The normative case for and against the lex sportiva as expressed through contract/CAS

The lex sportiva has acquired a high level of social and commercial significance as a system of global governance. Its rise is of great practical importance but it also commands considerable intellectual interest. It is not ‘law’ as conventionally understood, but it is private ordering of sorts and, as explained, it is able to claim a degree of autonomy from conventional state regulation. Examination of the lex sportiva deserves connection to broader literature on legal pluralism, for it reveals much about how interaction between different orders, each claiming different sources of authority and legitimacy, is managed.55 So, it has been argued, sports law should be of interest not only to sports lawyers.56 It tells us interesting things about how legal phenomena are associated with actors other than public authorities. It is the lex sportivas global and non-governmental character that serve as the intellectual keys to appraising its distinctive place in the system of norms that regulate sportTh The lex sportiva is frequently compared to the lex mercatoria, the body of rules deriving from custom and practice among merchants and open to application in preference to diverse local laws.58 This is to some extent helpful: it helps to push one’s imagination away from exclusive focus on systems of rule-making that are the preserve of public authorities. Indeed the CAS itself has chosen to make precisely this analogy. In AEKAthens and Slavia Prague it noted that, as a result of the transnational nature of sporting competitions, international federations have to reckon not only with their own statutes and the laws of their host country where the federation is incorporated but also with a set of unwritten legal principles with which they must comply built up especially through the arbitral settlement of disputes—‘a sort of lex mercatoria for sportsA9 [1] [2] [3] [4] [5] [6] [7]

But the lex mercatoria has an essentially private law flavour. The lex sportiva more closely resembles a transnational regime of governance which, although private in form, is administrative, even quasi-legislative, in its substance. It includes significant powers to impose sanctions, most strikingly but not exclusively in connection with doping control. The emergent principles of the lex sportiva cover matters such as fair procedure, as discussed earlier.[8] [9] [10] [11] Its flavour is much closer to that of public law. It has been astutely noted that this lends support to ‘the theory that the more complex private regimes become, the more they will come to resemble public law regimes’^1 There are intellectual connections to the debate about the development of a global administrative law, which entails ‘the increasing use of administrative law-type mechanisms—in particular those related to transparency, participation, accountability, and review—within the regulatory institutions of global governance’^2 Because sport aspires to a truly global reach in its governance regimes, it supplies an especially promising place to explore these trends.63 Moreover, there is a good case that all this is entirely desirable: the lex sportiva involves an assertion of a much higher level of power to pursue the interests of the powerful, the sports governing bodies, than does the lex mercatoria and therefore complacent analogies with the lex mercatoria should be avoided for fear that they miss this reason to question the strength of the lexsportivas appeal to deserve autonomy.

There is appeal in the shaping of a system that is sensitive to the needs and expectations of the parties intimately involved and which is apt to shape a globally recognized and predictable set of applicable standards. The bright side of the lex sportiva is efficiency and expertise: the dark side is absence of accountability of rule-makers, dearth of transparency, and the risk that lex sportiva is simply an intellectually deft camouflage for entrenching private power and privilege from legal scrutiny. Even if it is accepted that the lex sportivas global and non-governmental character mark it out not only as worthy of intellectual inquiry but also serve as reasons supporting claims to its autonomy from subjection to ‘ordinary’ law, a question that should be asked is whether the CAS awards deserve the respect that attaches to them under the rules and practices set out in sections 2.2.3 and 2.2.4.

Pechstein, considered previously, is a vivid example of exactly this anxiety: the BGH’s conclusion was that CAS awards had earned that right. The conventional judicial imposition of a narrow interpretation of the public policy exception under the New York Convention is a more generally applicable instance of the anxiety to protect the finality of arbitration. But the tension is real, the debate is necessary. Such shelter afforded to the CAS’s rulings, and the shift of a large body of sports-related dispute settlement away from ordinary courts and towards a process of arbitration which has in effect become the internal world of sport, highlights the pressing need for fair procedure and competent decision-making within the CAS process.

The claim to sporting autonomy achieved through contractual provision deserves the normatively sceptical perspective that one would conventionally aim at any process whereby agreement is struck between a strong party and a party with little or no choice but to accept what is on offer. Contractual freedom in form may in fact in substance amount to deprivation of the freedom of the weaker party. Put another way, the assiduously respectful attitude to the process of arbitration may assume what is not present—equal standing, bargaining power, and free choice to enter into the arrangements in the first place. And if, as suggested earlier, the lex sportiva has a public law flavour, the question is whether it is sufficiently attentive to the need to protect the individual athlete or club from the exercise of power by strong sports federations.

Moreover, there should be no hiding from the point that appeals by sporting bodies to respect their autonomy may be driven not only by a respectable anxiety to maintain the global integrity of the rules of the game, but also by a far more strategic interest to protect their commercially advantageous position from orthodox legal regulation. That a sport needs a single global regulatory body makes perfect sense when one considers the need for a single governing set of rules, but the more that single body exercises not only regulatory but also commercial power, the more troubling its plea for autonomy becomes. Sports bodies possess monopoly power and, in the economic context, that may be pernicious. This book teems with examples drawn from the context of EU law—mandatory release of players to play in international competitions, timetabling those competitions, and so on—but the issue is not at all limited to the EU. It is an endemic question in determining the proper scope and worth of claims to sporting autonomy. Who better to decide which sports shall be admitted to the Olympic Games than the IOC? And yet, given the immense commercial as well as sporting advantages associated with admission, and the relatively cold uncommercial and invisible fate of a sport which finds itself excluded, is it really convincing to treat such a choice as properly lying beyond the reach of legal regulation as an expression of pure sporting autonomy?

These are questions best answered only after a detailed exploration of the way that sports law has developed. The discussion will be resumed in Chapter 12, the concluding chapter. It will be seen in particular that EU law’s treatment of the lex sportiva is best understood as involving a grant of conditional autonomy—the practices of sporting bodies will not be disturbed by EU law on condition that they comply with key expectations of EU law, associated with both matters of substance, most obviously the demands of the internal market, and matters of procedure and good governance. It is in this inquiry that the virtues and vices of sporting autonomy are exposed and assessed.

  • [1] For suggestions see McArdle (n 46) 30—32; N De Marco, ‘Compelled Consent—Pechstein andthe Dichotomy and Future of Sports Arbitration’ (2016) accessed 29 November 2016.
  • [2] 54 Media Release (n 51). This concern is stressed also by Mavromati (n 51) (SSRN).
  • [3] A Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19 ELJ 822; and morefully Duval (n 19). See also A Valero, ‘In Search of a Working Notion of Lex Sportiva’ (2014) 14 IntlSports LJ 3.
  • [4] 56 M Mitten and H Opie, ‘Sports Law: Implications for the Development of International,Comparative and National Law and Global Dispute Resolution’ (2010) 85 Tulane L Rev 269.
  • [5] 57 L Casini, ‘The Making of a Lex Sportiva by the Court ofArbitration for Sport’ (2011) 12 German LJ 1317.
  • [6] See eg B Kolev, ‘Lex Sportiva and Lex Mercatoria’ (2008) 8(1—2) Intl Sports LJ 57.
  • [7] CAS 98/200, para 156.
  • [8] See n 17.
  • [9] Casini (n 57) 1340. This projects the inquiry far beyond sports law: Casini cites A Riles, ‘TheAnti-Network: Private Global Governance, Legal Knowledge, and the Legitimacy of the State’ (2008)56 AJCL 605; and E Meidinger, ‘Competitive Supragovernmental Regulation: How Could It Be Democratic?’ (2008) 8 Chi J Intl L 513.
  • [10] According to the website of the Global Administrative Law project accessed 29 November 2016.
  • [11] See eg L Casini, ‘The Emergence of Global Administrative Systems: The Case of Sport’ (2015) 1Glocalism: Journal of Culture, Politics and Innovation 1; K Foster, ‘Global Administrative Law: TheNext Step for Global Sports Law?’ (2012), available at SSRN accessed 29 November 2016.
 
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