Box 1890, State University, 72467 United States.