Nonstate Transnational Regulatory Systems
International sports law as a largely independent regulatory system
I shall now change the focus and turn to the wider transnational arena, in which, according to many authors, a new kind of law is emerging in the form of transnational law (e.g., Callies 2004; Hanschmann 2006). As a form of private legislative process beyond the nation-state, this law fills the gaps in regulation that arise because state law is either lagging behind societal developments, a phenomenon known as legal lag, or is unable to keep up with transnational regulatory requirements, a phenomenon known as regulatory gap (Ware 2006). The most popular examples of such self-formulated rules, the rise of which is mainly due to the overcoming of national bottlenecks in rule making (Rothel 2007), are the lex mercatoria (i.e., the Law Merchant, an agreement between merchants on certain trade practices and transaction rules), the lex electronica, which refers to the regulation of the Internet, and the lex sportiva, the self-defined rules of international sports. As this chapter is not intended to be legal-theoretical in nature (see Schuppert 2009), I would like to leave the question as to whether it is possible to refer here to a transnational law as a type of independent law unanswered at this point (for a skeptical view, see Ipsen 2008). Instead I will focus my attention on the question of which of these three sets of rules actually functions well as a result of formulating clear rules that are largely observed by their target groups and are also robustly implemented in the case of noncompliance.
When stated in these terms, the answer is obvious: it is lex sportiva—the transnational sports law—that stands on the winners’ platform. According to Nils Ipsen (2008, 121-22), the main reason is the quality of sports law as a law of associations that focuses on the rules and regulations of the sporting associations. Principally, each association is autonomous and can enact its own set of regulations. However, together the sporting associations form a hierarchically structured pyramid whose functioning corresponds in full to the Weberian ideal of a hierarchical organization.
In order to outline the hierarchically structured pyramid, Ipsen relates to the level of integration of association regulations by examining the institutional organization of international (Olympic) sports. The International Olympic Committee (IOC) stands at the apex of the pyramid and holds the exclusive rights to the Olympic Games (Rule 7, Olympic Charter) — a right that was never seriously challenged. As a result, the IOC holds a monopoly at the highest level of competitive sports.
Furthermore, Ipsen points out that within the Olympic movement the one-association principle applies. This means that there can only be one top international association for each kind of sport, and only one National Olympic Committee for each nation (Rule 29, Olympic Charter). This principle also applies at lower levels; the top international association also recognizes only one national association. This gives rise to a hierarchical pyramid within competitive sport with the IOC at its apex, the national sports associations below it, followed by any existing regional sports associations, the local sports associations, and at the bottom the individual athletes.
Finally, the pyramid structure allows us to apply the same rules for one kind of sport—which are defined by the top associations—at an international level to achieve the essential comparability of performance. According to Rule 23 of the Olympic Charter, any sporting association that contravenes or fails to recognize the Olympic principles or the World Anti-Doping Agen?cy’s World Anti-Doping Code runs the risk of exclusion from the Olympic Games. Thus, the relevant competition rules have universal applicability.
A particular feature of the area of the lex sportiva, which makes a crucial contribution to its qualification as an independent regulatory system, is the existence of a superior court of sport in the form of the Court of Arbitration for Sport, which is based in Lausanne. This is an actual court of arbitration for sports-related disputes and has now been recognized by all Olympic and non-Olympic associations. Even so, the court’s decisions only have jurisdiction within the limits set by the state courts, which “in exchange” refrain from intervening in the core area. This relationship between the state courts and the sporting associations is referred to in some cases in the literature as a “constitutional equilibrium” (Beloff, Kerr, and Demetriou 1999), in others as a relationship of “concordance” (Hess 2006) and, in any case, as a relationship “which constitutes the basis and precondition for the development of a (partly) independent law of sport” (Ipsen 2008, 147).