Sport governance in Portugal.

• Author: Mestre, Alexandre Miguel

1. Legal Framework

   1.1. Sport at the Portuguese Republic Constitution

   Since the first Portuguese Republic Constitution ("Constituicao da Republica Portuguesa") - PRC - dated from 1976, sport is recognized as a fundamental right. The "right to physical culture (1) and sport" is enshrined in Article 79, under the umbrella of the Section dedicated to "Rights, Freedoms and their Guarantees" in Title III which covers "Economic, social and cultural rights and duties".

   Article 79 (1) stipulates a general right to physical culture and sport as follows: "Everyone shall possess the right to physical education and sport". This means that all citizens are entitled to sport in its various dimensions and scenarios: school; recreation; high performance; amateurism; professionalism, informal activities, inter alia.

   In its turn, no. 2, added at the time of the 1989 constitutional revision, states as follows: "Acting in cooperation with schools and sporting associations and groups, the state shall be charged with promoting, stimulating, guiding and supporting the practice and dissemination of physical culture and sport, and preventing violence in sport." One can infer from this provision that instead of a State's monopoly, there is a collaborationist and decentralized model. The PCR demands State to have a central role in sport policies but simultaneously refuses a sole intervention of the State. In other words, the State's intervention shall be developed necessarily in close collaboration with public and private stakeholders, mainly schools, the "sports movement" (private and autonomous sport governing bodies such as clubs, associations and federations) and local authorities (2).

   Apart from and in conjunction with Article 79, sport is covered by some other constitutional provisions, both explicitly and implicitly:

   (i) Further to Article 59 (1) (d), "workers have the right to rest and leisure time, a maximum limit on the working day, a weekly rest period and periodic paid holidays";

   (ii) According to Article 71 (1), "[c]itizens with physical or mental disabilities shall fully enjoy the rights and shall be subject to the duties enshrined in this Constitution and save the exercise or fulfilment of those for which their condition renders them unfit." If one read this provision in conjunction with Article 79, one must conclude that handicapped citizens have a fundamental entitlement to sport;

   (iii) Pursuant to Article 64 (1) "[e]veryone shall possess the right to health protection and the duty to defend and promote health". Further to no. 2 of the same provision, this right to health protection shall be fulfilled, among other means, by "(...) promoting physical fitness and sport at school";

   (iv) The constitutional provision related to youth is also very relevant for sport. In fact, as stated in Article 70 (1) (d), "[i]n order to ensure the effective enjoyment of their economic, social and cultural rights, young people shall receive special protection, particularly (...) [i]n physical education and sport";

   (v) Article 65 enshrines the "right to housing and urban planning" In order to ensure the enjoyment of the right to housing the State shall be charged with "[p]lanning and implementing a housing policy that is embodied in general town and country planning documents and supported by urban planning documents that guarantee the existence of an adequate network of transport and social facilities". There is no doubt that sport facilities integrate the concept of "social facilities";

   (vi) Article 66 (1) states that "[e]veryone shall possess the right to a healthy and ecologically balanced human living environment and the duty to defend it";

   (vii) Article 69 enshrines the right of children to the protection of society and the State, "with a view to their integral development", i.e., children shall possess the right to take part in recreational and sporting activities suitable for their age;

   (viii) According to Article 73 (1) and (2) "[e]veryone shall possess the right to education and culture" and it is for the State to "promote the democratization of education and the other conditions needed for education" and to contribute to equal opportunities, the overcoming of economic, social and cultural inequalities". Physical culture and sport are very useful tools for such State's duty since they contribute for some of the objectives provided in the said constitutional provision, namely "(...) the development of the personality and the spirit of tolerance, mutual understanding, solidarity and responsibility, to social progress and to democratic participation in public life."

   1.2. The evolution of "Sports Law" in Portugal

   The first Portuguese legislation relevant to sport which structured the sports system dates from 1932 (3). With subsequent legislation enacted in 1943 (4), which introduced the regulations governing the General Directorate of Physical Education, Sport and School Health (5), the approach of the law to sport became less harsh and began to see sport as a pleasure, to be afforded to the citizenship. Despite accepting payment in order to enjoy sport as a pleasure, that new legislation made no mention of professional sport).

   The first time that professionalism is referred to in a law occurred only in 1960 (6). The legislator admitted the existence of professional sportsmen and sportswomen even so with great reservations in the so-called "sports of the masses", i.e., those sports in which practice was starting to demonstrate the inevitability of the professionalization.)

   Only after the revolution of the 25th of April of 1974 start to be talk of real professional sport, but always in connection with topics such as the ethics of sport, namely violence and doping. The inclusion of physical education and sport in the PCR was the starting line of a process of a qualitative and quantitative legal interventionism of the State in the field of sport. Important rules were already enacted in the eighties' decade. However it was still a period of disperse and non integrated sports law policy.)

   In 1990 everything changed. Since then the legislation related to sport has been based on "Basic Laws" ("Leis de Base"). This type of laws "develop the general basis of legal frameworks" (7), i.e., they contains general principles and programmatic rules, which are then developed not also by laws (adopted by the Parliament) but also and mostly by decree-Laws (adopted by the Government). Therefore, all the ordinary legislation directly and indirectly related to sport is a development of a legal framework structured by the "Magna Carta" of physical education and sport.

   Currently it is in force the "Basic Sports Law of Physical Activity and Sport" ("Lei de Bases da Actividade Fisica e do Desporto), adopted in 2007 (8), which was preceded by the "Basic Law of the Sports System" (9) ("Lei de Bases do Sistema Desportivo"), approved in 1990, and by the "Basic Law of Sport" ("Lei de Bases do Desporto"), enacted in 2004. (10)

   1.3. The current legal regime in the field of sport and its influence on the Portuguese "sports governance"

   The scope of the "Basic Sports Law of Physical Activity and Sport" (11) is to establish the general framework of the sport system and its aim is to promote and offer guidance to the generalization of the sportive activity as "(...) an indispensable cultural factor to the complete education of the human being and to the development of the society."

   The "Basic Sports Law of Physical Activity and Sport" comprises several different topics that cover the different subsystems of the Portuguese Sports System, namely sport at school (curricular and extracurricular activities) and at the University; sport in the armed forces; sport at the workplace; sport in prisons; sport in the armed forces and in the security forces.

   Legislation covers not only sport for all but also high professional and high performance (or high level) sport. The legislator has also a horizontal and holistic approach since it adopts several laws that discipline the interplay between sport and other sectors of the society such as culture, youth, tourism, and environment. Sports medicine, sports insurance, taxation in sport, sports infra-structures or sports ethics (doping, violence associated to sport, racism, xenophobia, intolerance, and corruption); image rights; merchandising; and sponsoring are other paradigmatic examples of the public intervention of the State in sport by means of the adoption of legislation.

2. Institutional Framework

   2.1. Administrative organization in the sports field

   2.1.1. The Government Structure for sport

   The Government intervenes in sport through the work of the Presidency of the Council of Ministers, namely by the Minister of the Presidency which is supported by the Secretary of State for Youth and Sport (12). The role of government in sport is to establish the basis upon which all sports activities cab be developed and fostered to create the technical and material conditions for sport development.

   2.1.2. The administrative organs with competence in the field of sport

   2.1.2.1. The Portuguese Sport Institute

   The Portuguese Sport Institute (13) ("Instituto do Desporto de Portugal") performs the duties and exercises the powers of the Presidency of the Council of Ministers and is an organ of the Indirect State Administration, with administrative, financial autonomy and its own assets (14). It is governed by its own bylaws (15) and its role is to support the definition, implementation and evaluation of sports public policy as well as to promote the generalization of physical exercise. It is also responsible for supporting normal and high performance sport via the provision of technical, financial and human resources.

   So far as security is concerned, the Portuguese Sport Institute is the body responsible for (i) proposing measures with a view to the prevention and combating of racism and xenophobia in sport; (ii) proposing and...