Towards a 'Lex Sportiva'

By Blackshaw, Ian | The International Sports Law Journal, July-October 2011 | Go to article overview

Towards a 'Lex Sportiva'


Blackshaw, Ian, The International Sports Law Journal


Introductory

Is there such a thing as 'Sports Law'? Opinion on this subject is divided amongst academics and practitioners alike. (1)

According to the late Edward Grayson, the doyen of authors on sport and the law, jurisprudentially speaking, there is no such thing as 'sports law'. He argues that:

  "As a soundbite headline, shorthand description, it has no
  juridical foundation; for common law and equity creates 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 other social
  or jurisprudential category..." (2)

Likewise, Charles Woodhouse, CVO, the former legal adviser to the Commonwealth Games Foundation, a pioneer legal practitioner in the field of sport and a founder member of the British Association for Sport and the Law and the UK Sports Dispute Resolution Panel, is adamant that there is no such thing as 'sports law'. In a reflective valedictory article, he expresses his opinion as follows:

  "I have often said there is no such thing as sports law. Instead
  it is the application to sport situations of disciplines such as
  contract law, administrative law (disciplinary procedures),
  competition law, intellectual property law, defamation and
  employment law."

And adds in a slightly contradictory manner but then correcting himself:

  "I hope the next generation of sports lawyers will enjoy it as much
  as I have over the past 25 years. But do remember there is no such
  thing as sports law." (3)

Again, according to Hayden Opie, of the University of Melbourne, Australia, 'sports law' is one of those fields of law which is applied law as opposed to pure theoretical law:

  "Rather than being a discipline with a common legal theme such as
  criminal law, equity or contract law, sports law is concerned with
  how law in general interacts with the activity known as sport.
  Hence, the label applied is law. Yet there is an increasing body
  of law which is specific to sport. This produces debate among
  scholars over whether one should use the term sports law, which
  indicates a legal discipline in its own right or 'sport and law'
  which reflects the multifarious and applied nature of the field." (4)

On the other hand, Beloff, Kerr and Demetriou, all practitioners, recognise the emergence and importance of 'sports law':

  "..... the law is now beginning to treat sporting activity, sporting
  bodies and the resolution of disputes in sport, differently from
  other activities or bodies. Discrete doctrines are gradually taking
  shape in the sporting field....... English courts are beginning to
  treat decisions of sporting bodies as subject to particular
  principles." (5)

In other words, sport is 'special' and, as such, is deserving of 'special treatment' from a legal point of view. This is certainly true at the EU level reflecting the views of the European Commission and the European Court of Justice, where the term the 'specificity of sport' (also referred to, particularly by Sports Governing Bodies, as the 'sporting exception') has been coined and is widely used in various Commission rulings and Court decisions in sports cases. (6) This term refers to the special characteristics and dynamics of sport recognised in the EU Council of Ministers Nice Declaration on Sport of December 2000. (7) And further recognised in the European Commission 'White Paper' on Sport of July 2007. (8)

Likewise, Lewis and Taylor, both academics and practitioners, have the following to say on the subject of 'sports law':

  "...... the editors share the belief of many writers in the field
  that in at least some areas, for example where international
  institutions such as the Court of Arbitration for Sport review the
  decisions of sports governing bodies, a separate and distinct body
  of law inspired by general principles of law common to all states
  is in the process of development. … 

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Towards a 'Lex Sportiva'
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