Defining the Scope and Structure of International Sports Law: Four Conceptual Issues
Nafziger, James A. R., The International Sports Law Journal
I. The Problem
There is general agreement that the term "international sports law" refers to a process involving a distinctive body of rules, principles, procedures, and practice to govern important consequences of sports activity that transcends national boundaries. Beyond this broad definition, however, the scope and structure of international sports law is uncertain, thereby limiting its authority and legitimacy. What this means at the international level of authority is that we do not always know what is law and what is not, or at least we may find it difficult to distinguish law, with all of its rigor, from non-legal norms, best practices, ethics, and simple rules of sports etiquette, with all of their flexibility. This kind of problem besets most if not all young regimes, not just international sports law, but the sports law community would be remiss if it failed to address the underlying issues.
It might seem that we could overcome this problem by defining and labeling the pertinent law and legal institutions more precisely. To do so, our collective wisdom would be essential. After all, our ability to accurately describe our observations, whether of concrete objects or social phenomena such as legal norms, often depends on more than individual impressions. One is reminded of the story about a group of blind persons who are finding it difficult to identify an elephant merely by touching it, each of them describing a different part of the animal.
A lack of agreement on definitions and labeling does not seem to be the real problem, however. To be sure, we need to distinguish what is so-called hard law, such as prohibitions on match-fixing, and what is soft law, such as the ethics of good sportsmanship and the principle of international cooperation. But simply defining the terms "hard law" and "soft law" more precisely would not seem to be very helpful. Similarly, we cannot resolve the tensions between international and national authority over sports merely by refining the terminology and rules that express their complicated relationship. After all, international sports law is an authoritative process, not a taxonomy of rules.
Trying to reach a more functional consensus on the scope and structure of international sports law therefore raises deep and rather difficult issues - not just nominal or verbal ones, but conceptual ones. (1) Four of these conceptual issues are particularly troublesome: professional orientations among sports lawyers toward either international or domestic law, but not always both; the public-private law distinction; the jurisprudential scope of a lex sportiva; and the applicability of a core principle of fairness.
There is a fifth set of important conceptual issues that this commentary will not discuss in detail, namely, those related to the European Union's complex relationships with national authorities, international sports bodies, and, ultimately, athletes and other individual stakeholders in sports. Although the EU is certainly a source of important developments in international sports law - indeed, some of the most important developments - it nevertheless remains only a regional rather than global mechanism. As such, EU law has its own internal conceptual issues that, we must remember, are not necessarily experienced elsewhere. Perhaps the most obvious of these issues is how, precisely, to define the specificity of sport - the so-called sporting exception - which within the EU is framed in terms of the distinctive exigencies of economic integration. We might even speak of EU-type specificity. Elsewhere, however, sports law typically is not as driven by economic requirements as on the continent of Walrave, Bosman, and Meca-Medina. (2) This means that at the global level the scope of the concept of specificity may be quite different from the sense of the term within the EU. (3) Moreover, the meaning of EU-type specificity is still evolving. Thus, although the term clearly raises conceptual issues of great interest, they are ones that as yet cannot be resolved at the global level, given the continuing evolution of the concept within the EU and, ultimately, its mandatory economic requirements. …