The existence of the subject ‘Sports Law’ has been debated for a number of years now and there are two different schools of thought with regards to the term ‘Sports Law’. Some commentators refer to ‘Sport and the Law’ arguing that there is currently no topic than can be referred to as ‘Sports Law’. Grayson, who many consider the father of ‘sport and the law’ states that ‘No subject exists which jurisprudentially can be called sports law. As a soundbite headline, shorthand description, it has no juridical foundation; for common law and equity creates no concept of law exclusively relating to sport’.
His view is that there is no separate legal discipline with regards to sport and sporting activity, and that it is only a subject area where normal legal principles are to be applied. However, there are others, mostly academics, who see Sports Law as having developed into a new legal area in its own right; ‘the answer to the argument that sports law is merely law in which the parties happen to be involved in sport, is that the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport, differently from other activities or bodies. Discrete doctrines are gradually taking shape in the sporting field ... there are now clear signs that the English courts are beginning to treat decisions of sporting bodies as subject to particular principles.’
This quote from Beloff sums up the attitude of courts towards sport and is an indication of the origins of Sports law as its own discipline. Law is applied in many aspects of public and private life, but not every aspect of life has a set of legal rules. However, this development is not unique to sport, and is a process that has happened to many legal areas. Labour or employment law is a subject area that has only achieved relatively recent recognition. It has its origins in contract law in the employment context, but no one would doubt that is has become a subject area in its own right. Some authors, most notably Beloff, Kerr and Demetriou, believe that the subject of sports law is now sufficiently developed to merit recognition as a discrete field of law, and as a consequence it is legitimate to use the term ‘sports law’; Sports law has certainly adopted the clothing of a recognised discipline.
There are many books on sports law. Their titles prove conclusively there are many ways to skin a cat--Sports Law, The Law of Sport, Sport and the Law --and jeux being notoriously sans frontières --European Sports Law and even International Sports Law .
As discussed earlier, the law intrudes in many aspect of life, but not all of them end up having their own set of legal rules and doctrines. We must now look at the reasons why law has taken such an important role in sports which has led to the field expanding and becoming a discipline itself. Previously in English Law, sport was considered to be a contractual matter subject to private law principles. However, the development of sport meant that there was occasional need for some form of intervention at the level of government to guarantee the health of society.
The underlying point however, is that intervention should be limited to only such extent as is required to preserve the sporting nature and value. It was held in Meca-Medina and Majcen v Commission of the European Communities that sport is subject to European Community law only to the extent that it constitutes an economic activity. There has indeed been some level of intervention under English law, but it has been no more than supervisory with the aim of protecting the public interest (including fans and spectators) as well as the legally guaranteed rights of sportspersons.
The intrusion into the sphere of sports governing bodies has seen the legislature in England enact laws governing sport. This basically has been to regulate the behaviour of fans, specifically with legislations such as the Football Offences Act 1991 and the Football Disorder Act 2000. Despite the existence this legislation, none has really penetrated the regulatory sphere of sports governing bodies as they relate basically to the conduct of fans and spectators.
The social aspect of sport cannot be overestimated, and as such government and the law have been under pressure to get involved with sport at differing levels; however it is from the situation within sport itself that has led to a rise in legalism. Professionalism, and the resulting increase in the stakes involved in sport have increased the potential for conflict between sports people and governing organisations. The growth of legalism in sport is borne out a desire for higher standards of justice, demanded by the sporting community as a consequence of the rise of professionalism and the increase in earnings potential within sport . Sport, for all intents and purposes, is a self regulating industry. Sports governing bodies are private associations that create the rules of the sport, as well as deliver judgment in disputes that arise. They are powerful organisations that have rules which affect sports people on and off the field of play.
These private, self-regulating associations generally grew up during the late nineteenth century as sport developed out of disparate and localised games in to the codified and uniform packages that exist today. While government may have been generally supportive of regulation of sports, because of the increased orderliness and control it brought to them, it took no significant part in the regulatory process . As sport has grown, and the power it has socially and economically has increased, so too have the effects which these bodies have on sports people on and off the field of play. There are many reasons why the courts are happy for sport to be self regulated, not the least being the cost implications of government taking over the regulation.
Also, the courts recognise that certain regulatory function may require the exercise and efficiency of expert judgement where a decision maker has to consider competing options or values and come to a balanced judgement. Questions are often raised as to the extent governing bodies are accountable for their actions, and the ability of individuals to obtain redress against them, and the court is usually quick to state its supervisory role. In the case of Bradley v Jockey Club , where a former jockey who currently carried on business as a bloodstock agent, challenged the penalty imposed by the defendant, following a finding that he had breached the Rules of Racing. He had admitted passing confidential information to a betting syndicate and the Clubs Disciplinary Committee imposed a penalty of eight years' disqualification. On appeal the disqualification period was reduced to five years.
The penalty of disqualification would, in reality, have debarred Bradley from dealing as a bloodstock agent. He contended that he had a contractual relationship with the club and that they was in breach of the implied term that it would only impose a sanction that was proportionate or, alternatively, if there were no contractual relationship the club had nonetheless imposed a disqualification that would operate in unreasonable restraint of trade. The court found for the defendant, deciding that its function was to ensure that the primary decision maker, the board, had not imposed a period of disqualification that fell outside its discretionary area of judgment and that principle applied to both the non contractual and the contractual claim. This is an example of where the court is happy to let the governing body complete its activities as long as it is within the scope of its powers.
Sportsmen enter into contracts, since few are the sports which remain faithful to their origins as a source of fun, not fees, although their contracts will naturally reflect the distinctive features of their occupation. They are subject to the law of tort, as well as the criminal law both on and off the pitch, pool, rink, track or court, although both laws have to adjust to the fact that many sports are contact sports, and in most there is at least a risk of contact, and fashion the boundaries of what is or is not acceptable behaviour in its light. This quote, and has been discussed emphasise the fact that sports is part of the law, but the fact that courts all around the world still see it fit to give it a separate status adds to its appeal as a separate discipline.
Courts regularly ‘substitute’ normal legal principle to accommodate sporting principle. Bradley is a perfect example because the restraint of trade argument was overruled by the fact that horse racing had specific rules and regulations that needed to be protected against abuse. The sport of boxing is a major example of where the courts seem defer their responsibilities and allow the self regulating bodies to create law “I intend no disrespect to the valuable judgment of McInerney J in Pallante v Stadiums Ply Ltd (No.1)  VR 331 when I say that the heroic efforts of that learned Judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chose to tolerate it.”
There are also examples of statutes that have enforced the specialised nature of sport: The English Sex Discrimination Act 1975, s.44, has an exception for competitive sport and the English Gender Recognition Act 2004, s.19 has one for transsexuals. These aside, Sports law in the United Kingdom it is substantially untouched by statute, but rather because it enjoys an international substructure; at the pinnacle is the Olympic Charter and the rules and regulations of the major international sports bodies, FIFA, the IAAF, FIA and the like, under whose ultimate authority regional and local bodies operate in a complex pyramid of interlinked regulations. The globalisation of sport is the next major argument towards recognising sports law in its own right.
The fact that there is no specific legal status for sports in the EU treaties has meant that the development of a European sports policy has been long and arduous and as such, sport has been prone to fall victim to the unintended consequences of activity elsewhere in the EU. There has been debate concerning whether the European commission should be actively involved in sport regulation. Most people would argue that sport is different from other areas of economic activity such as the Common Agricultural Policy.
The European commission have, however, noticed that sport is ‘big business’, and claim that the general provisions of the Treaty of Rome should apply to sport, that is, the four freedoms underpinning the single market – free movement of individuals, goods, capital and services An early indication of the role sport would come to play in the EU can be seen in Walrave v Association Union Cycliste Internationale where it was held that only economic activities are subject to Community law and that sport was governed by it only to the extent that it is an economic activity, and rules against discrimination against nationals do not extend to sports teams.
In a paper in 1992 entitled, the European Community and sport’, the European commission defined its overall approach to relations with the world of sport. For sports federations, this paper provided the first reference framework defining the scope of community action. It marked the starting point for a constructive dialogue, to acknowledge the specificity of sport and its special characteristics.
This line, drawn between sporting activity and economic activity by the European Union, is an indication as to the understanding of the difference between sports law and ‘ordinary’ law.
This leads to certain rules generally going against freedom of movement provisions of EU law. The key test in these situations is that the rule in question must be “of a sporting interest only”, the primary example of this being the situation in football where there are restrictions on the selection to national teams to nationals only, but does not have the same criteria for local teams where anyone from within the EU play. There are also some examples of cases where the meanings of ordinary legal instruments change in sport: in the case of Reel v Holder where there was a dispute over what the term ‘country’ meant, it was held that "country" meant the area over which one governing amateur athletic association exercised authority, rather than a national or sovereign state.
This allowed Taiwan to retain its membership of the International Amateur Athletic Federation (IAAF). A distinction is conventionally drawn between legal nationality and sporting nationality, a topic of increasing importance as sporting mercenaries sell their talents to the highest bidder . The global nature of sport creates a need for dispute resolution that can be recognised internationally. In different countries, there are many sports specific tribunals that deal with disputes at the top of which is the Court of Arbitration for Sport (CAS). CAS is an arbitral tribunal created by the International Olympic Committee (IOC) in 1983.
Most major international sports federations subscribe to CAS’s jurisdiction, and it is the main, but not the only source of sporting jurisprudence. The CAS is governed by its own Statutes and Rules of Procedure – Statutes of the Bodies Working for the Settlement of Sports Related Disputes; Code of Sports Related Arbitration; and Mediation Rules CAS appears itself to recognise the special nature of sports law by requiring of its members among other qualities “recognised competence with regard to sports law”, something sufficient but not necessary, since it continues “and/or international arbitration”.
The Swiss Federal Court has recently described it as a “true” Supreme Court of world sport, and while that same Court can review CAS's decisions, it does so within strict limits reminiscent of those recognised by common law courts reviewing the exercise of an administrative discretion. A special feature of CAS service lies in its provision of Ad Hoc Panels, a mobile legal unit (now a fixture at Olympic and Commonwealth Games) whose decisions have to be handed down within 24 hours of an application being filed.
As the Swiss Federal Court observed: “In competitive sport, particularly the Olympic Games, it is vital both for athletes and for the smooth running of events that disputes are resolved quickly, simply, flexibly and inexpensively by experts familiar with both legal and sports related issues” Michael Beloff in his book Sports Law advocates a distinction between horizontal law and vertical law. He explains that horizontal law is a body of rules which can be applied across the range of relevant human activity, while vertical law was an activity driven body of rules. Torts or trusts fall into the former category. Sports law, like aviation or banking law falls substantially into the latter.
But that does not mean that sports law is in any sense devoid of principled foundations. The positive attitude of sports towards general principles of law can be evidenced in the formula used for the CAS Ad Hoc Panels at successive summer Olympics (Atlanta, Sydney, Athens); winter Olympics, (Nagano and Salt Lake City); Commonwealth Games (Kuala Lumpur and Manchester) reflected this character. It directed the Tribunal to complement its application of relevant regulations with the “general principles of law and the rules of law, the application of which it deems appropriate”.
This is a clear indication that the nature of law in general, and sports law in particular, are the same all over the world and that sport is a very international industry. This recognition of the international nature of sport finally influenced the shape of the new CAS code, effective from January 1, 2004, which, while leaving Swiss law as the national law to be enforced, absent agreement of parties to another system, authorises the Panel to apply ‘rules of law’ it deems most appropriate for each case. Thus, the panels may deviate from the law of the country in which the federation is domiciled and reach a decision on the basis of the laws of another country From the examples given above, it is easy to see that sport is treated as a very unique and specialist area of the Law and some authors refer to sports law as lex sportiva in the same way as the old international law of commerce,
lex mercatoria. ‘Both respect a degree of autonomy, both acknowledge cultural specificities, both are part of a pluralistic and complex normative rule structure, and both acknowledge the need for international emphasis in terms of legal regulation’ . However, bringing together different principles of law does not of itself create sports law: In speaking of a lex sportiva, it is useful to bear in mind the law whose description it echoes--the lex mercatoria, recently described in the English Commercial Court as the: “general law of merchants a law to which some international tribunals have regard … but … not the law of a country which is capable of ascertainment by expert evidence from practitioners in the country and which governs “the substantive rights and duties of parties to certain types of international transactions to the exclusion of substantive law”
The case of AEK Athens FC and Slavia Prague Fc v UEFA , in which a UEFA rule prohibiting multi owner-ship of clubs in the same completion resulted in AEK being excluded from the competition even though the ruling came into effect after their qualification, the Panel observed that “Sports Law has developed and consolidated along the years, particularly through the arbitral resolution of disputes, a set of unwritten legal principles--a sort of lex mercatoria for sports, or, so to speak, a lex ludica--to which national and international sport federations must conform, regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided they do not conflict with any national ‘public policy’ (ordre publique) provision applicable to a given case” .
Here, the panel again emphasises the fact that sport has its own special characteristics and principles which sports federations should follow as long as they don’t conflict their national laws, another example of the separation of ‘sports law’ from ‘normal’ law.
The law interacts with sports in many different ways: Of course sports law is entwined with general law. Sportsmen enter into contracts, since few are the sports which remain faithful to their origins as a source of fun, not fees, although their contracts will naturally reflect the distinctive features of their occupation. They are subject to the law of tort, as well as the criminal law both on and off the pitch, pool, rink, track or court, although both laws have to adjust to the fact that many sports are contact sports, and in most there is at least a risk of contact, and fashion the boundaries of what is or is not acceptable behaviour in its light .
The fact that Sports Law is in its early stages often makes it difficult to distinguish as a separate discipline, however, if one looks closely at the relationships that have been detailed above, it is clear to see that sports Law has come of age and is holding its own against the more traditional disciplines of law. Sport is dynamic and ever changing, as have to be the laws that govern it. The underlying principle behind sports law is very contradictory, and this may be why some find it difficult to grasp or accept: Some of the sinews of a lex sportiva are the constituent instruments of the sports themselves.
These play various roles: regulating the allocation of powers within the sports’ governing bodies; rules regulating competitions; rules regulating the playing of the game itself. All of these are in principle justiciable, but judicial or arbitral self-restraint shows that in practice so-called game rules are not. For at the heart of the lex sportiva lies a paradox, namely that one of its key objectives is to immunise sport from the reach of the law, to create in other words a field of autonomy within which even appellate sports tribunals should not trespass.
The referee, umpire or other match or competition official must be allowed free play within his own jurisdiction. And he must be free to err, subject only to any corrective mechanism contemplated by the rules themselves. Sports law in short recognises subsidiarity. “A fully developed lex sportiva would help apply three values that the principle of stare decisis serves: efficiency of the legal process, predictability or stability of expectations: and equal treatment of similarly situated parties.” While we admit that sports law is still developing, it is already at a place where it can be used as a good example for emerging legal discipline to follow, and though it is a special case with many different factors affecting it, we would do well to take the many positives from it and apply them to future emerging disciplines.