Don't Take Away My Break-Away: Balancing Regulatory and Commercial Interests in Sport

By Boyes, Simon | Nottingham Law Journal, Annual 2016 | Go to article overview

Don't Take Away My Break-Away: Balancing Regulatory and Commercial Interests in Sport


Boyes, Simon, Nottingham Law Journal


INTRODUCTION

The ability of sports governing bodies to control their respective sports is one that has come under growing pressure in recent years. As sport has become increasingly globalised and the commercial value of elite sport has swelled exponentially-- particularly in respect of media rights--new challenges to the regulatory capacity of sports governing bodies have become manifest.

The nature of the growth of modern sport--principally on a self-regulatory, private basis, separate from state intervention--means that sports governing bodies may have de facto regulatory monopoly over their particular sport, but that they have no formal de jure right to regulatory oversight and control. This leaves these bodies, and the sports they regulate, vulnerable to external threats to their regulatory autonomy, particularly from those who wish to exploit sport's commercial potential.

This article explains and assesses the various means by which the regulatory authority of sports governing bodies may fall subject to challenge, before moving to consider the legal approaches to such challenges and to the monopoly position held by sports bodies. The article further considers the protections available to sports regulators under a variety of intellectual property provisions before concluding with proposals for a new approach which balances demands for the regulation of sports in a manner consistent with the public interest, while adequately protecting sports governing bodies from having control of their sport--either partial or total-wrested from them.

SETTING THE SCENE: COMPETITION FOR CONTROL OF SPORTS AND EVENTS

For the most part, the organisations which regulate sports grew up organically, initially as a means of facilitating participation and competition and, latterly, as providers of more sophisticated regulatory authority and frameworks. (1) Generally speaking there has been little competition from would-be alternative regulators, with most challenges to regulatory authority coming through objections to the substance of regulation and practice by those subject to the regime. Most typically these challenges have come from athletes, (2) clubs (3) and other stakeholders--such as competition organisers (4)--with, usually, economic interests in the sport.

For the bulk of the modern era of sports regulation, sports governing bodies-- both domestically and globally--have been able to utilise their positions of dominance to achieve universal control over their sport. The threat of exclusion from participation has usually been sufficient to deter any threat of breakaway and to maintain a regulatory monopoly in a given sport. For much of this period there has been limited threat from would-be alternative regulatory bodies largely due to the lack of any real incentive, and the risks inherent in any failure. Until relatively recently, even with the early advent of television, the economic value of sport has been insufficient to provoke many attempts at a 'takeover'.

This is not to say that there are no examples of successful regulatory takeover or breakaways: the association football and rugby football codes are examples of early splits--predominantly based on differences as to how the sport should be played- -and the existence of rugby league is owed to a schism in a once unified sport with the creation of the 'Northern Union' in 1913. The league/union split, however, came about as a dispute over professionalism and the payment of players; as such it can be seen as an example of players asserting their economic rights, rather than an attempt to wrest control of the game from the established authorities. In any case the football/rugby and league/union splits can be reasonably categorised as formative parts of the process of individual sports emerging from folk practice and from numerous early disparate, though similar, codified versions. There are very few examples of mainstream sports or sports regulators which have emerged outside of this period of codification and regularisation. …

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