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Sport is Special

Competitors in a sporting event need opponents. In a normal industry a supplier’s sweetest dream involves the acquisition of a monopoly. That would grant freedom to behave as it chooses without fearing that its customers will switch their allegiance to a competitor. There is no competitor. By contrast, a single football or rugby or cricket club would be in a sorry state. No one would be interested in watching it play on its own. It needs competition. Moreover, the opponents that it needs must be more or less credible opponents. Spectators are likely to lose interest if the outcome of the contest is a foregone conclusion.

As part of this notion that the competition must be credible, people watching a sporting event do not expect to know the result in advance. At an opera most of the members of the audience know which character(s) will die in the end. So too in the theatre or in literature: no one watching a performance of Romeo and Juliet or reading Tess of the D’Urbervilles is expecting a happy ending. By stark contrast in sport you don’t know who will win. Uncertainty of outcome is one of the principal and essential attractions of attending a game of cricket or an athletics meeting. And a match the result of which is fixed in advance is not a sporting event at all.

The key insight is that there is a mutual interdependence between sports clubs which is not found in a normal industry. It is in the nature of a sports league that some matters are pursued in common, and the implication is that the law should be more forgiving of such collaboration than it would be where pursued between rivals in a normal industry. There needs to be agreement on the rules of the game, the timing of fixtures, and the like. And the special character of sporting activity is not found solely on the supply-side. On the demand-side too, sport is special. The customer of a poorly performing supermarket will quickly choose to shop at a different supermarket. The typical sports fan enjoys no such luxury. Few fans feel able to change their team, no matter how badly it performs, no matter how poorly the fan is treated. In fact, although switching to a more successful club is in principle possible and may even seem rational, only someone who is not a fan could do it. Sport is special—the consumer of sport, the fan, is special too. You can be a true fan only if you are irrational. Supporting a club is not consumption, it is passion and it is commitment: Rudyard Kipling’s famous nineteenth-century poem If advises that if you can meet with triumph and disaster and treat those two impostors just the same, then you’ll be a man. Perhaps so. But you won’t be a sports fan.

Sport is special in its patterns of governance too. Most sports are subject to regulation by a single governing body, and frequently that body claims a global reach.

It is in the typical nature of sport that the rules of the game do not differ according to the place in which the contest takes place. Offside in Bolivia is offside in Spain too. This ensures that the sport transcends national borders—it is truly a ‘global game’. Normal industries may have trade associations through which matters of common concern are addressed, but they do not act as a source of agreed common production and marketing conditions that are applicable to all undertakings active in the sector. Or, at least, if they do, they can expect to be the subject of aggressive intervention by authorities responsible for the application of laws restraining anticompetitive conduct. Sport, typically regulated according to a single global regime and under the auspices of a single governing body, is special.

This provides one reason why sport is unusually resistant to control by litigation. Courts are jurisdictionally limited: sports bodies are not. In addition litigation is slow: sporting contest is fast-paced. Winning a lawsuit may take as long as a career would typically last in top-level professional sport. Bringing that lawsuit may mean that the career ends prematurely or that it never even begins. Sports bodies are not immune from litigation pursued before ordinary courts of law in either principle or practice, but they are able to resist it conspicuously more effectively than actors in most other areas of economic activity.

The claim to assert monopoly power over rule-making is also frequently combined with a claim to use that power to achieve redistribution of income and to promote solidarity within the sport. Federation Internationale de Football Association (FIFA) is fond of asserting that it is concerned with the good of the game, which means that it wishes to sustain the sport not simply its own commercially lucrative pinnacle. Some of this rhetoric is a rather poor disguise for ruthlessly aggressive profit-maximizing practices. And it is, in any event, more audible in Europe than in North America. But some of it is true. Powerful trade associations bringing together, for example, steelmakers or pharmaceutical manufacturers do not tend to support age-group events or women’s competitions. FIFA does.

Moreover sport has a cultural resonance which exceeds its purely economic impact. Publicity-hungry captains of industry may look jealously at the media coverage granted to individuals in the sports sector with access to far smaller budgets. Indeed crowding into this limelight is often a reason for choosing to become financially involved in sport. Buying a club may often not be a good way to make money, but it is often a good way to raise one’s profile. Sport has a social and cultural impact which typically sets it apart from and above industries which generate similar or even much higher levels of income. And that impact is worldwide: the great European football clubs are known and followed across the globe and they structure their commercial strategies accordingly. In England, in particular, foreign ownership of the leading clubs has become the norm and, as is clear from the pattern of acquisitions by nationals of states with patchy reputations for respecting human rights, the aim is commonly not primarily profit but rather a veneer of respectability.

Sport is frequently garlanded for its ability to bring people together in a spirit of friendship, harmony, and tolerance. ‘Fair play!’ is an endearing appeal, which portrays sport as a model of decency and honesty. So too sport as recreation has evident benefits as a means of improving public health. No one makes virtuous claims of this type about car-making or ship-building or selling insurance.

But sport is not that special.

Sporting activity is not completely without analogy to normal industry and it is certainly not as special as those engaged in sports governance commonly claim. Sport is not only motivated by profit-making but it is without doubt a sector in which large amounts of money are made. In particular, the attachment of attractive high-profile sport to the deregulated and technologically advanced broadcasting sector has over the last twenty-five years brought wealth into professional sport to such a degree that its shape is scarcely comparable to that of the past. The fan who lives locally and pays at the turnstile was once the principal source of revenue for football clubs, but that primacy has long since shifted to the consumer of broadcasting services, and that consumer could be resident anywhere across the world. In similar vein whereas in the past the successful footballer might pay his bills by becoming a manager once he retires from playing, today the retired top-level footballer has no reason to worry about the financial need to work ever again. He is already a celebrity, and a very rich one. In 2012 Giles Clarke, then chairman of the England and Wales Cricket Board, revealed that the governing body had acted to force the closing down of 700 pirate websites providing illegal streams of matches, and he warned that they are ‘the biggest danger’ facing the game.[1] But the eternal beauty of cricket on the village green is not in the slightest imperilled by such trends. What he really meant was that such websites are the biggest danger facing the dependence of the professional game on protected revenue streams from mainstream broadcasters.

Much of the admittedly distinctive character of sport just sketched deserves careful assessment which takes due account of context. The necessary mutual interdependence between sports clubs in a professional League clearly serves as a reason to treat some forms of collaboration among sports clubs as legitimate where it would not be so benignly regarded in a normal industry, but it does not mean that clubs are never properly treated as competitors. They may compete in the market for players; they may compete for support from sponsors and from broadcasters. Different models are to be found in different countries. The intense attention paid in North American sports leagues to promoting competitive balance, through devices such as the ‘draft pick’ and salary caps, are largely absent from European leagues, where far less attempt is made to control the strong and support the weak. In part this is because in Europe consumers—fans, one might prefer to call them—seem more tolerant of suppliers of services—clubs, one might prefer to call them—who can never seriously compete to be the champion. In part it is also because in Europe there are many more prizes on offer to satisfy fans—avoiding relegation, qualifying to play in European competitions—than are available in the ‘closed’ leagues that dominate North American sport, where promotion and relegation are foreign concepts and there is no interconnection between national and international competitions on the European model. So pursuit of competitive balance has much less resonance in European than in North American professional sport. All chosen models assume that some, but not all, forms of collaboration between clubs reflect interdependence among competitors as a special feature of sport and that they should therefore be not only tolerated but encouraged, but not all models adopt precisely the same priorities.

The global pattern of governance which is characteristic of sport makes good sense as a means to ensure that the rules of the game are not fragmented in their geographical application, but carries with it the risk of the rise of unaccountable and uncontrolled power. Sports bodies may have a case when they seek to insulate the integrity of the rules of the global game from intervention by local and diverse particularities: the matter is different when laws on transparency, taxation, corporate governance, and anti-corruption are dismissed as antithetical to the stability of global governance in sport. Unchecked and uncheckable power is always a source of anxiety. Sports bodies, which are not tethered to any conventional pattern of democratic oversight or accountability, are among the more obvious sources of such disquiet in the modern world. Typically private in form, they are nonetheless of immense interest to the public and they wield huge power. The risk of selfinterested action untethered to any conventional chains of external accountability is a powerful reason to plead for a system of rules governing sport that is not allowed unconfined immunity from the parochial but democratically approved structures of national and EU law.

The cultural resonance of sport is frequently celebrated, but it too may be double-edged. It is plainly a splendid thing when sport provides a platform for bringing people together in a spirit of friendship, harmony, and tolerance, but examples abound of sport providing an opportunity for the display of base emotions and regeneration of historical grievances. So, for example, in October 2014 a football match between Serbia and Albania was abandoned after fans invaded the pitch and attacked visiting players.2 This is by no means the only instance in recent years of a match being halted and left unfinished because of violence. In 2001 a match between France and Algeria was abandoned after fans invaded the pitch.[2] [3] Honduras and El Salvador fought the so-called ‘football war’ in 1969: there was of course much more to its causes than football, but a fiercely contested World Cup qualifying match between the two countries did nothing to promote peace—quite the reverse. Sport of a representative nature generates true passion. Sometimes this goes too far. Here there is merit in distinguishing between amateur and recreational sport, where the profit-making motive is absent and participation is of greater significance than winning or losing, and professional sport, where the partisan element is greatly heightened. Similarly, sport as a form of recreation plays a useful part of a broader strategy to promote awareness of the benefits of a healthy lifestyle, but this has negligible connection with the pay-per-view viewer who turns on his or her television to watch a Champions League match, beer(s) and burger(s) to hand, preferably (as far as the Union of European Football Associations (UEFA) is concerned) those produced by the competition’s official sponsor(s). Money-making looms large in professional sport.

The challenge and delight of ‘sports law’ is fuelled by, first, exploration of the strength of the claim that sport is ‘special’ and then, second, appreciation of how such a claim, if made good, should affect the making, interpretation, and application of legal rules. This is more than simply collecting together the several areas of the law which might conceivably touch the practice of sport(s). It is a much richer enterprise—one that is built on an expectation that sport is to some extent special and that the law will sometimes, but not always, be shaped accordingly. In this sense sports lawyers must reckon with Frank Easterbrook’s famous rebuke. Delivered under the title ‘Cyberspace and the Law of the Horse’,[4] [5] his main target for criticism was the risk of shaping a ‘cyberlaw’ inadequately tethered to existing legal rules and principles, most of all associated with intellectual property. His analogy was with the imagined law of the horse: simply to gather cases concerning horses would stretch over sales law, personal injury, licensing, and so on, and would, he argued, yield shallow results and miss unifying principles. So, he counselled, ‘the best way to learn the law applicable to specialized endeavors is to study general rules’.5 Get to horses via tort and contract and property law, and so on. So should one get to sports in the same way? This sceptical inquiry is worth making—and it is not a concern that is exclusive to sport[6]—but there are satisfying answers to the accusation that ‘sports law’ as a category is banal and empty. Most of all the concept of ‘sports law’ is driven by a claim that sporting activity, because it is special, should be granted partial or total autonomy from the ‘ordinary law’ of states or of international organizations created by states. Sport, after all, is typically governed by global bodies which claim expertise in and sensitivity to their field and which insist on the vital importance of creating a single set of rules that should not be fragmented in their application or interpretation by geographical accident. If offside in Bolivia is not offside in Spain because Spanish law makes different demands or prefers a different interpretation, or even simply because Spanish judges claim authority to review decisions made on the pitch by the referee, then the very character of the sporting endeavour has been ruined. This claim to sporting autonomy is typically pitched in terms of protection of the lex sportiva. The lex sportiva is a term lacking a precise agreed definition, but it helpfully, if loosely, refers to the arrangements that define a sport’s operation. The lex sportiva is made up of the rules and practices established by governing bodies and applied globally to ensure common treatment of a particular sport wherever it happens to be played, and increasingly it is shaped by the practice of the lex sportivas adjudicative pinnacle, the CAS, the Court of Arbitration for Sport, which is examined in Chapter 2.[7] The lex sportiva is not the law of a state. It may come into conflict with the law of a state or with the law of an international institution such as the EU, and it is exactly at that point that the appeal to show respect to the autonomy claimed by lex sportiva is heard at its loudest. Typically governing bodies in sport will seek to impress a positive view of the virtues of this sporting autonomy on those charged with the responsibility to apply ‘ordinary law’. And although interference with the autonomy of the offside rule is a rather fanciful example, the matter becomes a good deal more sensitive when sports governing bodies claim that their sale of broadcasting rights or their imposition of control over the transfer of players should be immune from supervision pursuant to the ‘ordinary law’ of a state or a body such as the EU. Sports bodies may be suspected of pleading the autonomy of the lex sportiva not only as a means to protect its integrity but also in order to sustain commercial advantage. Moreover, as part of this thematically consistent strategy, sports governing bodies are remarkably skilful at portraying commercial activities in the most virtuous possible light. The flabby couch potato may be the true consumer of the Champions League and fast food and beer producers the main sponsors, but it is the value of a healthy lifestyle and tolerant generosity of spirit that will be pushed strategically into the foreground by sports governing bodies when they seek to proclaim their case for autonomy from legal supervision.

So investigation of ‘sports law’ promises an expedition that is more intellectually ambitious and more sharply focused than a mere desire to collect together the several types of laws—public law and private law; criminal law and competition law; national, European, and international—to which sporting activities happen to be subject. ‘Sports law’ has its focus on the intersection of two types of legal order: the lex sportiva, on the one hand, and, on the other, the law of states or of international organizations on whose territory sport is practised. Sports law therefore has two distinct, though connected, components: the claim to (some degree of) autonomy from the application of the ‘ordinary’ law of states and international organizations and the claim that ‘internal’ sports law, the lex sportiva, possesses sufficient coherence and procedural integrity to be treated as a legitimate system of ordering.

Sports law as a discipline explores the ability of sports bodies in practice to insulate their legal order from that of public regulators—the strategies they use to keep ‘ordinary law’ at bay. And its intellectual core explores how to make a normative assessment of the strength of the claims advanced in favour of autonomy. The detailed answers provided may plausibly vary in different jurisdictions and in different sports. And in its main part this book will focus on the law of the EU. But the core questions confronting any sports lawyer are the same: Just how special is sport really, and how, if at all, should that special character be granted legal recognition?

  • [1] < https://www.theguardian.com/sport/2012/jan/26/ pirate-websites-cricket-giles-clarke> accessed29 November 2016.
  • [2] ‘Serbia v Albania Abandoned after Players and Fans Brawl on Pitch’ The Guardian (London, 14October 2014) accessed 29 November 2016.
  • [3] ‘Fans Force Abandonment of Watershed France v Alegria [sic] Match’ The Guardian (London,8 October 2001) accessed29 November 2016.
  • [4] F Easterbrook, ‘Cyberspace and the Law of the Horse’ (1996) 7 University of Chicago LegalForum accessed 29 November 2016.
  • [5] ibid 207.
  • [6] eg on aviation law, see B Havel and G Sanchez, The Principles and Practice of InternationalAviation Law (CUP 2014) ch 1; on health care law, T Hervey and J McHale, European Union HealthLaw: Themes and Implications (CUP 2015) Pt I; on food law, N Fortin, Food Regulation: Law, Science,Policy and Practice (2nd edn, John Wiley 2017) Foreword; and on how to ‘see something when we thinkabout the regulation of cyberspace that other areas would not show us’, see L Lessig. ‘The Law of theHorse: What Cyberlaw Might Teach’ (1999) accessed 29 November 2016.
  • [7] For a useful overview of the literature, see R Siekmann, ‘What is Sports Law? Lex Sportiva and LexLudica: a Reassessment of Content and Terminology’ (2011) 11(3—4) Intl Sports LJ 3; I Blackshaw,‘Towards a Lex Sportiva’ (2011) 11(3—4) Intl Sports LJ 140; A Valero, ‘In search of a working notion oflex sportiva’ (2014) 14 Intl Sports LJ 3; A Duval, ‘Lex Sportiva: A Playground for Transnational Law’(2013) 19 ELJ 822. See also F Latty, La Lex Sportiva: Recherche sur le Droit Transnational (MartinusNijhoff 2007).
 
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