Transnational sports law.

• Author: Latty, Franck

Certain legal expressions are in everyday use in doctrine or practice, as if their meaning was obvious, despite the conceptual vagueness that continues to surround them. The notion of "Transnational Sports Law" undoubtedly falls into this category. With this contribution, I aim to demonstrate that, regardless of the meaning given to the expression, the addition of the adjective "transnational" has conceptual virtues that provide sports law with a pertinent analytical framework.

Yet it is still necessary to acknowledge the existence of "sports law", something which is rejected by a certain school of thought. For E. Grayson, for example

"No subject exists which jurisprudentially can be called sports law. As a soundbite headline, shorthand description, it has no juridical foundation; for common law and equity create 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 social or jurisprudential category [...]" (1) Rejecting the idea of sports law, these authors entitle their discipline "Sport and the law", which consists of analysing the manner in which the law - namely state law (e.g. employment law, contract law, criminal law, etc.) - applies to the sporting domain. At best, certain of these authors recognise that the particularities of sport give rise to an independent offshoot of state law (2). This restrictive doctrinal approach can be criticised for at least two reasons:

i) First of all, because it can only be relevant for certain countries - generally through common law - which have not adopted legislation in the sporting domain. However, other states - often by tradition of civil law - have legislated on the subject. This is very much the case for France, which since the second half of the 20TH century, has developed an increasingly dense body of legislation that is now grouped together in a sporting code (3) covering numerous aspects of sporting activities. The code essentially allocates responsibilities in terms of the organisation of sporting activities between government, regional authorities, associations, companies, federations, the National Olympic Committee, etc., specifying the rights and obligations of the different parties involved (athletes, trainers), as well as organising the anti-doping effort; it also regulates the practice of sporting activities (sports facilities, insurance, hygiene and safety, etc.) and includes other measures relating to the funding of sport. Through a system of public service delegation, French law even operates a form of nationalisation of the national federations: although they retain association status under private law, their decisions are regarded as administrative decisions and come under the competence of the administrative judge. Undoubtedly, therefore, there exists French sports law of state origin which even attracts to it the sporting standards of the federations, thus invalidating the theory of "Sports and the Law".

ii) Secondly, the "Sports and the Law" theory is statecentred, ignoring the law produced by the sporting bodies, whether they are international (the international federations and the International Olympic Committee, in particular) or national in scope. However, it is these bodies which, even before the states, organise sporting competition in its manifold aspects (rules of play, technical rules, qualification of athletes, anti-doping rules, in some cases the status and contracts of athletes, etc.). Taking the view that these standards cannot claim to have the quality of legal rules amounts to having a highly restrictive conception of the law, which is well out of step with the realities on the ground. The "Sports and the Law" theory finds its roots in the state positivism that necessarily links the law to the state, the sole entity capable of imposing compliance through physical constraint (4). However, pluralist theories have shown that neither power nor law are in essence linked to the state, but that they manifest themselves in any organised social group, whether it be pre-, infra-, supra- or para-state (5). From this perspective, it becomes clear that sporting bodies do indeed produce legal rules - a fact which in no way prejudices their degree of autonomy with regard to the law emanating from the states.

Having confirmed the existence of sports law, resulting both from public (state or even, by extension, inter-state) and private sources (the rules of sporting bodies), it is now necessary to analyse what the adjective "transnational" adds to or takes away from the concept.

An a contrario approach would permit the exclusion of sports law of national scope from the notion. Once the idea of transnationality involves going beyond a defined national territory, both the state rules applicable to sport and the rules of the national sporting bodies have to be set aside. It should, however, be noted that the rules of the national federations are often merely a transposition of the rules laid down by the international federations.

Transnational Sports Law can also be distinguished from International Sports Law (6), as the concept of international law (understood as international public law) originally refers to the law applicable to inter-state relations. With the diversification of international society, international law these days involves more varied subjects (intergovernmental organisations and private bodies, to a certain extent), of which it governs the status or relations. International law still only intervenes infrequently in the field of sport, so that, logically, the sporting bodies are not characterised as a subject of international law - with the possible exception of the International Olympic Committee, which has succeeded in obtaining quite unique status, not dissimilar to that of the International Committee of the Red Cross (7).

With the a contrario approach proving insufficient to precisely define the concept of Transnational Sports Law, a positive definition becomes inevitable. If we depart the sporting domain for a moment, it appears that the notion of transnational law, very common in legal literature and even in practice, is characterised by an ambiguity which, far from constituting an obstacle to its application to the field of sport, on the contrary helps to highlight the diversity of the legal phenomenon that is sports law.

Three meanings can be drawn from this: a wide meaning, based on the theory of Jessup, covering any rule with external scope (I); a hybrid meaning, characterising the legal relations between public and private entities (II); a strictly private meaning, referring to the sectoral rules produced by self-regulated private global parties (III). While the last of these is the most meaningful from a conceptual point of view, the fact remains that the first two help to illustrate the varied dimensions of sports law.

1. The wide conception: Jessup's transnational law

1. The spread of the expression "transnational law" within legal circles owes a great deal to the book of the same name published in 1956 by the renowned American lawyer Philip Jessup, who went on to become a judge in the International Court of Justice during the 1960s. Mindful of going beyond the traditional distinctions between internal law and international law and between public and private law, Jessup proposes the grouping together under a single description of all rules with an extra-national dimension:

   "I shall use, instead of "international law" the term "transnational law" to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories." (8)

   Apart from the rules of public international law and the national rules of private international law, the concept also encompasses internal law with international scope - public and private (civil or criminal) - and the principles applied to legal relations forged directly between private bodies. Defined in this way, transnational law embraces all legal rules, independently of their origin, that exceed the framework of a single national legal order. Through this emphasis of the existence of standards that were...