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What is Sports Law?
Introduction
[1.01] In a four-part series entitled â21st Century Sportâ 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 sportsâFormula 1 racing; the four major league sports in America and the Premier League in Englandâwere becoming global brands with new âpost-TVâ 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 âpost-fansââthat is, fans who consume sport rather than witness it first handâto 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 ÂŁ3.35 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 âthe most watched live event in human history, outstripping the moon landings, the funeral of Princess Diana and Barack Obamaâs inaugurationâ.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 sportâfrom 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 propertyâhas 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 âsports lawâ.
[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 âjuridificationâ 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 âcivilising processâ, 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 âsport and the law or sports lawâ 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 sportsâ 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 Dunningâs interpretation of Eliasâs idea of sport reflecting a general societal âcivilising processâ, 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 âgamesâ. 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, ânasty, brutish and shortâ 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, âin the process tarred all sports with the same brushâ.15 The third periodâbroadly the feudal eraâsees 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 todayâs 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 lawâa definition of the term âsportâ; the societal nature of sport; sportâs correlation with technological and economic advances; socio-political aspects of sport; and the lawâs instrumental role in âcivilisingâ sport.
What is Sport?
[1.06] It is clear from history that âsportâ 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 formerâthe informal recreations of the local village greenâthat the term âlawful sports and gamesâ 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 âsportâ 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 contextâconsent and the criminal lawâthe Law Commission of England and Wales, in consultation with bodies such as the Central Council of Physical Recreation, suggested a ârecognition schemeâ 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 ...