Sports Law

Michael Beloff KC, Tim Kerr QC, Marie Demetriou QC, Rupert Beloff

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781782250340
• Edition: 2
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

Sports law has been growing with increasing rapidity over the years since the first edition of this book was published in 1999, regularly making headlines as well as leading to a developing body of law practised by specialist lawyers. This revised work, by leading practitioners in the field, with a foreword by Lord Coe, provides a coherent framework for understanding the principles of sports law in this area, as well as a deep analysis of its key features. The subject is split into various areas of practice: first, regulatory rules, which embrace the constitutional aspect of organised sport, including the disciplinary procedures of the various governing organisations; second, broadcasting and marketing resulting from the commercial exploitation, including sponsorship, of sports clubs, sporting events and players; and third, player's rights and obligations, which embraces a wide range of legal issues including club transfers and player contracts, and issues arising from employment (including discrimination law), personal injury and criminal law. Special attention is paid to the impact of EU and Human Rights law as well as to the influential jurisprudence of the Court of Arbitration for Sport. London 2012 provides an appropriate point at which to assess the current state of the law, as well as a look to the future. The target readership extends from solicitors, barristers and legal advisers, to sports organisations and clubs, corporations involved in marketing and sponsorship, media companies, academics teaching sports law, and sports administrators.
"I commend it to everyone who has to administer sport as well as to those who have to advise the administrators or argue cases in the field on whatever side. It is a gold medal book."
From the Foreword by Lord Coe KBE This title is included in Bloomsbury Professional's Sports Law online service.

1

The Nature of Sports Law

An Introduction to the Subject

1.1 In the first edition of this book, published in 1999, we argued that the time had come to recognise ‘sports law’ as a valid description of a system of law governing the practice of sports. Over a decade later, in a new century and millennium, the law relating to sport is no longer in its infancy and is starting to come of age. Though not yet fully developed, it is now sufficiently developed for the term ‘sports law’ to command acceptance by the majority of legal practitioners in the field, and of sports governing bodies and administrators.

1.2 In the 1990s, the existence of sports law as a distinct field of legal practice was not yet universally accepted among lawyers. Nor was the term then in common use among practitioners or administrators of sport. But its existence was then already recognised by the availability of pioneering sports law degrees at Manchester Metropolitan University and the Anglia Polytechnic University; the postgraduate Certificate in Sports Law at King’s College London; and by the already active British Association for Sport and Law, bringing together lawyers, academics and sports administrators.¹

1.3 The British Association continues to publish (in association with De Montfort University in Leicester) the Sport and the Law Journal, and lists of experts in sports law appear in lawyers’ directories such as Chambers and Partners Directory and the Legal 500. In the first edition of this book we noted that there was then already in existence the National Sports Law Institute at the Marquette University in Milwaukee, as well as its counterparts this side of the Atlantic. The last decade or so has seen such a proliferation of organisations involved in sport and the law that the website of the British Association for Sport and Law lists 19 other ‘International Sports Law Bodies’ across four continents.²

1.4 As the title of this book implies, we continue to maintain that the subject merits recognition as a discrete field of law, and that in consequence it is legitimate to use the term ‘sports law’. This is a less controversial thesis now than it was at the end of the twentieth century when we first advanced it.³ Indeed in August 1999 (just too late for inclusion in the first edition of this book), the Court of Arbitration for Sport (CAS) stated:

Sports Law has developed and consolidated along the years, particularly through the arbitral resolution of disputes, a set of unwritten legal principles—a sort of lex mercatoria for sports, or, so to speak, a lex ludica—to which national and international sport federations must conform, regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided they do not conflict with any national ‘public policy’ (ordre publique) provision applicable to a given case.⁴

The lex ludica includes, according to the same CAS panel, ‘the prohibition of arbitrary or unreasonable rules and measures’.⁵ However, sports law, whether emanating from CAS or other sports tribunals, cannot of course override national or indeed international law. The International Olympic Committee sought unavailingly to persuade the Italian government to suspend its domestic law which provided for custodial penalties for use of prohibited substances by a competitor whereas the World Anti-Doping Code provided only for sporting sanctions.⁶

1.5 It is useful to remind ourselves and our readers of the grounds for asserting the existence of sports law.⁷ To make good the thesis that sports law exists, it is insufficient merely to show that there is a phenomenon, sport, which exists in our society, and that legal rules impact on its practice. The law intrudes into many aspects of public and private life: yet not every human activity has a body of legal rules to go with it. Some do and some do not. We travel by ship and by air, and we have shipping law and aviation law. We also do cooking and gardening, and there are laws which apply to both activities but one could not usefully speak of culinary law or horticultural law. To justify recognition of sports law, something more must be shown than the existence of laws which affect sport. Some insight into the question how a distinct field of law is identified can be gained by observing a distinction between branches of the law defined by reference to a particular human activity, for example, aviation law; and those which are identified by reference to the nature of legal rules themselves, for example the law of tort and the law of trusts.

1.6 Both of the latter branches of the law describe categories of rules embodying rights and obligations which apply irrespective of the subject matter of a particular case in which they are relevant. They could therefore be termed, so to speak, horizontal law; whereas the former categories of law defined by reference to a human activity could be termed vertical law. If, as we maintain, sports law exists, it exists principally as a vertically defined, or activity-led branch of the law which must take its content from rule-led branches of the law: tort, contract, restitution, crime and so on.

1.7 The claim of sport to have a system of law of its own arises from its importance in ancient and modern social life. Sport is one of society’s most important leisure activities. It is a primary and atavistic form of self-expression. Bill Shankly, the legendary manager of Liverpool Football Club, once said memorably that football is not just a matter of life and death; it is more important than that. (He also said somewhat unkindly on another occasion that there were two teams in Liverpool: Liverpool and Liverpool reserves.)

1.8 Examples of the potency of sport as a force in civil society are legion. In South Africa the effort to end apartheid was driven forward, with considerable success, by the sporting boycott. Rights of full citizenship for all aroused high passions in South Africa, but so did rugby, cricket, athletics and soccer, for access to which white South Africans were prepared to pay a high political price.⁸ And when Georgia became an independent state after the dissolution of the Soviet Union, one of the first acts of its inaugural government was to apply to join FIFA, the world governing body of association football. To the Georgian people, this was probably as much a badge of sovereign independence as formal recognition by other states, membership of the United Nations and other conventional indicia of statehood.

1.9 Sport’s importance in society also lies in its benign influence. The continuation of rivalry between Croatia and Serbia in the sporting arena after the fighting ended (and in football the superior achievement of Croatia, including finishing third in her World Cup debut in 1998) shows how beneficial is the substitution of goals for guns. Sport’s detractors, who cannot understand why a ball entering a net merits our attention, should remember that people’s attention may be more harmfully directed to alternative pursuits. Chariot races are better than riots and war and boxing preferable to gladiators in combat.⁹ For that reason if no other, justice in sport is a serious matter.

1.10 It cannot, then, seriously be disputed that sport is a vitally important and mainly benign social force. The thesis that sport influences politics (and association football more than any other sport) has been convincingly demonstrated¹⁰ and is widely accepted. Sporting celebrities are respected and may turn this to political advantage, as in the cases of Imran Khan in Pakistan and Roger Milla in Cameroon.

1.11 The central place of sport in civil society makes it important to ensure that it is properly regulated and justly administered. Legal norms have been developed to make this happen. Yet, as already conceded, to show that a system of law governing sport exists, it is not enough to show that sport is influential and that laws affect it. One must go further and propound a definition of sports law, however qualified and approximate such a definition may be. To define sports law one must delineate its scope, however indistinct its outline.

1.12 Lawyers who may be sceptical of the utility of the term ‘sports law’ as a term of art, may argue that it amounts to no more than a series of examples of cases in which the parties happen to be concerned in sport. Thus a sporting dispute may in truth be one arising in the law of tort, contract or other ‘true’ fields of law. The traditionally minded, purist lawyer may indeed distrust any activity-led, ‘vertical’ field of law, preferring the surer, traditional ground of rule-led ‘horizontal’ law. We have sympathy with that position, and ourselves firmly reject the primacy of ‘vertical’ legal classifications over ‘horizontal’ ones. It is true that, traditionally, the bodies which regulate sporting activity have been treated by English lawyers as a species of domestic tribunal, governed by the same principles as apply to clubs (if unincorporated) or private companies (if incorporated). Likewise, sporting activity has, according to the traditions of English law, been treated as a private activity subject to the rules of private law.

1.13 We do not, however, agree with the view still held by some lawyers active in sports related work that ‘there is no such thing as sports law’.¹¹ The answer to the argument that sports law is merely law in which the parties happen to be involved in sport, is that the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport differently from other activities or bodies. Discrete doctrines are taking shape in the sporting field which are not found elsewhere, not even necessarily in the case of non-sporting domestic tribunals. There are now clear signs that the courts are beginning to treat decisions of sporting bodies as subject to particular principles better known in the field of public than private law, but most accurately described as principles which are sui generis.¹²

1.14 The cornerstone of what could be called the founding principles of sports law is the definition of the respective territories of the courts and the bodies which govern sport. The courts in England and elsewhere have firmly established a region of autonomy for decision making bodies in sport, a region within which—unless the reasons for doing so are compelling—the courts decline to intervene. Equally firmly they have charted the outer limits of that region and insisted that those limits be observed by the decision makers in sport, on pain of judicial intervention. We regard that relationship of constitutional equilibrium between courts of law and sports decision makers as the foundation of a developing law of sport.

1.15 Few lawyers would now subscribe to the traditionalist notion that the law relating to sport can be regarded simply as part of ordinary private law, that is to say, as part of the corpus of law governing private transactions between citizens in which the state’s only interest is to provide courts as a forum of last resort to enable disputes to be resolved. The public’s limitless enthusiasm for sp...