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| Feature | No.64 June 2013 |

Sports Law: A New Family Member

J.Tyrone Marcus

Introduction

This paper will provide an overview of the rapidly evolving branch of the law called “sports law.” It begins by addressing matters of terminology including whether the very term “sports law” should be accepted within sporting and legal circles. Further, it will outline how the jurisprudence of the Court of Arbitration for Sport (CAS) has contributed to the growth of sports law.
The paper continues by identifying new jurisdictions that are developing this legal area, and also highlight the increase in sports-related legislation. The paper closes with a brief projection on the future of sports law.

A rapid evolution

The turn of the millennium brought with it myriad changes in many spheres of life. Such was the case in the fields of academics, sports, politics, culture and the economy. About 5 years ago, the world was caught somewhat off guard when the global financial crisis affected most economies, whether directly or indirectly. Interestingly, the sports business industry seemed to have soldiered on without much hiccup, a clear indication of its power.
It is the very commercialisation of sport that has led to an almost simultaneous juridification. This latter term has been defined by Mark James as "the process by which a privately regulated sphere of activity becomes colonised by law and lawyers".1 Legal practitioners have infiltrated the sports world as a direct result of the professionalisation of the industry. Athletes, teams, clubs and sports governing bodies have become more and more aware of their legal rights and they often display great alacrity in enforcing them. Additionally, the prevalence of the scourge of doping has been accompanied by no small number of legal considerations including human rights, strict liability and the principle of proportionality.
And so the question arises: are these matters really "sports law" or is it more accurate to speak of "sport and the law"?

Sport and the Law or Sports Law?

"We have chosen the title for this book to give expression to our view that the time has come for the term " sports law" to become accepted as a valid description of a system of law governing the practice of sports. We are conscious that the term is not yet universally accepted among lawyers. Nor is it in common use among practitioners or administrators of sport."2

The above opinion was expressed by authors Michael Beloff Q.C., Tim Kerr and Marie Demetriou, as they penned the first edition of their legal text entitled "Sports Law" back in 1999. Over a decade ago, they held the view that sports law had evolved into a bona fide arm of the law, with specific legal regulations and rules being developed that are unique to sport. Holding the opposite view was well respected academic and author of "Sport and the Law," the late Edward Grayson, who spoke of ‘the arcane, arid and artificial argument about whether there is a law of sport or sports law.3 There are supporters on both sides of the divide.

The issue of sport’s uniqueness has itself generated significant debate especially at the level of the European Union (EU). Prominent international sports federations like FIFA4, UEFA5 and the IOC6 have been among the loudest advocates of the ‘specificity of sport’ concept, claiming that sport’s special nature should, to a large measure, make it exempt from the application of EU law.

Their efforts, evidently, have not gone in vain as Article 165(1) of the Treaty on the functioning of the European Union states that the ‘Union shall contribute to the promotion of European sporting issues, while taking account of the special nature of sport, its structures based on voluntary activity and its social and educational function’ [Emphasis added]. While many will agree that there are limitations of this new EU competence on sport, it is still considered a partial victory in the fight to recognise sport as unique and special.

Notwithstanding the divergent opinions on the true status, scope and content of sports law, there is virtual unanimity in accepting that the marriage of sport and law has occurred and there are positive signs that this will be a long-lasting relationship.

Domestic, global, national and international sports law

Such has been the evolution of the law relating to sport that sui generis terminology continues to evolve. Again, James' definitions are instructive. He defines the term "domestic sports law" referring to it as "the body of internally applicable legal norms created and adhered to by national governing bodies of sport.7 Its counterpart at the international level is "global sports law" which is "the autonomous transnational legal order through which the body of law and jurisprudence applied by international sports federations is created; in particular it includes the jurisprudence of the Court of Arbitration for Sport and its creation and harmonisation of sporting-legal norms".8
These two concepts are then to be contrasted with "national sports law" and "international sports law." The former is described as "the law created by national parliaments, courts and enforcement agencies that directly affects the regulation and governance of sport or which has been developed to resolve sports disputes.9 The latter addresses "the general or universal principles of law which are part of international customary law, or the jus commune, that are applied to sports disputes".10

The burgeoning terminology is somewhat eye-catching and captures the rapidity with which the law has infiltrated sport's domain. Domestic sports law has emerged and continues to emerge as national governing bodies, be it UK Athletics in Britain, the Board of Control for Cricket in India(BCCI) on the Asian subcontinent or the Trinidad and Tobago Paralympic Committee in the Caribbean, develop and apply rules and laws to effectively administer their respective sports. National sports law seems to have a more "credible" source as this law develops out of the courts and national parliaments. In fact, James believes that national sports law is ‘the application of ‘real law’ to sport.’11 More and more countries have enacted sports specific legislation, whether those Acts of Parliament were merely sunset legislation for the purpose, for instance, of combating ambush marketing at mega-events like the Olympics or the FIFA World Cup, or whether the statutes were intended for posterity like the UK's Safety of Sports Grounds Act 1975 or the Olympic Symbol etc.(Protection) Act of 1995.

As far as global and international sports law are concerned, it is axiomatic that a starting point, especially for the former, is the analysis of the case law emanating from the ‘supreme court of world sport’, the Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland.

CAS at the centre of global sports law

‘By reinforcing and helping to elaborate established rules and principles of international sports law, the accretion of CAS awards is gradually forming a source of that body of law. This source is referred to as ‘lex sportiva.12
The jurisprudence of the Court of Arbitration for Sport (CAS) is credited with giving global sports law its body and substance. International sports law, on the other hand, goes further and is succinctly defined by Ken Foster. He notes that: ‘International law deals with relations between nation states. International sports law therefore can be defined as the principles of international law applicable to sport.13

Mitten and Opie (2011) observe that "CAS arbitration awards are globally respected adjudications, which generally are validated and enforced by national courts"14. The body of law that has developed through CAS rulings has become the core of lex sportiva. Even the Swiss Federal Tribunal, the court to which appeals from CAS are heard, albeit on very limited grounds, has recognised the validity of CAS. This pronouncement came in the Elmar Gundel decision15 when the independence of CAS was brought in question. The Swiss Federal Tribunal found CAS to be a true court of arbitration.16

Of note is the fact that the majority of the arbitral decisions at CAS are anti-doping matters, while selection criteria disputes are also common. In the lead up to the 2012 London Olympics, the CAS ad hoc Division remained a hub of activity as it dealt, inter alia, with selection disputes involving Equestrian riders from South Africa and Ireland, an Olympic qualification boxing controversy, an impasse regarding the assignment of Olympic places in the sport of canoe kayak and doping cases from canoeing and athletics.
Not many intellectual property (IP) conflicts seem to reach CAS possibly due to the role of the World Intellectual Property Organization (WIPO) in dealing with IP disputes through its Arbitration and Mediation Center. Mitten and Opie further observe that "the evolving body of lex sportiva established by CAS awards is an interesting and important example of global legal pluralism without states arising out of the resolution of Olympic and international sports disputes between private parties."17

It appears, then, that the resolution of sports-related disputes, especially through arbitration at CAS, has been the catalyst for the rapidly expanding body of case law that has shaped sports law and while the doctrine of stare decisis is not strictly adhered to by the CAS, such is the validity of its jurisprudence that subsequent panels still tend to follow previous precedents. Within sports law, a class of ‘sports arbitration law’ appears to be blossoming, founded on CAS decisions and supported by the rulings from other bodies like the American Arbitration Association (AAA) in the USA, the FIBA18 Basketball Arbitral Tribunal (BAT)and the FIFA Dispute Resolution Chamber.

New jurisdictions embracing sports law

‘It is beyond question that sports law is at its most advanced in Europe and America. Unfortunately, the same cannot be said for sports law in Asia, which lags way behind Europe and America at both the working and research levels. Thus, when we take into account the prominence of Asia on the world stage from the perspectives of economics and population, this undoubtedly illustrates the pressing need to improve and develop sports law through the region.19

This Asian lament is instructive as it probably mirrors a sentiment felt in other parts of the globe where sports law is still at its embryonic stages. Notwithstanding the passage in June 2011 of the Basic Act on Sports in Japan, Asia is still considered to be at an early juncture in the establishment of its legal framework to regulate sport.

Europe is considered to be the traditional home for sports law. In the text "The Future of Sports Law in the European Union" the authors note that the "relation between sport and law has always been very special" while asking the question "whether the EU legal order applies to sport activities"20. That question is answered with a resounding "yes" as has been confirmed in ECJ21 case law as well as the various EU Treaties. Most notably, cases such as Walrave and Koch v UCI 22, Donà v Mantero 23 and the well known Bosman 24 decision have laid the foundation for the application of EU law to sport.

In like manner, North America has both embraced and developed sports law. In that geographical region, the American Arbitration Association has been responsible for churning out significant sports legal decisions, including the landmark La Shawn Merritt anti-doping arbitral decision which was a catalyst for the eventual outlawing of the IOC's Osaka Rule and the British Olympic Association by-law, both of which were deemed to contravene the ne bis in idem principle.

It is, nevertheless, an interesting undertaking to observe the birth and growth of sports law in places like India, as well as the Caribbean region. One of the factors contributing to this expansion was the hosting of major sports events in recent years which became an occasion for developing, teaching and introducing sports law concepts.

In 2007, the ICC Cricket World Cup was hosted in the West Indies and one of the salient features was the anti-infringement programme developed to combat ambush marketing and other potential infringements of intellectual property rights. Nine(9) host nations enacted the ICC CWC West Indies 2007 Act, 2006 in that regard. Indeed, ambush marketing legislation has become a common feature of major event hosting in modern times.
In 2010, India hosted the Commonwealth Games and in the following year, the Cricket World Cup (CWC). The preparation and planning of these sporting spectacles provided an opportunity for citizens in the host nation to be educated on how the law applied to event hosting. Further, there has been useful sporting case law coming out of India over the last decade including the decision in ICC v Britannia 25involving questions over the use of the CWC South Africa 2003 logo, as well as the more recent NDTC v. ICC (Development) International Ltd 26 decision, an October 2012 in which ICC International and ESPN sought an injunction to prohibit the infringement of copyright and reproduction rights in the broadcast of cricket matches.

The emergence of judicial and academic discourses on sports legal matters in these two regions augurs well for the spread of sports law.

Sporting Legislation on the rise

Perhaps one of the most conspicuous features of the acceptance of sports law in legal and academic circles is the plethora of sports-related statutes that can be found on the global stage. It is not surprising to find such legislation in the United Kingdom, whether it is transient law like the London Olympic Games and Paralympic Games Act 2006 which was passed in preparation for the 2012 Games, or more sustainable legislation like the 1989 Football Spectators Act or the Sporting Events (Control of Alcohol) Act 1985.

Similarly, American legislation like the Ted Stevens Olympic and Amateur Sports Act 1998, the Major Events Management Act 2007 of New Zealand or the Australian Sports Anti-Doping Authority Act 2006, are expected in these developed countries with a rich sporting tradition. In like manner, France passed its Loi du Sport in 1984 while Brazil enacted its Pélé Law in 1998.

Less expected perhaps are statutes like the Sports Act of Hungary, the Namibia Sports Act or the Sports Act of Belize since these countries have not had a history of international success and prominence as compared to other regions with sports legislation. The fact that such statutory enactments exist, though, does constitute cogent proof that more governments are adopting an interventionist approach to sports regulation and are willing to engage the attention of their respective Parliaments.

Legal regulation of ethics in sport

Sports observers are neither naive nor unrealistic when it comes to embracing the fact that ethical codes are often broken in the world of sport. The evidence is most visible in the areas of match-fixing, doping, illegal betting and child protection. The Jerry Sandusky child sexual abuse conviction in the USA, the Lance Armstrong cycling debacle and the spot-fixing fiasco among three Pakistani crickets are reminders of the battle that wages on for clean and fair sport.

The issue of child protection in sport is both sensitive and delicate and has received due attention even before the Sandusky revelations. The UK regulatory approach was a holistic one, which included the introduction into law of the 2006 Safeguarding Vulnerable Groups Act. This area, admittedly, warrants the best possible legal regulation which includes a criminal law function and necessarily goes beyond the ambit of strict sports law as defined earlier.

The fight for drug-free sport has, at times, also demanded a rigid regulatory framework and the intervention of the criminal law. Many countries have enacted specific anti-doping laws including a few Caribbean territories like Jamaica, the Bahamas and Bermuda, all within the last 5 years. These laws imitate, in both content and intent, anti-doping rules and regulations existing in Australia, Canada, New Zealand and Spain. Mitten and Opie make reference to the development of international sports anti-doping law27 citing the role of 2005 UNESCO International Convention against Doping in Sport as central to this process. They further highlight the function of the World Anti-Doping Code as having ‘a significant capacity to foster appreciation of the need for a uniform international rule of law, particularly in parts of the world where international legal norms generally are not recognised, as well as a sense of global connectivity and legal harmony.28

The match-fixing threat, equally, has become increasingly pronounced in recent years, prompting many sports governing bodies to create and enforce anti-corruption codes. Spot-fixing in cricket, match-fixing in football and illegal betting in tennis are the oft-cited examples of this growing menace to sport’s integrity. Sport’s watchdogs indeed have their work cut out for them.

It was not that long ago that these matters were addressed by sports stakeholders who met in Doha, Qatar for the Securing Sport 2013 Conference. This seminar occurred mere days after England hosted the 2013 edition of Tackling Doping in Sport, another forum for assessing ethical issues in sport. The role of the law in such matters is incontrovertible and has led to significant law and policy development in the industry.

Conclusion: The Future of Sports Law

Sports law academics and practitioners will agree that the future of sports law is bright. Some advocates have already postulated theories for the development of Olympic Law29 as well as Global Administrative Law30 as core tenets of sports law in the future. As long as professionalisation and commercialisation are central to the industry, so will the law be. In the words of Simon Gardiner: ‘Viva Sports Law’31

Endnotes

1. James, Mark (2010) Sports Law, p 3

2. “Sports Law”(1999)-Beloff, Kerr and Demetriou at page 1

3. Sport and the Law Journal Volume 19, Issue 2 at page 64.

4. Fédération Internationale de Football Association, the world governing body for football.

5. Union of European Football Associations, the continental governing body for European football.

6. International Olympic Committee, guardians of the Olympic Movement

7. James, supra, p 3

8. ibid

9. ibid

10. ibid

11. James, supra, p 8

12. Siekmann, Robert (2011) What is Sports Law? Lex Sportiva and Lex Ludica, International Sports Law Journal 3-4, p4.

13. ‘Is There a Global Sports Law?’-Ken Foster, Entertainment Law, Vol.2 No.1, Spring 2003

14. Mitten, Matthew and Opie, Hayden (2011) "Sports Law": Implications for the Development of ^, Comparative, and National Law and Global Dispute Resolution, Sport and the Law Journal, Volume 19, Issue 1, p23.

15. Gundel v. FEI (1993), Swiss Federal Tribunal, 15 March.

16. ‘Sport, Mediation and Arbitration’-Ian Blackshaw, at page 152

17. Mitten and Opie, supra, p 23

18. FIBA (Fédération Internationale de Basketball Amateur) is the world governing body for basketball.

19. ‘The prospect of and need for sports arbitration in Asia-a Japanese lawyer’s perspective’ accessed February 11, 2013 www.lawinsport.com

20. Page 2.

21. The European Court of Justice.

22. [1974]ECR 1405

23. Re [1976] ECR 1333

24. Union Royal Belge des Societe de Football Association ASBL v Jean-Marc Bosman[1995]ECR I-4292

25. Quoted in ‘ICC plea for stay on use of World Cup logo rejected’-December 4, 2002

26. FAO(OS) 460/2012

27. Mitten and Opie, supra, p 19

28. Ibid p 21

29. Alexandre Miguel Mestre in ‘The Law of the Olympic Games’

30. Foster, Ken (2011) Global Administrative Law: The next step for Global Sports Law, Sport and the Law Journal, Volume 19, Issue 1, p 45.

31. ‘Sports Law’(3rd edn)-Simon Gardiner et al, p 88

References

Beloff, Kerr and Demetriou-“Sports Law”(1999)

Blackshaw, Ian-‘Sport, Mediation and Arbitration’ (2009)

Gardiner, Simon et al-‘Sports Law’(3rd edn)

James, Mark Sports Law (2010)

Mestre, Alexandre Miguel-‘The Law of the Olympic Games’(2009)

Entertainment Law, Vol.2 No.1, Spring 2003- “Is There a Global Sports Law?”-Ken Foster;

International Sports Law Journal 3-4, (2011) –“What is Sports Law? Lex Sportiva and Lex Ludica”-Robert Siekmann;

Sport and the Law Journal, Volume 19, Issue 1, (2011)-“Global Administrative Law: The next step for Global Sports Law”- Ken Foster;

Sport and the Law Journal, Volume 19, Issue 1- (2011) "Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution”-Matthew Mitten and Hayden Opie;

Sport and the Law Journal, Volume 19, Issue 2- “The Historical Development of Sport and Law”-Edward Grayson

Case Law

Donà v Mantero Re [1976] ECR 1333

Elmar Gundel v FEI(1993)-Swiss Federal Tribunal, 15 March

ICC v Britannia-[case cited in ‘ICC plea for stay on use of World Cup logo rejected’-December 4, 2002]

NDTC v. ICC (Development) International Ltd- FAO(OS) 460/2012

Union Royal Belge des Societe de Football Association ASBL v Jean-Marc Bosman[1995]ECR I-4292

Walrave and Koch v UCI 1974]ECR 1405

Legislation

Australian Sports Anti-Doping Authority Act 2006,

Basic Act on Sports 2011 [Japan]

Football Spectators Act 1989[UK]

ICC CWC West Indies 2007 Act, 2006

Loi du Sport 1984[France]

London Olympic Games and Paralympic Games Act 2006

Major Events Management Act 2007 [New Zealand]

Namibia Sports Act

Olympic Symbol etc.(Protection) Act of 1995[UK]

Pélé Law 1998[Brazil]

Safeguarding Vulnerable Groups Act 2006[UK]

Safety of Sports Grounds Act 1975 [UK]

Sports Act(Belize)

Sports Act(Hungary)

Sporting Events (Control of Alcohol) Act 1985 [UK]

Ted Stevens Olympic and Amateur Sports Act 1998[USA]

Web Resources

‘The prospect of and need for sports arbitration in Asia-a Japanese lawyer’s perspective’ accessed February 11, 2013 on www.lawinsport.com.

Contact

J.Tyrone Marcus
Attorney-at-Law

Law Chambers
31 Borde Street,
Port-of-Spain,
Trinidad, W.I.

Email:jtm.sportslegal@hotmail.com

http://www.icsspe.org/