Defining the scope and structure of international sports law: four conceptual issues.

AuthorNafziger, James A.R.
  1. The Problem

    There is general agreement that the term "international sports law" refers to a process involving a distinctive body of rules, principles, procedures, and practice to govern important consequences of sports activity that transcends national boundaries. Beyond this broad definition, however, the scope and structure of international sports law is uncertain, thereby limiting its authority and legitimacy. What this means at the international level of authority is that we do not always know what is law and what is not, or at least we may find it difficult to distinguish law, with all of its rigor, from non-legal norms, best practices, ethics, and simple rules of sports etiquette, with all of their flexibility. This kind of problem besets most if not all young regimes, not just international sports law, but the sports law community would be remiss if it failed to address the underlying issues.

    It might seem that we could overcome this problem by defining and labeling the pertinent law and legal institutions more precisely. To do so, our collective wisdom would be essential. After all, our ability to accurately describe our observations, whether of concrete objects or social phenomena such as legal norms, often depends on more than individual impressions. One is reminded of the story about a group of blind persons who are finding it difficult to identify an elephant merely by touching it, each of them describing a different part of the animal.

    A lack of agreement on definitions and labeling does not seem to be the real problem, however. To be sure, we need to distinguish what is so-called hard law, such as prohibitions on match-fixing, and what is soft law, such as the ethics of good sportsmanship and the principle of international cooperation. But simply defining the terms "hard law" and "soft law" more precisely would not seem to be very helpful. Similarly, we cannot resolve the tensions between international and national authority over sports merely by refining the terminology and rules that express their complicated relationship. After all, international sports law is an authoritative process, not a taxonomy of rules.

    Trying to reach a more functional consensus on the scope and structure of international sports law therefore raises deep and rather difficult issues - not just nominal or verbal ones, but conceptual ones. (1) Four of these conceptual issues are particularly troublesome: professional orientations among sports lawyers toward either international or domestic law, but not always both; the public-private law distinction; the jurisprudential scope of a lex sportiva; and the applicability of a core principle of fairness.

    There is a fifth set of important conceptual issues that this commentary will not discuss in detail, namely, those related to the European Union's complex relationships with national authorities, international sports bodies, and, ultimately, athletes and other individual stakeholders in sports. Although the EU is certainly a source of important developments in international sports law - indeed, some of the most important developments - it nevertheless remains only a regional rather than global mechanism. As such, EU law has its own internal conceptual issues that, we must remember, are not necessarily experienced elsewhere. Perhaps the most obvious of these issues is how, precisely, to define the specificity of sport - the so-called sporting exception - which within the EU is framed in terms of the distinctive exigencies of economic integration. We might even speak of EU-type specificity. Elsewhere, however, sports law typically is not as driven by economic requirements as on the continent of Walrave, Bosman, and Meca-Medina. (2) This means that at the global level the scope of the concept of specificity may be quite different from the sense of the term within the EU. (3) Moreover, the meaning of EU-type specificity is still evolving. Thus, although the term clearly raises conceptual issues of great interest, they are ones that as yet cannot be resolved at the global level, given the continuing evolution of the concept within the EU and, ultimately, its mandatory economic requirements. It seems advisable, then, to avoid this kind of confusion in a study of conceptual issues that are not simply regional and are susceptible to actual resolution at the global level.

    The present commentary seeks mostly to identify and discuss the four conceptual issues without attempting to resolve them definitively. That should be the next step in seeking to achieve a consensus on the scope and structure of international sports law. Nevertheless, this commentary will offer several observations that may help us take this next step.

    II The Conceptual Issues

    Perhaps the best place to begin is by clarifying what should no longer be a conceptual issue - namely, whether the term "law and sports" or simply "sports law" best describes our common inquiry. (4) It should be clear that the more ambitious term "sports law" is entirely justified. The regime governing international competition has certainly evolved well beyond the "law and sports" stage when the applicable law was merely or mostly external. Today, the acceptance of a limited specificity of sport and the emergence of distinctive rules, institutions, and processes clearly confirm that sports law - indeed, the process of international sports law - is a discipline unto its own. Although it is still young, the discipline is surprisingly mature, with both primary and secondary rules. We shall return later to these points as we examine each of the four conceptual issues.

    1. Professional Orientations Toward Either International or Domestic Law

      It is obvious that international sports law straddles both international law and topics of national or domestic law such as antitrust or competition law, employment law, labor law, tort law, criminal law, and civil rights law. As a result, some sports lawyers and scholars are more grounded in international law and others in domestic law. Consequently, individual orientations toward either international or domestic law contribute to the confusion about the scope and structure of the discipline. It then becomes essentially a problem of legal ordering between the two spheres of authority.

      Although this distinction can be exaggerated, professional orientations can make a difference in defining the proper legal ordering. For example, international lawyers are more apt to assume that international rules, standards, and procedures, often established by custom or general practice, should always be supreme. This is, of course, highly questionable as a general rule, at least in many domestic legal systems. International lawyers may also discount the actual impact that international sports law has on national regulation of employment relations, broadcasting rights, intellectual property rights, doping, and so on. Moreover, they may be impatient about or even overlook important variations in national constitutional protections and mandatory laws and procedures that may call into question the uniformity of such rules of international sports law as strict liability in doping cases. Sometimes the wish for greater uniformity of rules and authority around the world may be the parent of the thought that such uniformity actually exists in practice.

      On the other hand, domestic lawyers tend to think of international law mostly, if not entirely, in simplistic terms of relations between nationstates. They may therefore fail to understand the breadth of international legal personality and consequently fail to appreciate the unusual and powerful status of the Olympic Movement, led by the International Olympic Committee (IOC), as an unusual nongovernmental arrangement with limited legal personality, (5) much like the International Committee of the Red Cross in that respect. It should be clear that the constituent and affiliated organizations of the Olympic Movement - particularly the IOC, international sports federations, the World Anti-Doping Agency (WADA), and the Court of Arbitration for Sport (CAS) - are not just loosely associated with each other under private agreements. Instead, these organizations, even though they are essentially nongovernmental, form an integrated subject of public international law that is recognized as such by nation-states.

      This point is crucial to an understanding of the scope and structure of international sports law. Thus, for example, "[t]he IOC increasingly acts [as] a global legislator in international sport, setting common standards." (6) In the words of a national court:

      [A] court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organized and conducted under the terms of an international agreement - the Olympic Charter. We are extremely hesitant to undertake the application of one state's statute to alter an event that is staged with competitors from the entire world under the terms of that agreement. (7) Also, CAS awards have been repeatedly recognized and enforced by states, not only under the New York Convention on the Recognition and Enforcement of Arbitral Awards, (8) but also by virtue of the status of CAS itself as a legal actor within the framework of international sports law. (9) We should recall, too, that the World Anti-Doping Agency (WADA) was established by a mix of nongovernmental organizations and - it is too often forgotten - national governments. Moreover, UNESCO's International Convention Against Doping in Sport, (10) with over 150 States Parties, establishes WADA as an advisory organization (11) and obligate the parties to adopt appropriate measures consistent with the principles of WADA's World Anti-Doping Code. (12) As a hybrid of governmental and nongovernmental commitments, WADA therefore should not be classified as a strictly private organization. Unfortunately, the reality that the core nongovernmental...

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