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| Feature | No.64 June 2013 |

Aspects of Sports Law and Lex Sportiva

Mr. Dimitrios P. Panagiotopoulos

Abstract

Sports Law, as a relatively new subject field of sports science and the law, appears to enjoy great scientific and academic interest both at national and international levels. Likewise, Sports Law is of particular interest in the field of sports practice. For this reason, the nature, the content as well as other aspects of this form of Law should be clearly defined by the legal science.

In this paper, the particular nature of Sports Law is thoroughly examined, giving emphasis to the specific aspect that distinguishes Sports Law from national or international Common Law. S ports Law is primarily associated with the federal systems of international sport as well as the Olympic Charter regulations which are related to Olympic Games stakeholders. In this system, the aspect of Sports Law as Lex Sportiva-Lex Olympica, an anethnic law, is being formed, which is governed by the principle of lex specialis derogate legi generali.

The methodology that is used for the investigation of this issue is mainly analytical and interpretative methods, in the horizon of lege lata and according to the international bibliography.

The conclusion from this study is that the regulations of Lex Sportiva-Lex Olympica are governed by specific characteristics and form a sui generis heteronomous legal order on global sports. This legal order is being imposed by international organisations in the field of sports, such as the International Olympic Committee (IOC) and International Sports Federations.

Introduction

The sports field is organised at the international level in a community, which, in the margin and regardless of any state supervision, has developed its own particular institutions and rules. International Sports Federations (ISF) constitute private entities governed by the laws of the country in which they hold their seat. The ISF regulate the sport which they have responsibility for, with the relationships between people and events evolving across state borders.
On top of this pyramid is the International Olympic Committee (IOC). The Olympic recognition of International Sports Federations and National Olympic Committees is the key, setting in motion the law set by the rules of the Olympic Charter. This recognition is given under certain conditions and has legitimising and transmissive results. The same applies to the International Sports Federations (ISF), who wish for their sports to be recognised as Olympic ones. International sport activity has been created alongside the state and has formed a sui generis international sports law, the so called Lex Sportiva, which is followed by the national sports federations Panagiotopoulos, 1999; 2002; 2003; 2004)1. These sports institutions shape and regulate the relationships being developed, strictly and exclusively, within the framework of Lex Sportiva (Panagiotopoulos, 2011).

These rules are not imposed directly on the national (domestic) law, but as an obligation to the competent bodies and federations in the country to harmonise their regulatory function under national law; according to the regulations of the International Federations. In this way, Lex Sportiva is being imposed within a country, often through its incorporation within national sports law, so that the provisions of this sui generis sport legal order are being applied without conditions and supersede any other national law.

Ι. Lex specialis derogate legi generali

As special rules of law, the Lex Sportiva rules prevail over contrary provisions in accordance with the legal principle “lex specialis derogate legi generali” (Panagiotopoulos, 2003).

This shaping of Lex Sportiva as a sports law system applies mutatis mutandis the theory of Lex Mercatoria (Pampoukis, 1996)2, which was first analysed in 1999 in an attempt for the scientific position on Lex Sportiva to be shaped, which there is now extensive and important debate for.

Thus, Lex Sportiva represents a non-national legal system set by private entities; it is not substantially – even though such claims have been made - international sports law, since it has not been set by an international or supranational entity with corresponding legislative powers, so as to be considered as private or public international law.

In this framework, international sports law consists only of anti-doping rules set by the World Anti-Doping Agency (WADA) and of international acts and conventions in sports, as well as the rules of law of supranational entities associated with sports and athletic activities. Additionally, the rules of the WADA Code, which has been adopted by UNESCO and is binding on all states who have signed the agreement to make it a rule of their domestic law (following approval of their parliaments), are rules of international sports law (Bredimas, 2002; 2005; 2005a). Therefore, international sports law is completely different from the law of rules of Lex Sportiva-Lex Olympica.

The International Sports Federations by their statutes, in the context of contractual freedom, regulate their internal organisation and operation and have regulatory and disciplinary powers, beyond the arrangement of the technical requirements for the organisation of international competitions on their sport.

ΙI. Lex Sportiva System

It is obvious that Lex Sportiva spreads across many areas of sport activity and regulates both aspects of a purely athletic nature, as well as issues relating to the economic and personal freedom of those involved in sports. This is demonstrated by judgements of the European Court of Justice in its decisions on the Bosman (case C 415/93) and Laurent Piau cases (case T-193/02). These must be issued by internationally legitimised bodies (Panagiotopoulos, 2012; Panagiotopoulos, Mournianakis, Alexandrakis and Manarakis, 2010; Panagiotopoulos and Paschou, 2006).

The sources and processes of that legal order do not coincide with the traditional sources and procedures of law, where the dominant element is the state. To circumvent the difficulties posed by the controversial nature and power of the law produced within the sports system, the Court of Arbitration for Sport (CAS or TAS) has been create as an institution for sports arbitration (Reeb, 2002; Dedes and Zagklis, 2006). Disciplinary power is being exercised by the circle of organs of Lex Sportiva over athletes, managers, coaches or any others related to its action. The National Federations, in order to apply the rules of Lex Sportiva, have to introduce a clause into their statutes whereby the associations and their members may not have the right to appeal to ordinary courts and should submit any dispute to the jurisdiction of the Federation or to the special - for that purpose - court of the Olympic construction: Court of Arbitration for Sport (CAS).

Arbitration at national and international levels is an integral part of the institutional mechanism that governs both national and international athletes. One of its advantages is that it reflects the only way to guarantee uniform interpretation and application of rules in international sport activities (Panagiotopoulos, 2006)3 . In this framework, the Court of Arbitration for Sport shall be treated as a judicial body of the international sports community for the implementation of the rules of Lex Sportiva. Such a judicial institution must be based on the principles of: efficiency of the legal process; impartiality; and equal treatment of similar situations, so that the process of arbitration becomes valid. It is thus clear that Lex Sportiva also identifies the need for a tribunal that not only applies, but also edifies and completes Lex Sportiva rules in order to ensure and safeguard the Lex Sportiva system and the decisions of its stakeholders. The decisions of such a court should namely be constitutive of the Lex Sportiva law, even to impose the transformation of these rules or invalidate them when they conflict with the principles of law or when they are contrary to internationally acknowledged legal norms (Panagiotopoulos, 2004b; 2011). On the basis of the above, it can be argued that the Lex Sportiva system has formed CAS and not vice versa, as is erroneously being supported (Nafziger, 2004; Panagiotopoulos, 2002; 2003a; 2004; 2004a; 2005; 2011)4. On closer examination, the position that Lex Sportiva is merely a category or sub-species of international law does not appear to be true (Panagiotopoulos, 1999; 2002).

We are facing a system of law which undoubtedly possesses characteristics from the general principals of law and regulates relations in the international domain. The international sports system has succeeded in establishing an impressive system of coercion, through sanctions and binding jurisdiction of the judicial institution, comparable only with national domestic law and community law, in terms of efficiency and application.

Therefore, the application of sports law as Lex Sportiva, is not automatically guaranteed by the national courts within state jurisdictions. In other words, International Federations and the IOC introduce provisions in their statutes which prohibit appealing to civil courts, and consolidate judicial power for the organs of Lex Sportiva, thereby ensuring the prospect of resolving sports disputes through arbitration by an institution established by the athletic community, the Court of Arbitration for Sport (CAS).

Thus, CAS has become responsible for resolving sports disputes between members of the international sports community and has been accessed by the national federations and their members. This ensures the implementation of Lex Sportiva regulations, as modified exclusively by the competent international sports organisations.

Consequently, in the international sports field, as well as developing nationally alongside constitutionally designated justice, we face the so-called organic "justice" (justice organique), which is awarded by the "organic courts" (tribunaux organiques), as a special judicial order of the sports judicial organs. In most statutes of almost all International Sports Federations (ISFs), there are provisions, namely exclusion clauses, which prohibit appealing to civil courts and which have already established a uniform practice in terms of the settlement of sports disputes at international and national levels. The rules of ISFs, whose members are National Federations, provide exclusive jurisdiction to organs of disputes resolution within themselves i.e. the International Sports Federations, while the potential that stakeholders appeal to the national sporting bodies or courts is being excluded. Lately, the courts themselves have claimed their competence to decide on the validity of the decisions of the Federations related to athletes, both on domestic and international issues.

We observe differences between Lex Sportiva and international law on fundamental issues related to the nature and quality of the law itself. This again disputes the position that Lex Sportiva is merely a category or subspecies of international law (Panagiotopoulos, 1999; 2002).

We are before another species of international legal system which cannot be a simple category or a diversification of international law. Between the system of Lex Sportiva and public international law there is no conflict because there is a law of private nature, internationally, which is the sports “anethnic”, that regulates a field of relations that could regulate the public order5 to apply the provisions of this regulation. This is another kind of law on the international level, which is parallel to international law, shares common elements, such as the general principles of law, generally in a new composition (Wali, 2010). This is not an amalgam of law, but an independent system of anethnic sports law.

The rules of this new legal order are a new system of rules derived from the composition of rules in proportion to the Lex Mercatoria (Goldman, 1987)6 , international law and domestic legal systems. When a legal system has such a binding effect and effective enforcement of its rules, then we face the same ideological dilemmas that for centuries we have been trying to solve at a domestic jurisdictional level. The theoretical debate has remained for years and the results have crystallised into principles that are fair, clear and undeniable. In any organised structure when we have a concentration of power in a few hands the solution is given by the principle of legality and the separation of powers. Prerequisite is the complete separation of the institutions that exercise legislative, executive and judicial authority, with separation of instruments and separation of powers. The separation of powers and the implementation of democratic processes must ensure the provision of an independent judicial body and the existence of effective judicial protection7. This gives cause to establishment of an international Court for Sports with special procedural rules, of state standing, in a statutory framework of international legitimacy for sport and sports activity.

ΙII. Lex Sportiva–Lex Olympica as an "anethnic" law

Sports law in the international sporting field, as Lex Sportiva-Lex Olympica, is actually private, and means that there is an “anethnic” law, which necessarily regulates an area with no geographic boundaries concerning the relationships of persons involved in international and Olympic sports and action from more countries that require coordination in their activity within their States. That is, the Lex Sportiva-Lex Olympica, a really "anethnic" law internationally, to which, however, the theory does not give special power (Panagiotopoulos, 2011). Nevertheless, it constitutes a “sui generis” sports law legal order imposed in the sports world heteronomously, through these international sports organisations (Panagiotopoulos, 1991; 1993).

This new kind of law, Lex Sportiva-Lex Olympica as "anethnic" law of international practice, sets necessarily old accepted practices and organisational structures, establishing another perspective that reveals the insufficiency of practices of international law, in a legal order which consists of a different kind of law internationally and has an impressive feature of coercion similar to the domestic jurisdictions. Many of us (perhaps based on thoughts of CAS) 8 claim that, through the jurisprudence of the abovementioned Court, there’s has been formed a not-called Lex Sportiva but a Lex Ludica (Foster, 2006; Nafziger, 1988; Reeb, 2000; McLaren, 2001; Panagiotopoulos, 2008; 2009). With this distinction their willingness is to give -probably erroneously- a sporting dimension to this law, but they actually forget that if it is Lex Ludica it could not be Lex Sportiva and vice versa (Panagiotopoulos Dimitrios P., 2009). The Ludica concept comes from the theory of Homo Ludens of Hunginca, the game that finally has no need of rules of law (Silance, 1977; Panagiotopoulos, 2003a), and can not be regulated by the law, while in the sporting action we have absolutely regulating laws - the Lex Sportiva, including technical rules of the particular character of the sport that do not constitute area of law free of non law rules (Kummer, 1973; Karaquillo, 1989; 1995; Panagiotopoulos, 2009; 2011).

Therefore, the question of Lex Sportiva legitimising basis has been strongly posed internationally to researchers and scientists of sports law. The issue that arises is the creation of an international legal framework for the adoption of law rules relating to matters of personal and economic freedom of the parties, public order and safety and health issues of the athletes and people involved, in relation to which state and supranational entities have the authority to enact.

Conclusion

The rules of Lex Sportiva-Lex Olympica and the quality of the content of these norms with their particular characteristics in the international context of practice, demonstrate that sports law, is not a subcategory of international law.

Lex Sportiva-Lex Olympica, is another kind of law resulting from a synthesis of characteristics of international law (subject, object and content regulations) and internal characteristics of domestic legal orders (effective mechanism of coercion, automatic incorporation norms in national laws exclusive and binding jurisdiction of judicial bodies).

This new kind of international law posesses, necessarily, old accepted practices and established organisational structures to another perspective that exists in parallel with international law and constitutes a sui generis sports law international legal order; that is imposed in an heteronymous way on the sporting world from these international organisations (Panagiotopoulos, 2011; 1991; 1993).

International Sports Law consists of the rules of international acts and conventions of bodies that are governed by rules of international law such as international treaties and acts on Sport, the rules of the WADA Code and the International Charter for Sport but not of the rules by Lex Sportiva-Lex Olympica. The need for fundamental changes in the organisation of international sport practice under the principle of legality becomes imperative, via a constitutional charter for sport with international jurisdiction.

As a step in this direction, during the Sports Law conference in Moscow, 2011, the International Association of Sports Law (IASL) decided to adopt an international sports charter. A draft paper outlining this has been developed by a Committee under Professor Dimitri Rogachev. This Charter will be completed at the IASL Conference to be held in Bali in October, 2013, in order to constitute an international legal instrument for adoption by the international community, in the framework of the United Nations, to apply as the basis of international sports law.

Endnotes

1. For a more extensive bibliography on sports law, see: http://iasl.org/pages/en/sports_law_index/sports_law_bibliography.php

2. Typical example of that theory is the lex mercatoria as a foundation of international commercial practice. For the special nature of this autonomous legal order.

3. For the practice of CAS for applicable laws and the enforceability of its decisions, see ibid pp. 192-203.

4. Considering all of the above, the notion expressed by J. Nafziger that "lex sportiva is the product of only a few hundred arbitral decisions within a limited range of disputes (…) It is still more of a lex ferenda than a mature lex specialis" seems unjustified. As much as we disagree regarding this opinion; Lex Sportiva exists with the already established rules and is not created. These decisions only state in the present moment their devotion to the international sports system and less their interest to formulate case law, i.e. to subvert the rules of lex Sportiva, meaning to force the actors to change the rules in accordance with the operative part of the judgment. For the obvious existence of lex sportiva in the international sports domain, compare Dimitrios Panagiotopoulos as above.

5. This ‘outside of nations’ sporting character of law is not identical with national law but has a substantial similarity in Community legal order, which is located midway between the legal systems of the Member States and the international legal order, borrowing elements from all, while remaining independent of them; described as "Supranationalität" and "supranationalité" in German and French literature, respectively. In this case, the term more appropriate is anethnic law, or Lex Sportiva-Lex Olympica.

6. Lex Mercatoria: A creation of a set of customary rules and general principles, which constitute an autonomous legal system capable of governing in a meaningful way the international trade, although not referring to a particular state legal system.

7. Under the conditions imposed by Article 6 of the ECHR.

8. See, CAS decision no. 98/200 according to "[...] Sports law has developed and established through the years, mostly through the arbitration dispute resolution, a set of unwritten legal principles - rather like lex mercatoria for sport, or else a lex ludica - in which national and international federations have to obey. [...] ".

References

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Contact

Dimitrios P. Panagiotopoulos
Assoc. Professor at the University of Athens, Advocate, Attorney-at-law in Supreme Court and Council of State, Vice-Rector, University of Central Greek. President of Hellenic Center of Research on Sports Law (HCRSL) and President of International Association of Sports Law (IASL)

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E-mail: panagiod@otenet.gr
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