What Is Sports Law? Lex Sportiva and Lex Ludica: A Reassessment of Content and Terminology

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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'. …