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Three Strategies for Defending ‘Sporting Autonomy’

Protecting Sporting Autonomy: the Contractual, Legislative, and Interpretative Routes

On occasion sports governing bodies find it strategically useful to seek the protection of the law. So, for example, the Union of European Football Associations (UEFA) has aligned itself closely with the Commission in mapping the contours of its Financial Fair Play regime for fear that it might be accused of putting together an anti-competitive scheme that unlawfully limits spending. This is examined in Chapter 10.9. And Giles Clarke, the cricket administrator met in Chapter 1, nervous about matches being shown unlawfully on ‘pirate websites’,[1] would doubtless be only too happy to see the coercive force of the state crack down on those damaging his commercial model by violating the property and contractual rights held by cricket’s governing bodies. But it is much more common to find that the principal ambition of sports governing bodies is to isolate their practices and activities from legal supervision or at least to mould legal rules to sporting taste. So the question is normally how, and how far, may an autonomy for sporting practices be extracted.

There are three main strategies for sports federations wishing to protect their regulatory autonomy (ie the lex sportiva) from ‘ordinary law’ (ie the law of states or of international organizations established by states such as those of the EU). These three strategies are, in short, contractual, legislative, and interpretative in nature.

First, sporting bodies may require participants to contract in to the lex sportiva, and to agree not to solve sporting disputes before ‘ordinary’ courts. This is the contractual solution to achieving sporting autonomy. It is increasingly common to find this model adopted by the constitutions of major sports governing bodies, such as Federation Internationale de Football Association (FIFA) and the International Olympic Committee (IOC), and it has lent increasing prominence to the role of the Court ofArbitration for Sport (CAS), which is the dominant adjudicative body within the system formed by the lex sportiva. But valuable and in practice significant though this ‘contracting out’ is for those espousing the virtues of sporting autonomy, it does not achieve a watertight division between ‘ordinary law’ and the lex sportiva.

Second, sports federations may seek to induce states or international organizations to adopt or implement the lex sportiva (in whole or in part). This may be summarized as the legislative solution—although in so far as the regulator is an international organization, it is a Treaty-based solution. The lure of the rich prize of hosting a major event such as the Olympic Games or the Football World Cup has permitted sports bodies to extract remarkable concessions granting them autonomy from the normal laws of the host country and/or special protection of their commercial interests, and on other occasions narrower and more sector-specific exemptions have been secured, in particular in the shaping of tax regimes and in state subsidies. The EU, however, has been consistently resistant to pressure to grant sport an explicit exclusion from the application of EU law. And no state and no international organization goes so far as to confer on sport a general amnesty from legal regulation.

Third, sports federations commonly seek to persuade courts (in states and in international organizations) that the special character of sport should be taken into account in the interpretation and application of ‘ordinary’ law. This is the interpretative—or adjudicative—solution. It does not claim formal autonomy from the law of states or of international organizations, but rather it seeks to claim a functional autonomy within that law, by persuading judges that the application of relevant legal rules falls for modification where the peculiarities of sport are at stake. Its value to sporting bodies is plainly dependent on the level of success they enjoy in persuading judges that their special status is merited and should accordingly be translated into some form of adjusted or softened interpretation and application of the generally applicable legal rules within the particular jurisdiction at stake.

These three strategies are at heart all founded on claims that ‘sport is special’, but they are constructed differently, and they are here arranged in descending order of preference from the perspective of sporting federations. The contractual solution typically has most appeal, the legislative is ‘next best’, and the interpretative solution is likely to be the least favoured, because it involves sport making its case on ‘enemy’ territory, that is, according to locally applicable law. Where, under the third strategy, sports federations strive to appeal for interpretative leniency, one will commonly observe a tension whereby sporting bodies push for a more generous scope of autonomy than may be readily on offer. But it is on the third strategy that sporting bodies are frequently compelled to rely, once the contractual solution reaches its limits and where the legislative solution is unattainable, and it is here—in the practice of the institutions that interpret and apply the ordinary law of states and of international organizations—that much of the vivid excitement of ‘sports law’ as an intellectual concept and a practical challenge emerges as litigation erupts.

This chapter explains the possibilities but also the limits of, first, the contractual solution and, second, the legislative solution as methods to preserve sporting autonomy. It then reflects briefly on the interpretative solution, but in essence the entirety of the rest of the book addresses the interpretative solution at length in the particular context of the application of EU law to sport.

  • [1] accessed29 November 2016.
 
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