Fundamental doctrines of international sport law.

• Author: Olatawura, Ola O.

Introduction

Sport, at the elite level, is an organized global phenomenon that combines physical competition with professional management, commerce, and investment relations across borders. The activities are systemically regulated by conventions, statutes, customs, rules, and, principles of "sport law". International sport law (ISL) is the specialized branch of transnational law that globally regulates private and public participants conduct and claims in sport. As sport law remains largely non-codified, doctrines emanating from private and public juridical sources and legislative institutions for sport are important. Four doctrines, namely: 'access', 'fair play', 'olympism', and 'commerce' doctrines, are fundamental, largely uncontested, but need exposition. Each doctrine's existence, functions, scope, judicial application and formulation is respectively espoused in parts I to IV. The final part presents the current and future status of the doctrines in the international and domestic theory and practice of sport law.

Part I--The Access Doctrine

1.1. History

Sport evolved from "play" undertaken voluntarily by masses of people. Its core activities involve a cadre of persons and organizations from domestic and foreign territories. The exclusion from sport provokes several problems at personal, psychological, and social levels. Apart from recreational and health benefits to individual participants, involvement in "sport" in the widest sense provides huge cultural, social, civic, and economic benefits to society at large. The access doctrine promotes participation and disavows exclusion. The doctrine practicalises and extends the ideas that 'no child should be excluded from the play ground' and that 'all should play together' to all members of society and to all modern sport related activities. Accordingly, it promotes in the widest sense "sport for all". (1)

1.2. Nature, Functions, and Features

The ability and right of individuals, corporations, and governments to participate in sport is validated by the access doctrine. The access doctrine promotes public and private interests and participation in various components of sport. The doctrine reifies the cultural origins and importance of certain sport, the generally unifying role of sport across societies, the health impact, and the benefits of domestic and foreign private investment in sport development. The doctrine is expressed in various international and national instruments that promote "sport for all", (2) ban discrimination on the basis of race or gender, (3) admit sport as a human right, (4) and as a constitutional right. (5) The doctrine primarily upholds the characterisation of sport as a mass activity with protectable roles and interests by the 'sports family' or 'sport movement'. Governments, sport federations, and other stakeholders, notably supporters, but also increasingly, private investors, may rely on the doctrine to regulate, participate in, and manage sport. (6)

The access doctrine obliges governments and their agencies to invest in sport development. (7) Accordingly, governments have prerogative powers to support or subsidize infrastructure, teams and competitions. (8) This obligation to grant and develop access and support is also directed to Olympic movement international sport federations (ISFs). The obligation pertains to their programs and tournaments. (9) As a result, they cannot deny access to economically disadvantaged states and communities. (10) Only as a matter of last resort may they expel or suspend participation of sporting associations, teams, and clubs from states. (11) They must deny rights and privileges to third-party activities that unjustifiably limit access. (12) Conversely, the doctrine limits public or private arrangements, in form of laws, policies, claims and strategies that may impede or exclude others from being participants, investors, or managers in sport. (13) This feature of the doctrine counter-balances monopolist or privatization initiatives. (14)

Thirdly, the doctrine protects sport persons, supporters, and other stakeholders' right to participate and right to invest in sport. With regard to the right to participate, generally, the act of physical performance in sport is freely available to any person. (15) With limited exceptions, no person can ordinarily be excluded from a sport. (16) In most jurisdictions, this right has been activated to protect practice rights for sport persons, managers, and other professionals. (17) The competence to participate in organised sport in foreign territories manifests the right. (18) One of the clearest examples of international law's recognition of the participation right in international sport is the IOC Olympic Truce. (19) The Truce has the support of the UN and regional bodies. (20) It affirms that all participants in the Olympic Games must be granted safe passage through all territories. A breach of the Truce would create liabilities under international law regimes on peace, war, and armed conflicts. (21) Similarly, with regard to the right of investment, professional or other commercial investments in sport is a protected right under the access doctrine. (22) There is, in principle, no power to forbid others from professionalising and commercialising their rights of participation. (23) Exceptions under the doctrine arise where exercising the right of access is not good for the sport, (24) the process of seeking access is morally objectionable, (25) the person seeking to invest may not be desirable, (26) or the investment relationship in a club or its assets might jeopardise a league or competition's future or be disruptive to other stakeholders. (27) In limiting investments, an objective test is to be applied. (28)

Fourthly, the subject matter and scope for applying the doctrine are wide. The range covers most sport related activity. It is applicable in relation to events, (29) information, (30) physical participation, (31) investment, (32) and markets. (33) The scope for application of the doctrine can be found in judicial applications in various states. (34)

1.3. National Judicial Treatments and Formulation

This section examines the reality and importance of the roles attached to the access doctrine with decisions by national courts of Australia and New Zealand, England, Germany, and United States. It then offers a composite judicial approach to the doctrine.

1.3.1. Australia & New Zealand

In Victoria Park Racing and Recreation Grounds Ltd v Taylor, (35) a split majority in the High Court of Australia held that there was no property right in a sporting spectacle to debar defendants from using neighbouring land to broadcast live sporting events, including particular information about the participant horses. While the defendant's conduct affected the claimant's power to exclusively monopolise the product, there had been no direct interference to constitute infringement of property right.

In New Zealand, the majority in Blackler v NZFLR, (36) decided that sporting federations rules that prevented a rugby player from leaving his country for professional services abroad without the permission of the national sport federation was disastrous, obnoxious, unreasonable, and void. Such a rule prevented citizens from gaining wider experience, developing and exploiting their skills. (37)

1.3.2. England

Apart from classical restraint of trade claims, (38) a wide access doctrine has been applied to deal with claims involving other stakeholders. The courts have rejected claims that prevent access to sport information, (39) and women. (40) Notable decisions promote participants access to venture into sport business, reject attempts to privatize sport, and encourage other sport investors to compete with the standard bearer. In Greig v Insole, (41) it was held that rules of the controlling cricket sport federations that prevented players from taking part in matches organized by a rival body were invalid.

In Trebor Bassett v The Football Association, (42) the trial court refused to grant a trademark injunction against a sport cards entrepreneur who independently marketed photographs of players in jerseys with IPR protected logos owned by the claimant. It found that there was only 'incidental use'. In RFU & Nike v Cotton Traders, (43) the court invalidated claimant's registered trademark and refused to confer an exclusive right to a logo on the ground that it represented English national identity and allegiance. It is instructive that both claimants in these two cases were national sport authorities seeking monopoly rights. It is uncertain whether the fact that both sport are national sport operated in the minds of the judges to prevent denial of free access by others. In Adidas-Salamon AG v ITF, (44) the trial judge in an interlocutory ruling restrained the defendant sport federation from banning apparel that did not conform with the federation's specifications for its sanctioned tennis tournaments. The claimant pointed out that the defendant's conduct amounted to a restraint of trade. (45) The ruling apparently upholds an investment right in tennis. In Arsenal FC v Reed, (46) the trial judge held that the famous football club could not deprive a merchant who independently sold merchandise bearing the club's names and logos as a badge of loyalty of fans. The defendant made it plain that the items were not official merchandise or authorized by the club. The decision was rejected by the European Court of Justice on the basis of EU trademark regime. (47)

1.3.3. Germany

The doctrine has been widely applied in the recent Puma v FIFA cat-suit case. (48) The case involved FIFA's ban of a radical kit commissioned, designed and manufactured by Puma for the Indomitable Lions, Cameroon's national football team. The design of the kit enhanced the quality of the sport. By avoiding fouls, cheating, time wasting techniques, and disputes about grabbing jerseys, the cat suit promotes...