What is sports law? Lex sportiva and lex ludica: a reassessment of content and terminology.

• Author: Siekmann, Robert C.R.
• Position: ARTICLES

1. Introduction

   What is 'sports law'? This is a question often asked by students, academics, lawyers and lay persons. Anyone attempting to formulate an answer often searches in vain for a response that is compelling and demonstrates some modicum of understanding of what 'sports law' is. Perhaps the difficulty in articulating a response is, in part, a result of uncertainty related to what information is being sought. Is the question as to what 'sports law' is intended to focus attention on the content of the practice of 'sports law'? In other words, which substantive areas of practice fall under the rubric of 'sports law'? Or is more particularly the role of the sports lawyer intended as the principal focus? In this regard, perhaps what is sought is information concerning the services provided by a lawyer in this field. Finally, perhaps the inquirer seeks an answer to a more fundamental consideration: does such a thing as 'sports law' exist? (1)

   In other words, can sports law be considered as an independent substantive area of the law, does it enjoy recognition as such, and if so, why? This is actually the primary question that requires answering, because the answer to this question is not unchallenged. The question of what sports law is can then be addressed. This address is structured as follows: 1) Does sports law, a sports law, sports law as an area of law exist?, 2) What does sports law consist of?, 3) a reassessment of content and terminology, and 4) what is the 'hard core' of sports law? The reassessment includes my own vision of the subject matter and issues that go to make up sports law, partly in the light of a presentation of existing, previous positions and views in this regard.

2. Does such a thing as 'sports law' exist?

   Beloff says that the question of whether a 'lex sportiva'--which he apparently uses literally in the sense of 'sports law' here (2)--exists is a persistently recurring theme. Whether a cohesive set of rules exists or whether sports law is nothing more than a mosaic arbitrarily constructed from a diversity of generally accepted and separate areas of law--the law of obligations, torts, intellectual property, administrative law--is the subject of continuing debate. The issue is not purely academic, a qualification which cynics are inclined to use for an issue of no practical importance. Proponents of the first argument (sports law does exist) supposedly do so partly out of a wish to enhance the status of the subject (3), which does not necessarily mean that advocates of the latter argument (sports law does not exist) can be said to be motivated in any way by a wish to belittle that status. Nonetheless, those who advocate the existence of 'sports law' clearly choose Latin terminology in order to lend the subject a semblance of classical antiquity, sometimes using the alternative term 'lex ludica' (4), even though this is a rather unfortunate choice since it might come across as faintly ludicrous if incorrectly translated ('playful law'). The question of whether 'sports law' exists is not of enormous importance, but nor is unimportant according to Beloff. (5) Mitten and Opie remark that the academic study of the law regulating sport is relatively new. In effect, they say, there is no consensus amongst scholars and academics who regularly examine the rapidly growing body of rules and case law that governs the sports industry as to whether 'sports law' is an independent area of the law or merely the application of general legislation, which would better be labelled as 'sport and the law'. The debate revolves around the question of whether the area displays the unique and coherent characteristics of a separate collection of rules or whether principles from more established legal disciplines merely appear to be finding particular or special application. (6) Davis has outlined lined a possible assessment framework for answering this question in relation to the subject of 'sport and the law'. But before defining that framework, those criteria, he comments that there are, roughly speaking, three views or positions.

   1. the traditional view that 'sports law' does not exist: no separately identifiable body of law exists that can be designated as sports law and the possibility that such a corpus of law will ever develop is extremely remote; according to this interpretation, 'sports law' is nothing more and nothing other than an amalgamation of elements from different substantive areas of law that are relevant in the context of sport; the term 'sports law' is then incorrectly chosen since sport as an activity is governed by the legal system as a whole; (7)

   2. the moderate position contends that 'sports law' has the capacity to develop into an independent area of law; in 2001, when Davis' article is published, proponents of this view identify developments that would appear to point in that direction; they draw attention to the de facto unique character of certain issues in sport that require specialised analysis and the in some cases unique application of the law to sport; and:

   3. 'sports law' is a separate area of the law; supporters of this view highlight the increase in legislation and court case law specific to sport as a sign of this. Commentators argue that those who view sports law merely as an amalgamation of various other substantive areas of the law ignore the present-day reality that very few substantive areas of the law fit into separate categories that are distinct from and independent of other substantive areas of the law; overlaps exist not only within sports law, but within other areas of law as well; the inter-disciplinary nature of sports law has in any event not helped the case for establishing the existence of a separate legal discipline; the supporters of this view argue, additionally, that the unwillingness to recognise sports law as a specific body of law appears to reflect the inclination of some intellectuals not to take sport seriously. In this regard, they emphasise the tendency to marginalise the academic study of sports rather than treat it as any other form of business.

   The debate on the existence of sports law as an independent field of law is not extraordinary given that questions about the legitimacy of new fields of law are not uncommon. Similar controversy accompanied the emergence of 'computer law', for example. Such diverse areas of the law as employment law, health law and environmental law ensured similar fates until they became generally recognised as specific fields of law. The process of recognising a new area of the law is slow-moving, because it is connected with a fundamental process of change in society. Inherent in this process of transformation is the development of new behavioural patterns and forms of cooperation that seek acceptance. Whether a particular field of law ought to be recognised as such is not an exact science. The process of identifying, designating and naming areas of the law is a complicated matter and is, to a certain extent, often arbitrary; there is no official recognition procedure. It is a process whereby legal practitioners and academics determine that the law is increasingly being applied to a new area of society. According to Davis (8), at the end of the day, the answer to the question of whether sports law is recognised as an independent area of the law may depend on the perceptions of those practising, teaching and conducting academic research into that sports law.

   2.1. Assessment framework

   Which factors or criteria can be applied in order to determine whether an independent legal area exists?

   Davis lists no fewer than eleven in his article. While these factors are a guide, their meticulous application need not necessarily provide a definitive answer to the question of whether an independent sports law discipline exists. The factors are:

1. unique application by courts of law from other disciplines to a specific context;

2. factual peculiarities within a specific context that produce problems, requiring specialised analysis;

3. issues involving the proposed discipline's subject matter must arise in multiple, existing, common law or statutory areas;

4. within the proposed discipline, the elements of its subject matter must connect, interact or interrelate;

5. decisions within the proposed discipline conflict with decisions in other areas of the law and decisions regarding a matter within the proposed discipline impact another matter within the discipline;

6. the proposed discipline must significantly affect the nation's (or the world's) business, economy, culture or society;

7. the development of interventionist legislation to regulate specific relationships;

8. publication of legal casebooks that focus on the proposed discipline;

9. development of law journals and other publications specifically devoted to publishing writings that fall within the parameters of the proposed field;

10. acceptance of the proposed field by law schools; and:

11. recognition by legal associations, such as bar associations, of the proposed field as a separately identifiable substantive area of the law.

    Davis himself has not applied this assessment framework explicitly and systematically to sport. If we nonetheless apply the above criteria, which are not always clearly formulated, to 'sport and the law' then there is no doubt that we can conclude in 2011 that an independent area of the law exists that is fully deserving of the name 'sports law'.

    The above listed factors particularly concern the internal cohesion within the area concerned and its own, special, independent character which distinguishes the area from the legal environment. This is probably most systematically expressed in the term 'sport specificity' that has been developed in the context of European law. This term indicates the extent to which the European Court of Justice in particular has recognised exceptions to regular law, because in some cases the rules of organised sport cannot...