Sports Law

Mark James

• Publisher: Red Globe Press
• Year: 2017
• Print ISBN: 9781137559258
• eBook ISBN: 9781137559272
• Edition: 3
• Topic: Law
• Subtopic: International Law
• Index: Law

This textbook provides a comprehensive overview of the ways in which the law has impacted on how sport is played, administered and consumed. The author writes in a clear and engaging manner, tracing the origins and sources of this rapidly evolving subject and drawing examples from a wide range of professional and amateur sports to illustrate the important current debates and topics of interest.

The book covers a wide-range of topics from participant and non-participant liability, fighting sports and their legality, and liability for stadium safety and disasters. The final section of the book takes in the very latest developments in mass-event sport and the growing but fundamental area of sports commercialisation.

Part I

Origins and sources of sports law

Chapter 1

What is sports law?

Key terms

Juridification – the process by which a privately regulated sphere of activity becomes colonised by law and lawyers.

Domestic sports law – the body of internally applicable legal norms created and adhered to by national governing bodies of sport.

Global sports law – 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.

National sports law – the law created by national parliaments, courts and enforcement agencies that directly affects the regulation or governance of sport or which has been developed to resolve sports disputes.

European sports law – the law created by the institutions of the European Union, in particular the Court of Justice of the European Union, that affects the regulation or governance of sport or which has been developed to resolve sports disputes.

International sports law – the general or universal principles of law which are part of international customary law, or the jus commune, that are applied to sports disputes.

National governing body – the body responsible for the governance and administration of a sport, or a group of related sports, at national or state level.

International sports federation – the body responsible for the governance and administration of a sport, or a group of related sports, at the continental or world level.

1.1 What is sports law and where do we find it?

UK law has no formal definition of sport and consequently no formal definition of sports law. Although we know what sport is when we see it and when we play it, we struggle to define it in a way that is neither so wide as to include all forms of physical exercise nor so narrow as to exclude specific activities that are normally considered to be sports. The High Court has held that bridge falls outside the English Sports Council’s definition of sport, as it lacks the necessary physicality; however, the Sports Council’s reliance on the European Sports Charter’s definition of sport is only for its own funding and regulatory purposes (R (on the application of English Bridge Union Ltd) v English Sports Council [2015] EWHC 2875). This leaves open whether other mind sports, or the rapidly emerging field of esports, could fall within traditional definitions of ‘sport’ in the near future.

The same can be said of sports law; we know what it is, but we struggle to define it when called upon to do so. The quest for a definition of sports law is complicated further by ongoing debates about the most appropriate name for the subject and the proliferation of sub-names and sub-branches that have been claimed for it. Some argue this is nothing more than the observable phenomenon of ordinary legal principles being applied to sports disputes and that we are therefore discussing sport and the law; the law as it applies to sport. On the other hand, it is claimed there is, or there is evolving, a common underpinning or unifying approach to sports disputes that overtly takes into consideration the sporting context to justify how and why the law applies differently to sport; this is sports law.

Further terminological confusions arise through the use of a number of Latin epithets that provide a veneer of gravitas to the subject. Whether in its anglicised or Latinised form, as lex sportiva, the definition of sports law remains highly contested and, in some quarters, its existence as a discrete discipline continues to generate debate. Siekmann and Soel have documented the etymology and scope of the various terminologies, though sports law scholars often use the terms interchangeably. Despite this lack of agreement, the systems of sporting justice continue to juridify into a form of transnational law that operates to a significant extent outside the review of national courts.

Increasingly, there is an acceptance of the meanings and usage of some of the more commonly used of these terms. International sports law, as a branch or form of international law, is the law that can be applied by national and supranational courts and includes the elements of public international law and European Union (EU) law that are engaged by sport. Transnational, or global, sports law is the private, autonomous self-regulation of sport by sport; it exists outside traditional definitions of law and has an appearance of immunity from formal law and the potential to operate transnationally. Lex sportiva, perhaps the most contested of the various terms, is used either co-extensively with transnational or global sports law, or to indicate a specific subset thereof, namely the jurisprudence and interpretative norms of the Court of Arbitration for Sport (CAS).

Further, Olympic law (sometimes, lex Olympica) does not fit easily within any of these definitions as it is the forced creation of national law in the jurisdiction hosting the Olympic Games. In fulfilling the requirements of the International Olympic Committee (IOC), an entirely separate category of transnational law comprising the national law forced into existence by the transnational norms created by a private transnational organisation is evolving (see further, Chapter 14). What this confusion highlights is that, regardless of what this subject is called, the law is being applied to sports disputes and is providing or influencing the frameworks of sports dispute resolution and in return sports cases are bringing often complex legal issues directly into the public consciousness.

1.1.1 Why has the law become involved with sport?

The law’s intervention in matters relating to sport prior to the 1980s was erratic and piecemeal. Until this time, there had been a disproportionately large number of prosecutions where the legality of boxing and prize fighting was explored and a few notable examinations of contractual and financial issues. This latter group of cases, including the clarification of the tax status of benefit events that were held for professional cricketers (Seymour v Reed [1927] AC 554) and a challenge to the transfer system in football (Eastham v Newcastle United Football Club [1964] Ch 413, see further, Section 11.4.2.4) paved the way for the recent explosion in sports-related litigation. As a result, almost every field of law has infiltrated almost every aspect of sport, from the obvious freedom of movement claim in Union Royal Belge des Sociétés de Football Association ASBL v Bosman (C-145/93) [1995] ECR I-4921 (see further, Section 12.2) to the obscure regulations concerning advertising in the London Olympic and Paralympic Games Act 2006 (see further, Section 14.3), and from the politically motivated restrictions imposed on the movement of football fans in the Football Spectators Act 1989 (see further, Chapter 10) to the faintly ridiculous trial to determine whether a father and his five-year-old son kicking a ball to each other in a park constituted a game of football (Lawton v Fleming-Brown [2006] EWHC 3146). There is now no doubt that sport is subject to the law and that this subjection has not resulted in the end of sport as we know it; a claim that is made by administrators and commentators almost every time that a high-profile sporting case reaches the courts.

The evolution of sports law is the product of a series of unrelated developments that were occurring in both sport and society from the late 1970s onwards and which combined to create the perfect conditions from which sports law could emerge. The commercialisation and commodification of sport during this period attracted law and lawyers like no previous period in sports history. As sport became more commercial, more money was invested into it and increased profits were created, which in turn led to disputes that required law and lawyers to resolve them (Greig v Insole [1978] 1 WLR 302, see further, Section 11.3.2). Alongside this commercialisation the marketing, branding and repackaging of sport became more sophisticated; games and events became products or commodities that could be sold to the highest bidder, with the paradigmatic example in British sport being the creation of the Premier League in 1992. One by-product of these commercial developments was the great strain that they caused to the antiquated governance structures of many national governing bodies. Systems that had been designed to organise amateur sport in the latter part of the nineteenth century could no longer cope with the demands imposed on them by the newly professional players who challenged their procedures in court and forced them to modernise (Jones v Welsh Rugby Union (unreported) Court of Appeal (Civ), 19 December 1997, see further, Chapter 2).

Developments in the political sphere occurred at both the national and European levels. The stadium disasters of the 1980s finally forced the governments of the time to take legislative action and create regulatory frameworks that ensured that football stadiums became safer places for spectators to watch matches and football hooligans could be monitored and punished more effectively. At the same time, the European Commission had been warning UEFA that the transfer system did not comply with EU law; UEFA’s failure to act on these warnings eventually resulted in the Bosman decision and the many cases that have followed it.

The only aspects of sport that are effectively immune from legal intervention are the rules and codes of ethics that regulate the actual playing of games. National and European courts as well as the CAS have regularly stated that they will not review the decisions of match officials that are taken during the course of a game (Mendy v Association Internationale de Boxing Amateur CAS OG 1996/06, see further Section 3.2). The aim of such an exemption is to uphold as far as is possible the authority of the match officials and to preserve the finality of the end of game result. The only time that the courts will consider such a claim to be justiciable is where their application of the rules of the game promotes illegality in some way, or is obviously fraudulent.

Thus, the law has engaged with sport for a variety of reasons. A combination of changing circumstances in sport and society, together with the pursuit of specific political aims at national and EU levels, has been responsible for the emergence of sports law as such an important field of legal study and practice. This knowledge of the impact of the law on sport has fuelled further litigation as lawyers apply the lessons that they have learned in one area of sports law to others that have not previously been attempted. In response, national governing bodies (NGBs) and international sports federations (ISFs) have amended their rules and procedures as a result of risk assessment strategies and in order to comply with the rules of natural justice in an attempt to avoid further litigation. This enables the discussion to move on from why we have sports law to where we can find it.

1.1.2 Sources of sports law

Which still leaves the all-important question: What is sports law? The most effective way to answer this question is to begin by identifying the various sources of sports law and the jurisprudence that each is developing. Building on the nomenclature devised by Foster in ‘Is there a Global Sports Law?’ (2003) and developed throughout Siekmann and Soel’s Lex sportiva: What is Sports Law? (2012), two main groups of sports law sources can be identified. The first group reflects the application of legal principles by the tribunals granted jurisdiction to hear disputes by the national governing bodies of sport and by international sports federations; these are referred to here as domestic sports law and global sports law. These two sources highlight the desire of these bodies to self-regulate disputes that affect their sports and their claims that they are developing through CAS a completely new branch of law that is often referred to as lex sportiva.

The second group consists of the sources of sports law that evidence the application of national, European and international law, together with generally or universally applicable legal principles, before specific courts; these sources are referred to here as national sports law, European sports law and international sports law. This group of sources explains how the law of a nation state, or a group of nation states, applies to a sports dispute. The key distinction between the two groups of sources is that the former is underpinned by a chain of contractual agreements entered into by, for example, the athlete, their club, their club’s national governing body and the appropriate international sports federation; it is a private contractual order that claims to be making and applying its own set of rules. The latter is the law imposed by a nation state on its citizens or which is constituted by the treaties entered into by communities of nation states; for example, the members of the EU being bound by the law enshrined in the Treaty on the Functioning of the European Union.

1.1.3 The increasing importance of domestic and global sports law

One of the most important recent developments in sports law has been the growing sophistication and technicality of the jurisprudence of specialist sports tribunals and appeals panels. Where once these bodies acted almost exclusively as disciplinary tribunals, they now often hear cases that require a detailed knowledge of the law and a determination of how specific legal issues should apply in the context of a sports dispute.

The impact of this development can be seen in three specific ways. Firstly, it has required the further juridification and formalisation of how sports tribunals operate: their procedures have become more court-like in appearance as they are required to adhere to the rules of natural justice; legal representation is now commonplace where professional sport is concerned; lay panel members have been replaced by lawyers and judges; the applicable rules are more tightly drafted in order to minimise the scope for challenge; the decisions and reasons for reaching them are handed down in the same style as court judgments and the punishments imposed are justified in a similarly judicial style (see further, Section 2.4). The juridification of these tribunals has ensured a greater degree of acceptance of their decisions by the parties appearing before them which, in turn, has led to fewer challenges to their authority coming before the courts.

Secondly, these specialist tribunals are able to utilise more easily a sports-sympathetic approach to the disputes coming before them. They are more readily prepared to accept the importance of protecting the ‘specificity of sport’ from the application of the law (see further, Section 12.1.2) and are more likely to accept without question that certain aspects of sports governance are acceptable, unless they are the specific focus of the challenge before them. For example, the regulations concerning the transfer of players in professional team sports could eventually be the subject of a legal challenge under EU law. However, they are currently accepted as lawful and valid by all sports tribunals up to and including CAS (FC Shaktar Donetsk v Matuzalem Francelino da Silva, Real Zaragoza SAD and FIFA CAS 2008/A/1519 and 1520) (see further, Section 3.3.2, Hot Topic 1 and Section 12.2.2.2). The benefits of using alternative dispute resolution mechanisms such as these are well known: the panel has sport-specific and/or sports law knowledge; the rules are less formal and less restrictive of the evidence that they can hear, and the disputes are usually settled much more quickly than they would be before the cou...

Table of contents

• Cover
• Halftitle
• Title Page
• Copyright
• Contents
• Preface
• Table of equivalences
• Table of cases
• Table of legislation
• Part I Origins and sources of sports law
• Part II Sports participation and the law
• Part III Stadiums, spectators and the law
• Part IV The commercialisation of sport
• Index