Towards a 'lex sportiva'.

• Author: Blackshaw, Ian
• Position: PAPERS

Introductory

Is there such a thing as 'Sports Law'? Opinion on this subject is divided amongst academics and practitioners alike. (1)

According to the late Edward Grayson, the doyen of authors on sport and the law, jurisprudentially speaking, there is no such thing as 'sports law'. He argues that:

"As a soundbite headline, shorthand description, it has no juridical foundation; for common law and equity creates no concept of law exclusively relating to sport. Each area of law applicable to sport does not differ from how it is found in any other social or jurisprudential category..." (2) Likewise, Charles Woodhouse, CVO, the former legal adviser to the Commonwealth Games Foundation, a pioneer legal practitioner in the field of sport and a founder member of the British Association for Sport and the Law and the UK Sports Dispute Resolution Panel, is adamant that there is no such thing as 'sports law'. In a reflective valedictory article, he expresses his opinion as follows:

"I have often said there is no such thing as sports law. Instead it is the application to sport situations of disciplines such as contract law, administrative law (disciplinary procedures), competition law, intellectual property law, defamation and employment law." And adds in a slightly contradictory manner but then correcting himself:

"I hope the next generation of sports lawyers will enjoy it as much as I have over the past 25 years. But do remember there is no such thing as sports law." (3) Again, according to Hayden Opie, of the University of Melbourne, Australia, 'sports law' is one of those fields of law which is applied law as opposed to pure theoretical law:

"Rather than being a discipline with a common legal theme such as criminal law, equity or contract law, sports law is concerned with how law in general interacts with the activity known as sport. Hence, the label applied is law. Yet there is an increasing body of law which is specific to sport. This produces debate among scholars over whether one should use the term sports law, which indicates a legal discipline in its own right or 'sport and law' which reflects the multifarious and applied nature of the field." (4) On the other hand, Beloff, Kerr and Demetriou, all practitioners, recognise the emergence and importance of 'sports law':

"..... the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport, differently from other activities or bodies. Discrete doctrines are gradually taking shape in the sporting field....... English courts are beginning to treat decisions of sporting bodies as subject to particular principles." (5) In other words, sport is 'special' and, as such, is deserving of 'special treatment' from a legal point of view. This is certainly true at the EU level reflecting the views of the European Commission and the European Court of Justice, where the term the 'specificity of sport' (also referred to, particularly by Sports Governing Bodies, as the 'sporting exception') has been coined and is widely used in various Commission rulings and Court decisions in sports cases. (6) This term refers to the special characteristics and dynamics of sport recognised in the EU Council of Ministers Nice Declaration on Sport of December 2000. (7) And further recognised in the European Commission 'White Paper' on Sport of July 2007. (8)

Likewise, Lewis and Taylor, both academics and practitioners, have the following to say on the subject of 'sports law':

"...... the editors share the belief of many writers in the field that in at least some areas, for example where international institutions such as the Court of Arbitration for Sport review the decisions of sports governing bodies, a separate and distinct body of law inspired by general principles of law common to all states is in the process of development." (9) So, leaving aside the argument whether there is such a thing as 'sports law' (a 'Lex Sportiva') - the author of this Paper, incidentally, takes the view that there is - which, Lewis and Taylor consider is a matter of academic rather than practical interest, (10) we turn now to consider the contribution of the Court of Arbitration for Sport to the development of a 'Lex Sportiva'.

CAS and a 'Lex Sportiva'

During its 26 years of existence, the CAS has dealt with a substantial number of cases covering a wide range of sports related legal issues. For example, a contractual dispute concerning the organisation of a particular sport's world championships; (11) the equivalent of a 'judicial review' of a decision of a particular sports governing body; (12) a challenge to the UEFA Rules restricting the multiple ownership of football clubs (the so-called ENIC case) (13); as well as an increasing number of football transfer cases on appeal from the FIFA Dispute Resolution Chamber, following the acceptance by FIFA in 2002 of the CAS as the final 'court of appeal', especially compensation disputes. (14)

More recently, the CAS, on appeal from a ruling of the IAAF, dealt with the interesting case of Oscar Pistorius, the South African double leg amputee, and his claim to take part in the 2008 Beijing Olympics as if he were an able-bodied athlete. Although he won his appeal before CAS, in the event, he did not, in fact, qualify for a place in the Beijing Olympics. However, it should be noted that the Decision does not create a legally binding precedent as the President of the CAS Panel, Professor Martin Hunter, pointed out in the Ruling as follows:

"3. It is emphasised that the scope of application of this Ruling is limited to the eligibility of Mr Pistorius only and, also, only to his use of the specific prostheses in issue in this appeal.

4. It follows that this Ruling has no application to the eligibility of any other amputee athletes, or to any other model of prosthetic limb; and it is the IAAF's responsibility to review the circumstances on a case-by-case basis, impartially, in the context of up-to-date scientific knowledge at the time of such review."

   Although CAS arbitrators are not generally obliged to follow earlier decisions and obey the sacred Common Law principle of 'stare decisis' (binding legal precedent), (15) in the interests of comity and legal certainty, they usually do so. As a result of this practice, a very useful body of sports law is steadily being built up. (16) But, see the conflicting approaches taken by two different CAS Panels on valuing an anticipatory breach of a player's contract in the CAS Appeal Cases of Andrew Webster and Matuzalem. (17) The approach taken in the second Case, in the opinion of the author of this Paper, being the correct and preferred one!

   The extent to which the CAS is contributing to a discrete body of sports law ('lex sportiva') is a complex and controversial subject and also, as we have seen in relation to 'sports law', also divides academics and practitioners alike. For example, Ken Foster, who is generally credited with coining the term 'lex sportiva', argues that the CAS, as an institutional forum, is not yet:

   "... globally comprehensive ... [but] has improved by becoming more independent of the International Olympic Committee and thus satisfying Teubner's criterion ofexternalisation." (18) And, according to Professor Jim Nafziger, the CAS 'lex sportiva' although "still incipient", the general principles and rules derived from CAS Awards are becoming clearer on such issues as:

   "... the jurisdiction and review powers of the CAS; eligibility of athletes; and the scope of strict liability in doping cases..... A truly effective body of jurisprudence generated by CAS awards, however, will require more development before the emerging lex sportiva can become a truly effective regime of authority." (19) In Nafziger's view, if there is not yet a 'lex sportiva' as a result of CAS Awards, which, as he also points out, in any case, like Arbitral Awards generally, are legally binding on and only have legal effects between the parties (inter partes), there is certainly, in his opinion, a 'lex specialis' being established through CAS...