|  | Feature | No.59 May 2010 |

Sport and Globalisation: Legal Considerations
Lauri Tarasti
The beginning of the modern Olympic Games in 1896 marked the internationalisation of the sport movement. Sports developed from a variety of national sports to an international movement of numerous sports competitions with common rules for athletes and nations. International sport manifestations were at first modest, but expanded rapidly. In the first Olympic Games in Athens there were only 245 participants from 14 countries. In 2010 the Olympic Games gathered over 10 000 participants from over 200 countries.
International sport competition has thus become global in its principles and rules. Sport, in fact, has led the internationalisation evolution over the past 100 years. Sport and athletes have succeeded in overcoming national borders when, for political or other reasons, they have been closed to others. We all remember, for example, Chinese/American ‘ping-pong diplomacy’.
International activities in sport have grown exponentially as a result of improved travel connections and globalisation. The number of world championships, continental championships, regional games, international matches and competitions have increased in all sports and also expanded to junior, veteran, and senior events. Common norms and sport rules have been from the very beginning a necessary precondition for international competition sport. In each sport, one of the main duties of the international sport federation is to maintain common competition rules. These common rules have expanded with the juridification of sport, and they concern (in international sport federations) not only competitions but also athletes’ agents, organisation of mega-events, anti-doping work, advertisements and recently broadcasting, videos, and photography.
Anti-Doping
The World Anti-Doping Code is an excellent example of new regulations which have been demanded by the globalisation of sport. Doping was defined at the beginning of the 1960s by the International Olympic Committee (IOC). The first forbidden substances were stimulants. Anabolic steroids were added to the list of prohibited substances in 1976, testosterone in the early 1980s, beta-blockers and blood-doping in 1985, diuretics in 1987 and EPO in 1990.
For many years, testing only occurred during competitions. Out-of-competition testing began in the 1980s. This also marked the beginning of world-wide, global testing. Testing at this time, however, depended on the sport concerned. International sport federations and individual countries had their own rules and systems. After many doping scandals, the IOC convened a large anti-doping congress in 1999 in Lausanne where the World Anti Doping Agency (WADA) was established. This unique world-wide foundation is based on the cooperation between sport organisations and governments.
The most significant achievement of the WADA was the World Anti-Doping Code whose first version was accepted in 2003; the second version, in force today, in 2007. In the introduction of the Code there is the explanation of the aim of the Code (www.wada-ama.org):
“The Code is the fundamental and universal document upon which the World Anti-Doping Programme in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonisation of core anti-doping elements. It is intended to be specific enough to achieve complete harmonisation where uniformity is required, yet general enough in other areas to permit flexibility on how agreed upon anti-doping principles are implemented.”
The Code is global. The battle against doping cannot succeed without global rules and global activities. However, there are still some juridical and practical difficulties in the implementation of the Code. Out-of –competition testing is a demanding task today as top-athletes are active in all parts of the world. In this connection the question on whereabouts, i.e. the obligation of a top-athlete to inform his/her address in order to make possible testing in each day, has raised practical and juridical problems concerning the privacy of a person concerned.
The WADA has 33 accredited international laboratories in the world. They examine over 200.000 tests annually.
It is also worth mentioning that governments accepted in Paris, 19 October 2005 the UNESCO International Convention Against Doping in Sport 2005. According to this Convention, governments are mandated to follow the principles of the Code. The Convention is global, but has been ratified by only a small number of countries.
Nationality
Globalisation has increased migration movements considerably for many reasons: immigration, common labour markets as in the European Union, studying, marriages, international trade, labour and mobility. A global sport labour market has emerged in professional sports, especially team sports, where national teams often include many foreign players, sometimes the majority of players. Often it is easier to obtain a work permit in sport than on the regular labour market. Transfers of players have been internationalised. At the same time, the sport federations of these sports have tried to regulate in their rules the transfer of athletes from one team to another. In the famous Bosman Case, the European Court of Justice (15.12.1995 – C-415/93) pointed out that EU legislation on the free movement of workers must apply also to sport. After this ruling the International Football Association (FIFA) and the Union of the European Football Associations (UEFA) were compelled to change their rules on transfer compensations.
Regardless of the above-mentioned globalisation trend, nationality is still a basic factor in sport. Sport has been established on national basis; not only do athletes compete with each other but also their countries do as well; flags, national anthems and other national symbols are visible everywhere in sport, especially in great international games. In team sports countries constitute national teams playing with each other. National spirit is high in the sport audience.
Sport nationality is, however, not the same as citizenship or state nationality. The rules on the sport nationality of athletes have solved the question of the representation rights of athletes. These rules differ to some extent according to international sport federations. Article 42 of the Olympic Charter is a good example of sport nationality rules.
”Any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor. All disputes relating to the determination of the country which a competitor may represent in the Olympic Games shall be resolved by the IOC Executive Board.”
By-law of Article 42 completes the prescription as follows:
”A competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championship recognised by the relevant IF, and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country. This period may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case.”
An athlete who has dual citizenship (as is increasingly the case) can choose which country he/she wishes to represent. But after representing this country in an above-mentioned great competition, he/she will be under the same rules as other athletes.
Increased international migration has also made it necessary to rewrite in the rules of many sports the definition of an international competition and to deliberate, whether foreigners have the right to take part in national championships of the country in question.
For example, the rules of the International Association of Athletics Federations (IAAF) (Rule 2.7) which include many specific rules on international competitions, state that:
”Members may authorise national competitions, and foreign athletes may participate in those competitions, subject to Rules 4.2 and 4.3. If foreign athletes do participate, appearance fees, prize money, and/or non-cash prizes for all athletes at such national competitions shall not exceed a total amount, or an individual amount for any one event, as determined by the Council.”
The maximum total sum of the prize money in national competitions in athletics has been 15 000 dollars for the entire competition, and the maximum sum for an individual event of the competition 5 000 dollars.
National championships are under the authority of the national federations. Generally the condition for participation is the citizenship of the country of the federation. However, in some sports open national championships are organised to which foreigners have the right to take part, at least if they are the members of a club in this country.
Court of Arbitration for Sport
One of the most important legal consequences of the globalisation is the establishment of the Court of Arbitration for Sport (CAS). It is a world-wide court in sport disputes, unique of its kind. The IOC ratified its statutes in 1983 and it gave its first decision in 1985. The idea was, and still is, to keep sport disputes inside sport and not to submit them to the general civil courts.
In athletics the Arbitration Panel, an internal court of the IAAF, has already started its activities in 1984 but the Panel was finished in 2000, when the IAAF moved to use the CAS. Many international sport federations still have their own internal appealing instances today, but the CAS is normally the last instance.
The status of the CAS was emphasised when the World Anti-Doping Code was accepted. The CAS is the last juridical appealing instance in international doping cases in accordance with the Code. The CAS gives the final interpretation on the Code. The majority of the cases before the CAS have been doping cases.
The Code of Sports-related Arbitration in the CAS includes four procedures:
-the ordinary arbitration procedure
-the appeals arbitration procedure (consisting of doping cases)
-the advisory procedure
-the mediation procedure
The seat of the CAS is in Lausanne, Switzerland, and the CAS has regional offices in Sydney, Australia and New York City.
The CAS has established ad hoc divisions for large events such as the Olympic Games with the task of settling, within 24-hour time-limit, any disputes arising during the Games.
The CAS has nearly 300 arbitrators of which three usually sit on the Panel for a single case. The CAS has rendered approximately 75 decisions a year.
Sport Law
Globalisation has had a great impact on sports law. When the rules in each international sport federation are the same for the whole world, the World Anti-Doping Code is valid in the same way in all sports and all countries, and when the world-wide last instance in the most sport disputes is the CAS, then a big part of sports law has been globalised.
Also commercialisation and professionalisation have emphasised this trend in sport. Sponsors are often international companies which act globally. Sport lawyers must today know the effect of internalisation and take into account international rules, including the rules of international trade (in conducting their duties as sport lawyers).
The globalisation of trade has also influenced many of the activities of sport lawyers. They deal today mostly with disputes between parties in working agreements, in sponsorship contracts, and in intellectual property rights. Questions are often the same as in international trade.
The above-mentioned 300 arbitrators of the CAS represent all parts of the world. This can broaden the knowledge on sports law and help to guarantee the harmonisation of sports law in various countries. The two existing international sport lawyers associations can have the same type of influence: the International Association of Sports Law (IASL) (www.iasl.org) and the International Sport Lawyers Association (ISLA) (www.isla-int.com).
Organisations
Globalisation has resulted in structural changes in sport organisations. The number of members of the international sport federations has increased remarkably and exceeds 200 members in the largest federations (for example the International Basketball Federation has 214 members and in athletics the IAAF has 213 members). The International Olympic Committee (IOC) has 205 National Olympic Committees.
New sports have created their own international sport federations. Different actors in sport have their own world-wide organisations. For example, sport physicians have the FIMS (the International Federation of Sports Medicine), coaches the ICCE (the International Council for Coach Education), agents in athletics the Association of Athletics Managers, soldiers the International Military Sports Council (CISM), students the International University Sports Federation (FISU). ICSSPE (the International Council of Sport Sciences and Physical Education) is a world-wide sport scientific organisation with over three hundred member organisations from different parts of the world. It organises, together with the IOC, the International Paralympic Committee and the FIMS, the ICSEMIS Convention before the Summer Olympic Games. ICSEMIS is a world-wide sport scientific congress with over 2000 participants. The next congress will be organised in 2012 in Glasgow.
The IOC and the International Sport Federations own all rights to organise the Olympic Games and respectively the World Championships. These competitions are their main source of income. A complicated juridical system has been created in the IOC on how to decide upon the (local) organiser of the Olympic Games. The IOC signs the Host City Contract with the host city and the National Olympic Committee of the host country. The Contract includes all legal requirements and condition for organising the Olympic Games. Also the contract on the World Championship between the local organiser and an International Sport Federation is normally a broad and juridically complex document.
Intellectual Property Rights
One juridical consequence of globalisation in sport has been that intellectual property rights have become an important source of income for athletes, sport federations, organisers of big events, sponsors etc. The technical development, especially in information technology, has however made it difficult to control the use of these rights.
Sport is not in a special position in regard to intellectual property rights. The same legislation applies to sport as in the other areas of society. The sport organisations themselves have tried to clarify how this legislation in intellectual property rights as on copyright, trademark, TV-rights and other audio-visual properties can be applied to sport.
A good example of this is the Olympic Movement. The most recognisable symbol of the IOC and the Olympic Games is the Olympic symbol, five interlaced rings which has been protected in various ways by the Nairobi Treaty on the Protection of the Olympic Symbol including 47 contracting parties, domestic legislation and trademark protection. The IOC owns all rights of the Olympic symbol and has granted the National Olympic Committees the opportunity to use one part of these rights in their activities.
Other examples are Olympic-related symbols as mascots, the organising committees own emblem, the name of the host city with the year (e.g., Beijing 2008, Vancouver 2010). (see General Overview of Intellectual Property Rights of the International Olympic Committee written by Howard M. Stupp, IOC Director of Legal Affairs, the International Handbook 2006 of the World Federation of the Sporting Goods Industry)
TV- and radio-revenues, i.e. audiovisual rights, are the main source of income of the Olympic Movement. Internet, telephone cameras and other new technology have, however, made these rights difficult to supervise. It is easy to include photos or short videos in personal blogs, for example the final of 100m in the Olympic Games. These blogs are available globally and they are normally accessible by the public.
The IOC prepared for the Beijing Olympic Games in 2008, the IOC Blogging Guidelines for all those who were accredited to the Games. The IOC as a rule authorises to use still photographic pictures but not moving images. As a condition to be accredited, the athletes, coaches and officials must agree that all photographs and moving images taken by them at the Olympic Games shall be used only for personal and non-commercial use, unless prior written consent is obtained from the IOC. As to spectators, similar wording is contained on the back of the entrance ticket. The spectators must abide by in order for them to be granted access into the Olympic venues. In order to supervise this system the IOC ordered an expensive computer programme to follow video in the most important websites such as YouTube, Daily Motion, video.google, and video.yahoo. Olympics, 100m and such words were used as keywords. One million two hundred thousand such pages were found, from which 8 000 were deemed “dangerous”. The IOC sent to such blog owners a request, translated to 10 languages, to close these pages immediately with the risk of litigation.
This kind of ruling of intellectual property rights stretches also to the participants´ personal affairs. Paragraph 3 of the Bye-law to Rule 41 of the Olympic Charter states that
Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sport performances to be used for advertising purposes during the Olympic Games.
Betting
Betting is a major side operation of sport. Betting has at least two advantages for sport: it increases the interest towards sport and it brings incomes for sport, because in many countries sport often receives a considerable part of the profits of betting. It is usual that betting companies are state-owned and in a monopoly position. Betting and its problems concentrate on those sports where money moves and betting is wide, mainly on team sports. The problems of betting are smaller in individual sport but still more difficult to detect than in team sports. The influence of betting on fixing of matches was recognised a long time ago.
Betting has become global. In Asia, bets have been made on football matches in Europe, for example on the Belgian or Finnish national football matches. Big sums of money change hands. The globalisation of betting results in problems. How can fixed matches and cheating in betting be prevented, when those who bet and the object of betting are in different parts of the world? The FIFA and the IOC as well as the betting companies and their organisations such as the World Lottery Association have tried to create an early warning system, where attempts to make arrangements on betting objects is supervised on the basis of statistical and other information. Additional problems have arisen in internet betting, which happens during a match or competition (on-line-betting). Legislation on betting is under preparation and scrutiny in many countries.
Summary
Globalisation has had substantial influence on sport. However, it is difficult to estimate which part of the development of sport has been caused by globalisation and which part by commercialisation, technical development, societal changes or other factors. It is thus difficult to assess which consequences of globalisation are purely juridical and which are economic or social. Often the consequences interconnect.
Globalisation is a reality in sport today. However, it does not seem likely that we will see any more major remarkable steps in globalisation. This trend has reached its end in most respects. The situation could only change if national impacts on sport change.
Contact
Lauri Tarasti
Supreme Administrative Court
Helsinki, Finland
Email: lauri.tarasti@kolumbus.fi

http://www.icsspe.org/