Modern Sports Law

A Textbook

Jack Anderson

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317377
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

The aim of this book is to provide an account of how the law influences the operation, administration and playing of modern sports. Although the book focuses on legal doctrine it has been written bearing in mind sport's historical, cultural, social and economic context, including the drama and colour of sport's major events and leading personalities. And although it is inevitably very much concerned with elite professional sports it is not dominated by them, and seeks to cover the widest possible range of sports, professional and amateur. Initially, the book addresses practical issues such as the structures of national and international sport, and examines the evolution of the body of law known as 'sports law'. Thereafter three main themes are identified: regulatory; participatory; and financial aspects of modern sport. The regulatory theme is dealt with in chapters considering the manner in which decisions of sports governing bodies may be challenged in the ordinary courts and the development of alternative dispute resolution mechanisms in sport. The participatory theme includes the legal regulation of doping and violence in sport, as well as the broader topic of tortious liability for sporting injuries. The financial theme, reflecting the enhanced commercialisation of sport at all levels, is developed in chapters concerning issues in applied contract and employment law for players and legal matters surrounding the organisation of major sports events. The conclusion summarises modern sport's experience of EU law, pointing the way to the future direction of sports law more generally. While the book is aimed primarily at students, and is designed to cover fundamental and topical areas of sports law (sports law in general; sports bodies and the courts; arbitration in sport; corruption; doping; violence; civil liability; discrimination; the commodification of modern sport; and the likely future of sports law), it should also prove of wider interest to practitioners, sports administrators and governing bodies; and though focused primarily on UK law it will also appeal to readers in Australia, Canada, New Zealand and the USA.

1

What is Sports Law?

Introduction

[1.01] In a four-part series entitled ‘21st Century Sport’ published by The Observer at the end of 2007, the newspaper reflected on the relentless commercialisation of sport both nationally and globally, and speculated on future trends.¹ The report noted that the largest sports—Formula 1 racing; the four major league sports in America and the Premier League in England—were becoming global brands with new ‘post-TV’ technologies, such as worldwide internet and mobile phone access, making it easier for them to reach audiences and new customers, and particularly in the emerging markets of China and India. The origins of the relationship between sport and the law are usually located in this relatively recent phenomenon whereby the corporate owners of the mass media seek cooperation with the corporate owners of sport to attract millions of so-called ‘post-fans’—that is, fans who consume sport rather than witness it first hand—to brand names such as the New York Yankees and Manchester United or to global events such as the Olympic Games and the FIFA World Cup.²

[1.02] Put simply, there is no doubt that the economic dimension of sport is now significant, and the pace of change has accelerated exponentially from the birth of modern sport in nineteenth century Britain to its enhanced corporatisation in the late twentieth century. Some of the statistics are astounding. For example, in 2006 the total revenue attributed to the National Football League in the US was £3.35 billion, making it the largest sports league in the world, while in the same year a report estimated that the macro-economic impact of sport in the European Union (EU) accounted for 3.7 per cent of EU GDP, providing employment for 15 million people or 5.4 per cent of the labour force and, in a broader sense, generating value-added (407 billion to the EU economy as a whole.³ Moreover, according to a recent report, and typical of the hyperbole of sport, the opening ceremony at the 2008 Olympic Games was ‘the most watched live event in human history, outstripping the moon landings, the funeral of Princess Diana and Barack Obama’s inauguration’.⁴ The report showed that on average at least 593 million people worldwide, including 5 million in Britain, watched the ceremony in its entirety, while 984 million tuned in for part of it. The commodification of sport, that is, the attempt to exploit the financial potential of all aspects of sport—from the organisation and broadcasting of major events to the contractual arrangements of individual players, and including issues of commercial law interest such as the protection of official sponsorships and intellectual property—has led, inevitably, to the involvement of the legal profession. In turn, this has led to litigation of such a specific sports-related nature that collectively it is now referred to as ‘sports law’.

[1.03] The increasingly prevalent role of law and lawyers in sport, and particularly in the business of sport, can be explained because, although the playing rules of football, rugby, boxing, horse racing, cricket etc have remained more or less the same for well over a century, the legal, commercial and contractual framework that surrounds them has changed utterly. This chapter seeks to discuss four matters of concern related to the ‘juridification’ of sport.⁵ First, the chapter makes the point that the relationship between sport and the law stretches back to antiquity, and the organisation of sport in Ancient Greece and Rome. Later, the experience of the early common law with sporting activities of an unusually violent even seditious nature heralded the emergence of more socially acceptable leisure pursuits, which, by the mid-nineteenth century, had led in Britain to the codification of many sports.⁶ Second, this historical review traces the evolution of sport from its beginnings, through a ‘civilising process’, and on into the twentieth century, by which time elite sport had taken on a sophisticated, heavily commercialised aspect to its promotion and structure. The third part of this chapter reviews the contemporary debate as to the existence or not of a discrete body of law known as sports law. On one side of the debate is the argument that there is an identifiable, if still developing, branch of law that genuinely deserves the autonomy of the term sports law. Unsurprisingly, this view is supported by leading academics in the area who, nonetheless, struggle to identify a unifying theoretical coherence underpinning the claimed existence of the topic.⁷ On the other hand, there is the practitioner-led contention that sports law is merely the application of established areas of the law within a sporting environment.⁸

[1.04] Finally, and in an attempt to move beyond the semantics of the ‘sport and the law or sports law’ debate, it is suggested that it might be better to ask what the law contributes to the operation of modern sport. It is argued that the clearest manifestation of sports law lies in the fact that lawyers, general principles of the law and legal proceedings are now often central to modern sports’ seemingly continuous struggle to address inter alia the corrosive impact of corruption, discrimination, doping and violence, as well as overarching problems relating to the state of labour relations in professional sport.⁹

Sport and The Law: A History

[1.05] Regrettably, even the briefest history of sport and the most abridged account of the many theories on why humans are attracted to sport and games is beyond the scope of this book.¹⁰ Nevertheless, the framework provided by leading sports historians such as Guttmann;¹¹ the insight of sociologists such as Huizinga;¹² and Dunning’s interpretation of Elias’s idea of sport reflecting a general societal ‘civilising process’, enlightens our understanding of sports law.¹³ Briefly, sports historians tend to identify five significant periods in the history of sport. First, and in antiquity, the period from the fourth century BC to the third century AD when Greek athletic contests based on the festival at Olympia spread throughout much of Europe and later merged with Roman-inspired gladiatorial events and ‘games’. The influence of this era in terms of the architecture of the modern sports arena, and the promotion of competitive sport as mass entertainment, remains profound.¹⁴ The second period coincides with the fall of the Roman Empire and lasts through the Middle Ages. It is characterised by a marked decline in organised sport, due principally to socio-economic factors. Life during the period in question was, to paraphrase Hobbes, ‘nasty, brutish and short’ with an atmosphere not conducive to pastimes of a sporting nature, or any nature. Additionally, leading scholars in Christianity, such as Saint Augustine and Saint Jerome, viewed the customary rites celebrated at the Coliseum as powerful symbols of pagan decadence and, according to Scanlon and Cleveland, ‘in the process tarred all sports with the same brush’.¹⁵ The third period—broadly the feudal era—sees the gradual revival of folk-based leisure activities usually held on religious pattern days and the promotion of pursuits deemed useful in preparing men for war, such as archery, jousts and tournaments.¹⁶ The fourth period, which runs parallel to the industrial revolution in Britain, witnesses the birth of modern sport, leading both to the codification of many of today’s leading team sports and the demise of agrarian-based sports based on the baiting of animals, and the adaptation of this sporting process elsewhere, particularly in the US.¹⁷ The fifth and final period is taken to begin in the latter half of the twentieth century with the intensive corporatisation and commodification of sport.¹⁸

There are numerous themes linking these periods in sports history and five are of importance to our understanding of modern sports law—a definition of the term ‘sport’; the societal nature of sport; sport’s correlation with technological and economic advances; socio-political aspects of sport; and the law’s instrumental role in ‘civilising’ sport.

What is Sport?

[1.06] It is clear from history that ‘sport’ is not homogeneous in nature. The term can refer to localised, non-competitive, quasi-physical leisure pursuits of a custom-based nature; or, in a more contemporary sense, codified, competitive and highly regulated physical activities that have global appeal. This text is concerned with the latter though ironically it is in the context of the former—the informal recreations of the local village green—that the term ‘lawful sports and games’ has been most frequently considered by the House of Lords. In cases such as R v Oxfordshire County Council (Ex p Sunningwell Parish Council),¹⁹ R (Beresford) v Sunderland City Council²⁰ and Oxfordshire CC v Oxford City Council,²¹ the House of Lords had to address the issue of the registration of village greens wherein proof of the playing of lawful sports, games and informal recreations was often integral to attempts by claimants to establish (or deny) user rights to the land in question.²² Unfortunately, the definition of ‘sport’ in the stated litigation was necessarily broad, and in the context of this text, not especially useful.²³ The challenge is to arrive at an objective workable definition of an activity that now appears to encompass everything from chess to combat sports; from darts to synchronised diving. In this regard, a definition of sport is important for two reasons: on account of specific advantages that might accrue from such a status and, more generally, with regard to the certainty it might provide as a starting point for the study of sports law.

[1.07] On the first and more specific point, a declaration that an activity is a legally recognised sport or game entails a number of benefits. These include the capacity to attract a favourable tax assessment for an individual participant or to obtain charitable status for that sporting association.²⁴ Similarly, a lawful sport or game may avail of exemptions from applications of fundamental legal principles that might otherwise severely restrict the enjoyment of that sport. The most immediate example is the qualified immunity that lawful games and sports receive from the application of the ordinary threshold of consent to assault in the criminal law, which will be discussed in chapter five of this text. In this context—consent and the criminal law—the Law Commission of England and Wales, in consultation with bodies such as the Central Council of Physical Recreation, suggested a ‘recognition scheme’ as to whether an activity might equate to a lawful game or sport.²⁵ The criteria are useful, though they are principally concerned with safety and controlling the risk of avoidable injury in contact sports such as boxing ...