The Etymology of the Termini Technici Lex Sportiva and Lex Ludica: Where Do They Come From?

Article excerpt

In 2001, MacLaren wrote that the term 'lex sportiva' was coined by the acting Secretary General of the Court of Arbitration for Sport, Matthieu Reeb, at the time of the publication of the first Digest of CAS decisions stretching over the period from 1986 to 1998. (1) Other than in the Introduction to Digest I which is silent on the matter (2), in the introduction to the Digest of CAS Awards II 1998-2000, Reeb writes that the Digest of CAS Awards 1986-1998 recorded the creation of a lex sportiva through the arbitral awards of the CAS. (3) The neologism 'lex sportiva' is not a pure Latinism, since the adjective 'sportiva' is not Latin, the term 'lex sportiva' obviously was created by analogy with the medieval lex mercatoria (merchant law). (4) Apart from that, Prof. Klaus Vieweg of the University of Erlangen-Nuremberg (Germany) and Vice-President of the International Association of Sports Law (IASL), informed me as follows: "Indeed, the history of the term "Lex sportiva" is somewhat obscure. Looking at my sports law files I found that the first person to use the term 'Lex sportiva' probably was the first president of the IASL, Michael Stathopoulos (please, see page 23 of the Proceedings of the 5th IASL Congress on "Sport & European Community Law" in Nafplio (Greece) which took place on 10-12 July 1997. Matthieu Reeb was one of the speakers at the congress and he possibly picked up the term "Lex Sportiva" from the speech of our colleague Stathopoulos."

In 2005, Beloff argued that the proponents of the proposition that there is such a coherent entity as sports law, clearly adopt the Latin phraseology to endow the subject with a spurious antiquity - sometimes using the alternative term lex ludica - "although that carries with it in mistranslation unhappy overtones of ludicrousness". (5) [In mistranslation? As we shall see below "ludicus" in fact is a neologism which was meant by its author to be cognate with "ludus" so it would not mean "playful", but 'sporting" or "sportive".]

In 2006, the T.M.C. Asser Institute and T.M.C. Asser Press published the book The Court of Arbitration for Sport 1984-2004 (6), including ken Foster's contribution on 'Lex Sportiva and Lex Ludica: the Court of Arbitration for Sport's Jurisprudence'. (7) Foster says that a further set of principles that can be distinguished, and separated from the concept of 'lex sportiva', are what can be termed the sporting law (italics added; RS), or rules of the game: "I propose to call these principles 'lex ludica'." (8)

Now I wondered what the origin of this term is. By whom was the term lex ludica invented and when (cf., lex sportiva and Reeb)? In my further research, it turned out that Foster did not have a precedent or source when inventing it. He was trying to follow up a suggestion that he had made in a previous article where he had distinguished various types of international sports regulation from the 'internal' law of sport. There he distinguished the technical rules of sport from the 'ethical spirit of sport'. In the chapter for the CAS Book" he used the term 'lex ludica' and then employed it to cover both the formal rules of a sport and the equitable spirit of the sport. (9)

"Ludus" in classical Latin meant inter alia 'game", but if one looks in the Latin dictionaries, one will not find the adjective "ludicus", which must be derived from the substantive "ludus" (in Medieval Latin it neither existed.) I asked Prof. Joan Booth, Latin Language and Literature, Department of Classics, Institute of Cultural Disciplines, Faculty of Humanities, Leiden University, The Netherlands, for confirmation whether the words "ludicus" already existed in classical Latin as an adjective derived from "ludus". She replied as follows: "The short answer is 'no'. The classical Latin adjectival form cognate with ludus is ludicer, - cra, -crum (the masculine form ludicer is in fact not attested), but it does not mean what you would like it to mean. …