Sports Law

Simon Gardiner, Roger Welch, Simon Boyes, Urvasi Naidoo

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136588129
• Edition: 4
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Long established as the market leading textbook on sports law, this much-anticipated new edition offers a comprehensive and authoritative examination of the legal issues surrounding and governing sport internationally. Locating the legal regulation of sport within an explicit socio-economic context, this refocused edition is divided into four core parts: Governance & Sport; Commercial Regulation; Sports Workplace; and Safety in Sport.

Recent developments covered in this edition include:

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• EU competition law interaction with sport under arts. 101 and 102 of the Treaty on the Functioning of the European Union;

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• the current World Anti-Doping Agency code;

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• analysis of the recent Court of Arbitration for Sport Jurisprudence;

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• reforms of the transfer system in team sports;

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• anti-discrimination provisions in sport;

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• engagement with match fixing;

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• a focus on the legal context of 2012 London Olympics.

Essential reading for students studying sports law or sports-related courses, this textbook will also prove useful to sports law practitioners and sports administrators in need of a clear companion to the field.

The Regulation and Governance of Sport

DOI: 10.4324/9780203180884-1

1. Cultural, Historical and Organisational Perspectives on UK Regulation of Sportv
2. Theoretical Understanding of the Regulation of Sport
3. The Legal Regulation of Sports Governing Bodies
4. Sport and the Law of the European Union

Cultural, Historical and Organisational Perspectives on UK Regulation of Sport

DOI: 10.4324/9780203180884-2

Chapter Contents

• Introduction
• What is a Sport?
• History of Sport
• Historical Perspectives on Sports Regulation
• The Victorian Age: Origins of Modern Sport
• The Contemporary Signifi cance of Sport
• Sociology of Sport
• Framework of Sport in Britain
• Conclusion
• Key Points
• Key Sources

Introduction

Compared with most other European countries, the British state’s formal involvement in sport has been fairly minimal. Sports bodies are treated as autonomous independent bodies and self-regulation has been the tradition. The state has played a passive role even when promoting and effectively ‘managing’ sport. Within Europe a distinction can be made between northern countries, which share this approach, and southern ‘Mediterranean’ countries, where there is a tradition of specific regulation.¹ As will be stressed below, there has been a long history of legal prohibition of certain types of sport in Britain. Additionally in recent years, there has been a steady move to greater regulatory involvement. ²

1 See Council of Europe, Study of National Sports Legislation in Europe (1999); see details of a number of European countries including Michel, A, ‘Sports policy in France’, in Chalip, L, Johnson, A and Stachura, L (eds), National Sports Policies: An International Handbook (1996), Westport, CT: Greenwood. 2 See Lewis, A and Taylor, J (eds), Sport: Law and Practice, 2nd edn (2008), Haywards Heath: Tottel, pp 1–53.

The lack of recent success in Britain’s national sporting teams and the sporadic accomplishment of its individual sportsmen and women have intensified the debate concerning the effective role that the state can play in sport. Increasing pressure has been brought to bear upon the state to provide greater financial and material assistance to British sport through national lottery funding, for example.

Sport is going through significant changes: the context within which law has assumed an increasingly important role in regulating sport will be analysed during this chapter. The chapter is divided into four sections. First, a question will be posed, namely ‘What is a sport?’ This will be answered by both looking at various social definitions of sport and the historical origins of its development and identification. Second, the historical regulatory environment of sport in Britain will be examined. Third, the cultural and political significance of sport will be evaluated together with a discussion of various sociological theories that have developed to explain the role that sport plays in society. Sport is a truly global phenomenon. As a social activity, whether it is in terms of participation as a recreational pastime, competitive playing at amateur levels, the elite and mainly professional level or in terms of spectating, sport assumes immense cultural significance.3 Fourth and last, a consideration will be made of the framework through which the state may intervene in British sport. Such intervention can be through various methods including financial support and the promotion of sport as an activity that has health and social benefits. The use of sport as a form of social policy to fight crime and social exclusion will also be considered, and the role of bodies such as the Sports Councils will be briefly discussed.

3 For an examination of many of the cultural issues concerning sport see Tomlinson, A (ed), The Sports Studies Reader: Sport, Culture and Society (2001), London: Routledge; Cashmore, E (ed), Sports Culture: An A–Z Guide (2000), London: Routledge; and Making Sense of Sport, 3rd edn (2000), London: Routledge.

What is a Sport?

This is a fundamental question that needs to be posed to help demarcate the disciplinary area of sports law. A good starting point is to see sport as a human activity that exists somewhere along the continuum from work to play. There is a need to demarcate sport from recreational activities in general and games and play specifically. But an attempt at a definition reveals the dynamic and changing nature of sport. In modern elite sport, professionalisation has led to an increasing transformation of sport into a type of work with the world of ‘amateur play’ seemingly contracting quickly.4 There are also a number of anomalies in the way participation in sport is described. Some sports such as football, rugby and golf are seen as being ‘played’, and the participants are ‘players’.

4 This can be illustrated by the move away from the distinction between amateurs and gentlemen in cricket shortly after the Second World War and the recent professionalisation of rugby union during the 1990s.

These are the sports most akin to work. There are other sports where it is uncommon to talk of those involved as being players; with fishing, archery and hunting the sport is not ‘played’ but, in contrast to the former group, it is closer to play and leisure than work.

There are positive reasons for needing to provide definitional clarity. An activity defined as a sport has a number of financial and legal advantages. Where are the lines going to be drawn between sport, games, recreation, leisure, work and play?

Social Definition

A historical examination of the development and meaning of sport provides a powerful view of what we mean by sport and its social import. This will be addressed shortly. However, the historical perspective also needs a clear social context. The use of the term sport in its expansive meaning is one that is a product of modernity. The definitional problems are alluded to by Slusher when he analogises between sport and religion:

Basically sport, like religion defies definition. In a manner it goes beyond definitive terminology. Neither has substance which can be identified. In a sense both sport and religion are beyond essence. 5

5 Slusher, H, Men, Sport and Existence: A Critical Analysis (1967), Philadelphia: Lea and Febiger.

There is a considerable body of sociological and cultural literature concerning the definition of sport.⁶ Coakley believes:

Sports are institutionalised competitive activities that involve vigorous physical exertion or the use of relatively complex physical skills by individuals whose participation is motivated by a combination of intrinsic and extrinsic factors.⁷

Singer similarly sees sport as:

6 See Loy, J, ‘The nature of sport: a definitional effort’, in Loy, J and Kenyon, G (eds), Sport, Culture and Society: A Reader on the Sociology of Sport (1969), New York: Macmillan; Coakley, J, Sport in Society: Issues and Controversies (1994), 5th edn, St Louis: Mosbey; Sprietzer, E, Social Aspects of Sport (1967), Englewood Cliffs, New Jersey: Prentice Hall; Mandel, R, Sport: A Cultural History (1981), Oxford: Clarendon; and Dunning, E (ed), The Sociology of Sport: A Selection of Readings (1971), Oxford: Blackwell. 7 Coakley, J, Sport in Society: Issues and Controversies (1994), St Louis: Mosbey; p 21.

… a human activity that involves specific administrative organisations and historical background of rules which define the objective and limit the pattern of human behaviour; it involves competition and/or challenge and a definite outcome primarily determined by physical skill.⁸

8 Singer, R, Physical Education: Foundations (1976), New York: Holt, Rinehart and Winston.

An exact definition of sport seems to be impossible, but some common elements of the existence of a recognisable organisational structure, rules, physical exertion and competition need to be present. It is important to have clear definitions of the concepts that are being studied. In the sociology of sport a good working definition helps an understanding of the role that sport has as a part of social life. Similarly, the study of sport and the law needs the same definitional clarity.

One approach to a clear definition of sport is to look at the level of the sporting activity. Are games or individual pursuits at elite level more likely to be termed sport than kids playing on a patch of wasteland? Do we want to develop a definition of sport that differentiates it from mere physical recreation, aesthetic and conditioning activities and informal games? There are considerable problems in attempting to provide answers. For example, what of activities such as mountain climbing, which has been developed as an indoor competitive ‘sport’ of wall climbing, and mountain biking, an activity that takes place within a continuum from the use of bikes being purely about mobility, through their use for recreational leisure, to involvement in highly competitive national and international competitions such as the Tour de France. It may also be important to consider the subjective intention and motivation of the participant; this may distinguish between involvement in sport rather than mere play or entertainment.

Using the above guidelines, can we define activities such as jogging as a sport? What about synchronised swimming, darts, fox hunting, skin diving, chess? What about hybrid sports⁹ and those that are more likely to be viewed as forms of recreation and entertainment?¹⁰ One common claim is that sport needs some notion of being a physical activity, in that there is ‘the use of physical skill, physical prowess or physical exertion’.¹¹ Chess and other board games clearly need a minimal amount of physical effort either in terms of complex physical skills or vigorous exertion; the skills required are essentially cognitive.¹² The international federation of chess has been recognised by the IOC and the sport has complied with anti-doping requirements under the World Anti-Doping Code. However, it has not yet been officially classified as an Olympic sport.

9 For example, bicycle polo, octopush – a form of underwater hockey – and horseball, an amalgam of rugby, basketball and horse riding. See ‘Horsing around with a ball’, The Times, 21 April 1997. 10 Note also World Wrestling Entertainment (WWE, formerly the WWF) professional wrestling, ballroom dancing and dragon boat racing. 11 Op. cit., fn 7, Coakley (1994), p 13. 12 See ‘Chess – a sport or just a game’ (1999) 2(2) SLB 16.

Such a definitional approach emphasising physical effort could potentially include all physical activities, including sex, as a sport! In R v Brown,¹³ a case involving the legality of consensual sadomasochistic homosexual activity, an argument was expressed that the participants might have gained protection and exemption from criminal liability under the law of assault if they could be seen as being involved ‘in the course of properly conducted games or sports’.¹⁴ The application of ‘rules of play’, which evidence showed often existed in sadomasochistic sex, and the ‘policing’ by a referee were suggested as characteristics of a would-be sport.

13 [1993] 2 All ER 75. 14 This exemption from liability short of grievous bodily harm (serious injury) that was consented to factually during a sporting activity was laid down in Attorney General’s Reference (No 6 of 1980) [1981] 2 All ER 1057.

To distinguish sport from recreational activity, it is necessary to consider the context or conditions of the physical activity and to determine whether it needs to take place in some institutionalised situation.This can help distinguish between formally organised competitive activities compared with those carried out in an ad hoc unstructured form; for example, the distinction between a Premier League football match and a number of children kicking a football in a park. Elements that characterise the former are perhaps standardised rules, official regulatory agencies, the importance of organisational and technical aspects and the learning of strategies, skills and tactics by participants.

This process can be applied to the codification of the two branches of football, rugby and association, in the late nineteenth century. It can also be illustrated with the emergence and institutionalisation of body-building, which has developed from an activity based on aesthetics and health objectives to one open to competitions and being considered a sport. Such an approach produces an essentially objective understanding of a sport. Meier argues that subjective perceptions of participants are irrelevant in determining the nature of sport.¹⁵ Some writers, however, have considered that the motivations of the participants in the sport help determine its meaning. Coakley claims that a ‘play spirit’ based on the internal motivations of the participant is an important element in determining whether the activity in question can be termed as a sport.¹⁶ Huizinga describes play as:

15 Meier, K,...