Lex sportiva and Lex Mercatoria.

• Author: Kolev, Boris

The idea about the emergence of "world law" is recently gaining popularity within the legal science. A definition of the term "world law" is given by Harold Berman--a prominent professor from Harward University and currently a chairman of the World Law Institute of the Emory University in Atlanta, Georgia. According to Berman by "world law" is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia is the world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, and emerged in result of the uniform application and interpretation of legal rules in sport due to the activity of CAS. (1)

The world sports law, currently referred to as Lex Sportiva, is deemed to be an autonomous body of rules having anational character. The concept of Lex Sportiva draws an analogy with the concept of Lex Mercatoria (the law merchant) as an anational legal system. This article makes a comparison between the historical developments of Lex Mercatoria as presented in the book of Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition, on the one hand, and Lex Sportiva, on the other hand. This comparison is considered, in author's opinion, very useful for illustration of the legal situation, in which sport has found itself to be nowadays, could provide some clues for the future of the sport governance and could be helpful for the analysis of the alternative models of the future legal development in sport.

Some similarities in the genesis of Lex Mercatoria and Lex Sportiva may be outlined:

1. The formative period of Lex Mercatoria was according to Berman the late eleventh and twelfth centuries (2). Necessary condition precedent for its development was the formation of a merchant class, a community of merchants, which number significantly grew during the said centuries. From the second half of 20th century onward due to factors like development of television and other broadcasting means and the followed commercialization of sport, the latter was transformed from one purely leisure and recreational activity into professional activity capable to provide enough funds for the living of its practitioners. In result, a large number of professional sportsmen emerged and is still growing. Consolidation of the sport movement worldwide made for the formation of a community--the world community of sportsmen.

2. "Initial development of law merchant was left largely, though not entirely, to the merchant themselves, who organized international fairs and markets, formed mercantile courts, and established mercantile offices in the new urban communities that were springing up throughout western Europe." (3) The initial development of international sports law is also attributed to the rules created by sport federations, formed by sportsmen and sport clubs and enjoying the autonomy of sport. Member associations of FIFA, for instance, are more than member of the United Nations as FIFA officials usually boast. The consolidated sport movement established in 1984 their own institution to settle the sport related disputes--the based in Luisanna, Switzerland Court of Arbitration for Sport. However, with the commercialization of sport, sport was necessary to fall within some form of legal scrutiny to guarantee the fair result of the application of sporting rules in the cases where these rules trigger economic implications.

3. Uniformity of Lex Mercatoria across the countries was not achieved at once but was part of a gradual process. As Berman put it, however, "the differences among countries and localities in the law and custom applicable to mercantile transactions were differences of detail or in the words of William Mitchell citing also by Berman "everywhere the leading principles and the most important rules were the same, or tended to become the same" (4). The current situation in football within the EU very much resembles the process towards uniformity of Lex Mercatoria across the then countries. Number of states adopted interventionist approach sometimes complying and sometimes conflicting the sport rules developed by FIFA and national associations. Whether the differences are of detail should be judged on a case by case basis.

4. In addition to the discriminatory treatment under local laws Berman indicates as a fear experienced by the merchants at that time the "rapacity" of local taxing authorities towards them (5). Nowadays, the right of the states to levy taxes at their discretion is undisputable and its limits are specified through bilateral or multilateral agreements between states. Fear of heavy taxation of the income from sporting activity is still among the considerations, which players take into account while choosing their clubs.

5. In the formative era of Lex Mercatoria the system of law merchant co-existed with the system of canon law, the law of the church. Cannon law provided for ecclesiastical jurisdiction in certain matters including mercantile cases, which met the opposition of merchants. As an example of this resistance was the decree issued in 1369 by the Doge and Council of Alderman of the city of Genoa imposing a substantial fine on any person who had recourse to an ecclesiastical or other court claiming incompatibility of certain conduct with canon law. Despite of the claims of the church to have jurisdiction over mercantile cases it did not deny merchants their relative autonomy (6). Likewise, the system of Lex Sportiva coexists with the system of the EU law. The EU law claims its right to intervene in sport when matters such as mobility and competition are involved. During long period of time sport world was resisting any involvement of the EU law and the law in general in sport issues and athletes used to be...