Towards a typology of (international) comparative sports law (research).

• Author: Siekmann, Robert C.R.

1. Introduction

   Sports law is an independent field of law: it complies with the requirements that can be set for the existence of fields of law. (1) Sports law consists of a private and a public segment. The private segment is formed by the rules of organised sport. Organised sport is built up of national organisations for each sport, which are members of regional (continental) and global federations. This segment is a hierarchical pyramid with global federations such as the world football association FIFA at the top, with UEFA as the regional organisation for Europe. There is also the Olympic Games, under the auspices of the International Olympic Committee, which heads the national Olympic Committees and with which global federations cooperate.

   The rules of organised sport are largely of a transnational character. For each sport there is in fact a single legal order in which the national and international levels are highly integrated. The rules of football, for example, are the same worldwide and there are uniform regulations for transfers of professional footballers from one club to another.

   The private segment of sports law, also known as lex sportiva, forms the core of the legal field. There is also a public segment that bears far more of an incidental character in terms of regulations. This consists primarily of national legislation and a number of regional and universal treaties that relate particularly to sport. Naturally, sport is in general subject to the national and international public legal systems. In the European Union, for example, the jurisprudence of the European Court of Justice has led to the development of what could be described as European sports law. (2)

   Writing from an international private law perspective, Kokkini already stated in 1988 that if one reviews the comparative law publications of recent decades, it is easy to see that, with the exception of the recognition that comparative law is not a branch of objective law, such as family law or maritime law, and that it can be helpful in achieving many objectives, there is as yet no generally accepted theory about comparative law. Those engaged in comparative law appear to be very enthusiastic about distinctions. Almost everyone active in the field feels obliged to introduce at least one new distinction, which, needless to say, reduces the chances of reaching a consensus about the theoretical principles of comparative law - and this is not even taking the confusion caused by the use of the same terms to mean different things into account. A few examples of such distinctions are:

   1. internal and external comparative law (comparing legal systems of countries with the same or a different social system);

   2. national and international comparative law (bilateral, between two national legal systems, or multilateral up to and including universal);

   3. comparative law in the stricter and wider sense (the study of normative rules as such or also including the reasoning of law and the wider environment of the rules);

   4. horizontal and vertical comparative law (comparing legal systems that are equivalent by law, i.e. sovereign legal communities, or comparing rules of a 'lower' and 'higher' order, such as national and supra-national rules, for example); and: e. macro and micro comparative law (comparing legal systems or groups of legal systems in their entireties or comparing specific parts of different legal systems). (3)

      The above-mentioned distinctions (hereafter: "Kokkini-criteria"0 in principle can also be relevant in the context of (international) comparative sports law research (international" is used here in the ordinary meaning according to which comparative sports law per definition is "international"; international sports law in fact is a pleonasm; cf., "national" = bilateral according to "Kokkini-criterion" a); bilateral means international, between two states (!)). The character of each of these criteria may be described as follows:

   1. internal/external: socio-political;

   2. national/international: geographical;

   3. strict/lato sensu: literal v sociological/teleological (spirit of the law) legal interpretation;

   4. horizontal/vertical: hierarchic; and

   5. macro/micro: scope of the legal comparison. Of course, the follow-up of a) - e) might be changed in a more logical order: geographical / socio-political / hierarchic / interpretative/ scope (this order is used in this article below).

      As already stated, one of the few points on which there is consensus among authors concerns the recognition that comparative law can be helpful in achieving many objectives. An overabundance of literature has been published about these objectives, as authors seek to outdo each other in maximising ideals and expectations in relation to comparative law. According to Kokkini, efforts have been made to place the different objectives of comparative law into two broad categories: theoretical and practical. (4)

      It is remarkable that a criterion regarding the purpose(s), the ratio of legal comparison is missing amongst the "Kokkini-criteria" themselves. Of course, there may be a purely academic/scientific or theoretical purpose. However, legal comparison is a scientific research method for practical purposes too, like unification or harmonization of the law (international perspective), or the national perspective of improvement of the law also in the light of "best practices", "lessons learned" from elsewhere, from abroad. So, an additional criterion as to purpose has to be formulated: f) theoretical/practical.

      From the perspective of contributing to the developing of a theory of legal comparison, regarding sports law in principle the following options of types of legal comparison would exist: 1) the comparison between national sporting rules and regulations (per sport and theme) ("private part"); 2) the comparison between international sporting rules and regulations (per theme) ("private part"); 3) the comparison between national legislation (per theme) ("public part"); 4) the combined comparison between 1 and 2 on the one hand and 3 on the other. Additionally, for example the globally valid Laws of the Game (association football) might be scrutinized for improvement by comparing them with those of other, in particular comparable team sports (why, for example, not introducing the temporary ban from the playing field which is known from ice hockey, etc. etc.?) The striking aspect of international) comparative sports law is of course the role played by what is called here the private segment or part, that is the NGO or transnational law of sporting organisations. So, in the context of (international) comparative sports law research, a criterion must be added to the "Kokkini-criteria": g) private/public (or public/private if as a starting-point is taken that the public part is of a hierarchically higher legal order and not the circumstance that the private part is the hard core/inner circle of sports law). Combined, private/public legal comparison could be also a special example of horizontal/vertical comparative research. The same would apply to the combined thematic comparison between international (INGO) and national (INGO) sporting rules and regulations (for example, of course only in case the international rules and regulations are not to be "copied" at the local level for reasons of hierarchy (cf., for example the WADA Code)). As to the internal/external "Kokkini-criterion" it should be noted that countries may have similar social systems at large, but different sporting systems (cf., interventionist and non-interventionist national sports models in the European Union (and beyond), see below); the opposite is less imaginable, but might also be true.

      In this article, I will present the international comparative research that was undertaken by the ASSER international Sports Law Centre in the previous decade, in most cases in cooperation with other national and in particular international sports law centres and individual researchers at those centres or connected with universities. The ASSER experience is used here to apply and test the "Kokkini-criteria plus" in practice. To the survey will be added an example of the legal comparison between continental sports systems, the European and North American ones (re: the "Americanization" debate in Europe). This can be considered macro legal comparison at the private, NGO (transnational) level, since it concerns jurisdictions, that is sporting jurisdictions, at large.

      In chronological order the following research projects were undertaken and reported on:

      - Klaus Vieweg and Robert Siekmann (eds), Legal Comparison and the Harmonisation of Doping Rules; Pilot Study for the European Commission, Beitrage zum Sportrecht Band 27, Berlin 2007 (EU commissioned study 2001]5;

      - Promoting the Social Dialogue in European Professional Football (Candidate EU Member States), November 2004 [EU-commissioned study; see also: Robert C.R. Siekmann in ISLJ 2004/3-4 pp. 31-33];

      - Football Hooliganism with an EU Dimension: Towards an International Legal Framework, November 2004 [EU-commissioned study];

      - Janwillem Soek, Sport in National Sport Acts and Constitutions: Definitions, Ratio Legis and Objectives, The International Sports Law Journal (ISLJ) 2006/3-4 pp. 28-31 and 33-35 [Netherlands Ministry of Sport commissioned study];

      - Robert Siekmann, Study into the Possible Participation of EPFL and G-14 in a Social Dialogue in the European Professional Football Sector, ISLJ 2006/3-4 [G-14 European Football Clubs Grouping commissioned study];

      - Health and Safety in the Sport Sector, May 2009 [EU-commissioned study];

      - Study into the Identification of Themes and Issues which can be Dealt with in a Social Dialogue in the European Professional Football Sector, May 2008 [EU-commissioned study];

      - Study into the Identification of Themes and Issues which can be Dealt with in the European Professional Cycling Sector, October 200 [EU-commissioned...