Sport in national sports acts and constitutions: definition, ratio legis and objectives.

• Author: Soek, Janwillem
• Position: Legislation

1. The Regulation of Sport (1)

   In December 2001, Dutch Members of Parliament tabled a motion concerning the advisability of enacting national sports legislation. As a result of this, the State Secretary for Sport requested Professor Heiko van Staveren, Professor of Sport and Law at the Free University of Amsterdam, to write an Opinion. The general question needed answering whether sports legislation at national level would be appropriate. In his Opinion entitled "Sports legislation at national level appropriate?" which was published at the beginning of September 2003 Van Staveren concluded that there was no reason to enact national legislation specifically concerning sport (p. 13). The State Secretary followed this conclusion: there was insufficient reason to establish special legislation for sport.

   Some years later--in the second half of 2005--it became apparent that the Dutch government was still struggling with the question of sports legislation which covered different perspectives (football hooliganism, doping, a foundation for sports policy, the granting of subsidies, etc.). The starting point was not that a Sports Act had to be prepared, but that a solid and careful study had to be undertaken into the usefulness and need for a "foundation" for the sports policy of the Dutch government.

   From that perspective, the T.M.C. Asser Institute in November 2005 was asked by the Ministry of Sport to examine by means of a 'quick scan' which countries in the European Union had enacted a Sports Act. In these Acts, the definition of the term "sport" had to be examined in addition to the factors which had motivated the various legislators to enact such laws.

   By means of a questionnaire which was distributed worldwide and investigations on the Internet, the Institute managed to obtain the Sports Acts of some 50 countries from all continents. (2) In addition, it was found that although 26 countries do not have a special Sports Act in place, they do have one or more provisions on sports contained in their Constitution. (3)

   The collected information sheds light on how the position of sport in society is viewed in the various countries. (4) One restriction which was inherent to the Ministry's assignment is that no information has been collected on countries that do not have a Sports Act or provisions on sport in their Constitution. However, it must be presumed that in these countries rules have been established concerning sport in some other way than through a Sports Act.

   Below, we will first deal with the definition in the Sports Acts of the term "sport" and subsequently describe the reasons for which the various legislators decided to enact these Acts. Finally, a few words will be devoted to the provisions concerning sport in the different Constitutions.

2. The Term "Sport"

   In the academic Opinion mentioned above it is observed that "sport will be difficult to define in such a way that the field in which the law has effect is clearly delineated. This in itself is already an impediment to just rules. It is not possible to refer to a treaty definition either. Both the convention against football hooliganism and the anti-doping treaty steer clear of defining sport." (p. 5) However, this disregards Article 2 of the European Sports Charter of the Council of Europe (5)--although this is not a treaty--and the references it contains to both these treaties. Article 2 defines sport as:

   "a [...] all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.

   b This Charter complements the ethical principles and policy guidelines set out in:

   i the European Convention on Spectator Violence and Misbehaviour at Sports Events and in Particular at Football Matches,

   ii the Anti-Doping Convention."

   Various legislators have also "risked" defining the concept. By this they have created a legal framework of human activity within which their laws are applicable. On the other hand--and contrary to what one might expect--not every Sports Act contains a definition of sport. (6) In these cases, sport is presumed to be a social phenomenon that does not need defining further. Where the various Sports Acts do contain definitions of sport, these are usually in the form of references and do not touch upon the essence of the phenomenon. There is no homogeneous approach to the concept whatsoever. There are definitions determined by the objective of sport (e.g. competition or health), or the capacity in which sport is played or the social function of sport.

   2.1. Objectives of sport

   Sport may be considered physical activity for a specific purpose, which may be either sportive and physical competition or health.

   2.1.1. Objective no. 1: competition

   The Croatian Sports Act (7) defines sport as: "physical activities and games that are organized so as to attain sporting achievements realised according to defined rules of competition (sporting competitions)". The Sports Act of Luxemburg (8) contains a similar definition: "Par sport de competition, on entend le sport qui se deroule dans un cadre organise en fonction de regles et de classements." The Ley del Deporte of Chile (9) considers sport to be: "[...] aquella forma de actividad fisica que utiliza la motricidad humana como medio de desarrollo integral de las personas, y cualquier manifestacion educativo-fisica." Under the Mongolian Law of on Physical Culture and Sports (10) sport is: "[...] competitions formed as a result of physical culture development and activities for preparations to and participation in them". The Estonian Sports Act (11) also recognizes an educational goal, as it defines sport as: "[...] playing activity of a predominantly competitive and physical nature, or a corresponding educational activity."

   2.1.2. Objective no. 2: health

   Under a number of Sports Acts the objective of sport in addition to being an activity in a competitive setting may also concern the physical or mental development of the athlete. The Croatian Sports Act (12) also considers sport to be: "[...] physical activities and games that are done in an organized way for the improvement of health or for recreation". The Irish Sports Council Act (13) provides a similar definition, although this is given to distinguish between "competitive sport" and "recreational sport". Competitive sport concerns: "[...] all forms of physical activity which, through organised participation, aim at expressing or improving physical fitness and at obtaining improved results in competition at all levels." The Latvian Sports Act (14) shows a similar mixture of aims. In this Act the term "sport" is understood to mean: "individual or fixed activity of any type for maintenance and improvement of physical and mental health as well as for acquisition of success in sports competitions". The Maltese Sports Act (15) also combines objectives: "Sport includes all forms of physical or mental activity which, through casual or organised participation or through training activities, aim at expressing or improving physical and mental well-being, forming social relationships or obtaining results in competition at all levels", as does the Swedish Sports Act: (16) "[...] sports activities mean performance-oriented competitive sport and health-oriented broad sports activities and exercise which include a central element of physical activity." In the Czech Sports Act: (17) "[...] the concept of sport denotes all forms of physical activities performed within and outside organisations and aimed at the harmonious development of physical and mental condition, health consolidation, and achievements in sports competitions at all levels." The definition in the Mongolian Sports Act (18) is also concerned with health: "Physical culture is a component of the social culture and means activities for creating intellectual and material values for the purposes of developing the human body, strengthening health and improving the activity of mobility". The Sports Act of Iceland (19) adds mental health to physical health as a goal where it defines sport as any physical training for the purpose of improving physical and mental ability, health and stamina. China (20) "[...] advocates citizens' participation in social sports activities so as to improve their physical and mental health." The term "social sports activities" is not defined further.

   It is possible to separate the two distinct purposes of sport, but they are usually considered complementary.

   In various Sports Acts the definition of the term "sports" also indicates-possibly in addition to what sport should be understood to mean-in what capacity sport is played and the social function of sport.

   2.2. The capacity in which sport is played

   The definitions of sport in many Sports Acts make a distinction as to the capacity in which sport is played so as to define the scope of the various provisions. The Canadian Sports Act (21) provides that: "[F]or the purposes of the Fitness and Amateur Sport Act, "amateur sport" means any athletic activity when engaged in solely for recreation, fitness or pleasure and not as a means of livelihood [...]." Sport can thus be divided into different categories in accordance with the capacity in which it is engaged in. The Sports Act of Estonia (22) also makes this distinction between recreational and competitive sport: "[...] recreational sport--essentially a non-competitive physical activity aimed at taking care and strengthening of health; competitive sport--sports activity aimed at achieving success in public sports competition". The Irish Sports Act (23) also contains this distinction, as "competitive sport" is defined as: "[...] all forms of physical activity which, through organised participation, aim at expressing or improving physical fitness and at obtaining improved results in competition at all levels" and...