Distinguishing Between Global and International Sports Law

Introduction

Sport has come to be recognised as a very significant commercial activity that is conducted in a transnational sphere. This essay explores how international sports law is different from global sports law and whether the sports federations should be allowed to completely self-regulate or if there is also applicability of the general law.

Is there something called as ‘international sports law’ and how is it differentiated from ‘global sports law’

There is a distinction between global sports law and international sports law. International sports law is defined as “a process that comprises a more or less distinctive body of rules, principles, and procedures to govern the conduct and consequences of transnational sports activity.” Furthermore, international sports law also includes procedural rules and practices of private international law, such as the jurisdiction of the national courts over the decisions of the sports federation bodies. Thus, international sports law is the combination of public law and private international law which is applicable to the rules and practices related to transnational sports activities. On the other hand, global sports law (also called ‘lex sportiva’), is used to characterise self-regulation by international sports federations without the intervention of national and international laws. It is an autonomous field governed by privity of contract and consent. Unlike international sports law, which relates to sports regulation both through international and national laws, global sports law contains rules and regulation formed by sport federations and also legal principles developed by the Court of Arbitration for Sport (CAS). As such, global sports law is described as the normative order of international sports regulation that comprise of both the regulations formulated by the sports federation and the jurisprudence of CAS.

International sports law has an inter-governmental character and even a non-governmental character (e.g. International Olympic Committee or the IOC) as compared to the global sports law which does not involve the intervention of the governments and states or even international organisations like the United Nations. International sports law has developed over a period of time with the United Nations Educational, Scientific and Cultural Organisation (UNESCO), which adopted the International Charter of Physical Education and Sport in 1978. In 2007, UNESCO adopted the International Convention Against Doping in Sport. The United Nations International Office on Drugs and Crime (UNODC) is involved in the control of drug use by athletes. The United Nations General Assembly has also played a role in the making of the international sports law; an example is that of the United Nations General Assembly Declaration of the International Conference on Sanctions Against Apartheid in Sport. This Declaration mandated the denial of visa to representatives of sports bodies and athletes from countries where apartheid was being practiced.

In Europe as well, development of transnational sports law has happened under the aegis of the European Union and its institutions. Consequently, there is development of rules and practices and principles that are related to sports. For example, the European Convention on Spectator Violence and Misbehaviour at Sports Events in Particular at Football Matches, was adopted by the EU for the purpose of extradition of suspects or other mutual assistance between member states in respect of criminal matters arising out of spectator violence. Even the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Union, includes provisions on the regulation of sport.

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1. James AR Nafziger, ‘International Sports Law’ in James AR Nafziger and Stephen F. Ross (eds.), Handbook on international sports law (Edward Elgar Publishing 2011) 4.
2. Ibid.
3. Ken Foster, ‘Is there a global sports law?’ in Robert C.R. Siekmann and Janwillem Soek (eds.), Lex Sportiva: What is Sports Law? (TMC Asser Press 2012) 35.
4. Ken Foster, ‘Global Sports Law Revisited’ (2019) 17(1) Entertainment and Sports Law Journal.
5. James AR Nafziger, ‘International Sports Law’ in James AR Nafziger and Stephen F. Ross (eds.), Handbook on international sports law (Edward Elgar Publishing 2011) 4.
6. UN Doc A/38/310 (1983) adopted June 1983.
7. Ibid
8. ETS No.120, Strasbourg, 19/08/1985.

The European Court of Justice has also played a role in developing jurisprudence related to sports law. Some of these decisions reflect on how inspite of the autonomous nature of the rules made by sports federations, European law and jurisprudence may be applied to review the decisions of the sports federations. In Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, the European Court of Justice banned restrictions on foreign EU players within national leagues that were being used to restrict players from moving to other clubs at the end of the contract by making them pay a transfer fee; the court held that this was contrary to the principles of free movement protected by the EU law and therefore, players could make such moves without having to pay transfer fee.

The IOC is a good example of an international sports body to which international sports law is applicable, while the FIFA is a good example of a sports federation which is involved in the development of global sports law. The IOC is an non-governmental body and it was founded under the Olympic Charter. The body has a limited international legal personality and it contributes to the development of the international sports law. Structurally, the Olympic Movement comprises of the IOC, IFs, National Olympic Committees, and the Organising Committees of the Olympic Games as well as some other bodies that are recognised by the Olympic Movement like the World Anti Doping Agency (WADA). The Olympic Charter contributes to the normative order of international sports law by formulating principles, customs and authoritative decisions related to sports law, with some of its customs even satisfying the criteria for opinio juris. The status of IOC in public international law is therefore well established. In San Fransisco Arts and Athetics v USOC and IOC, the IOC was described by the court as a “highly visible and influential international body.” Clearly, international sports law is developed and reflected in the body of the IOC and the Olympic Charter as well as the customs, principles and practices developed by the Olympic Movement.

Similarly, there is something called as ‘global sports law’ which is distinct from international sports law and is reflected in the self-regulatory nature of rules and practices developed by the sporting federations that are operating at national, regional, and international levels. The rules developed by the sports federations and governing bodies are derived from the principles of the law of contract, including the principle of privity of contract. An example can be taken of the English football associations, which are governed by the Football Association and have the jurisdiction to make rules for England; but these associations are also subject to the rules and regulations of Union of European Football, and FIFA. Indeed, most sports have a pyramid like structural governance which operates at national, regional, and international levels. Be it football, cricket or other sports, at the lowest level of the pyramid can be found autonomous non-professional clubs, while regional federations and national federations form the middle with the latter having oversight over the regional federations. At the highest level would come the international federation like International Cricket Council and Fédération Internationale de Football Association or FIFA, which are at the highest level of making international sports federation rules. The rules, principles and practices for relevant sports activities are created by bodies like ICC and FIFA. For instance, FIFA contains all the legal rules and regulations related to football including the Rules Governing Procedure of Players’ Status Committee and Dispute Resolution Chamber, 2021, and FIFA Anti-Doping regulation 2021. Conforming to the characterization of global sports law as an autonomous and independent field, the rules made by FIFA and ICC are not interfered with even by the national laws on the principle that these bodies derive their powers to regulate sports from voluntary agreements. Similarly, in the Unites States, there are autonomous sports bodies like the Professional Golfers Association or PGA, and the United States Olympic Committee or the USOC, where the state and federal laws are not applicable and cannot be used to interfere with the powers of these bodies to make rules concerning the sport. This is not to say that these powers of the sports federations are unbounded and unrestricted and that under no circumstances will the national law or international sports law not be applied to assess the decisions and actions of these bodies because that would be inaccurate and undesirable as discussed in the next section of the essay. What this section of the essay has established is that there are autonomous bodies and federations that are developing what can be called as the global sports law, which is differentiated from international sports law. The overarching characterisation of the global sports law can be that it is autonomous and self -regulated in nature. In the next section, the essay critically discusses where the national legal structures and principles become applicable to sports notwithstanding the autonomous nature of the rules and practices developed by sports federations and bodies.

1. 500 OJ (C306) adopted on 17 December 2007.
2. Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93.
3. James AR Nafziger, ‘International Sports Law’ in James AR Nafziger and Stephen F. Ross (eds.), Handbook on international sports law (Edward Elgar Publishing 2011) 7.
4. Ibid 7.
5. San Fransisco Arts and Athetics v USOC and IOC 107 S. Ct. 2971 (1981), [2981].
6. Ian S. Blackshaw, International Sports Law: An Introductory Guide (TMC Asser Press 2017) 10.
7. Ibid.
8. Ibid.
9. James A.R. Nafziger, ‘European and North American models of sports organisations’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar 2011) 90-91.

Should sports federations continue to be self-regulated or be governed by national legal systems and international sports law governance

To argue that federations should be completely self-regulated and that there should be no interference with these federations’ decisions either from the national or international law, is to say that the area of sports law is completely exclusive and capable of dealing with every aspect on its own. This is inaccurate. While sporting federations do make the rules and regulations with respect to the concerned sport, they are not capable of making laws for every aspect of the sport or every aspect of the relationships that arise from sports. There are areas, like tortious liability, insurance, and human rights of players, where the national or international law will override the rules made by the given federation. Most countries have laws that relate to some aspect of sport or could be related to some aspect of the relationship between the federation and its members or athletes. For instance, in the United States, as it has a written constitution, the constitutional rights do apply even in the area of sports so that rights such as equal protection of law would apply to sportspersons also. Constitution is public law and is applicable to every entity including sporting federations. Then there are specific legislations like the Sport Broadcasting Act 1961, that are applicable to sports. Common law related to contract and tort as well as laws related to antitrust laws and labour laws are also applicable to sports. Contract law is very significant to sports because the power of the sports federation are derived from contractual relationship between the sports federation and the members. Consequently, sports federations cannot claim complete non-interference from national laws because they would also be required to adhere to principles of contract law. An example can be seen in Greg v Insole, in which it was held that the ICC rules that prohibited cricket players from participating in unauthorised matches and that disqualified players who played in such matches from playing in any official test match, were in contravention of the principles of restraint of trade. Similarly in the European Union, there are laws that are applied to sports federations’ decisions to assess these decisions. With regard to football, in Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, which was decided by the European Court of Justice, it was held that freedom of movement under Article 45 of the TFEU would be applied to prevent sports clubs from restricting their players from moving across member states and joining new clubs. This despite the rules being made by the UEFA, which is the Union of European Football Associations.

1. Eric W. MacIntosh, Gonzalo Bravo and Ming Li, International Sport Management (Human Kinetics 2019) 215.
2. Matthew J. Mitten, Sports Law in the United States (Wolters Kluwer 2017).
3. Ibid.
4. Ibid.
5. Ibid.
6. Greig v Insole [1978] 1WLR 302.

The justification for the national or international laws to be applied to sports federation is well explained by Lord Woolf in Modahl v British Athletic Federation, where it was observed that at times courts will have to intervene with the decisions of the sports federations because of the public significance of sports which raises public interest in sports due to which it is not possible to treat sports law as private law which has no link to public law. Some of the areas of public interest that are involved in sports concern human rights and rule of law. It can be argued that sports federations are neither the efficient authority to determine human rights related violations that are committed by themselves, or the rule of law principles that are involved in some of their decisions. There are many cases that are reflective of this point that sports federations may themselves breach the rights of the athletes through some of their rules and therefore jurisdiction of the national and international law cannot be completely excluded with reference to sports federations. Indeed, this issue can also be extended to the CAS as demonstrated in Daniel Köllerer v Association of Tennis Professionals (ATP), in which case, the CAS’ Code of Sports-Related Arbitration was held to be in breach of rights because it did not provide right of appeal to athletes in cases were charges were not sufficiently proven against them.

The FIFA is considered to be the most international of world organisations, with more affiliated member countries than the United Nations. FIFA regulates the sport of football, but there is a question raised in the scholarship as to whether any sports federations including the FIFA should be allowed to be completely autonomous and without any intervention from the general law because there are discrepancies between the professed reasons for the existence of the governing bodies and the way they exercise their powers. Particularly, there is concern for the activities like regulation of the employment of professional athletes, or the commercial exploitation of commercial rights. Therefore, there is a problem with the exclusion of the general law when it is related to the sports federation. In the UK, the courts have been reluctant to give so much autonomy to sports federations; this is seen in the judgment of the court in Cooke v. FA in 1972 that a national association cannot take as a defence the ‘binding authority’ of FIFA’s regulations if it is acting in restraint of trade. In 1981, Lord Denning observed that the court was not concerned with international law or with sovereignty but with the interpretation of the rules of the IAAF.’ Based on such decisions, it has been concluded by Wise and Meyer that UK courts do not recognise international, continental or national sports governing bodies as having the status of governmental or quasi-governmental organisations.

1. Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, (1995) C-415/93.
2. Modahl v British Athletic Federation Ltd (No 2) [2001] EWCA Civ 1447.
3. Brendan Schwab, ‘Embedding the human rights of players in world sport’ (2018) 17 The International Sports Journal 214.
4. CAS 2011/A/2490 Daniel Köllerer v Association of Tennis Professionals (ATP), Women’s Tennis Association (WTF), International Tennis Federation (ITF) & Grand Slam Committee, award of 23 March 2012.
5. Andre M. Louw, ‘An anomaly tolerated by the law: examining the nature and legal significance of the International Sports Governing Body’ (2007) 22(1) SA Publiekreg= SA Public Law 210.
6. Ibid
7. Ibid
8. Cooke v. FA, The Times, 23 March 1972, in ibid.
9. Reel v Holder [1981] 3 All ER 321.
10. A. Wise and B. Meyer, International Sports Law and Business, Vol.3 (Cambridge, MA: Kluwer Law International 1998) 1478.

Another issue that can demonstrate how the sports federations are not efficient enough to be completely autonomous, is related to the incidents that have highlighted corruption and mismanagement within the sports federations, including the IOC. There are a number of norm transgressions and ethical scandals; an example is the 2002 Olympic Winter Games bid scandal, which involved allegations of bribery used to win the rights to host the 2002 Winter Olympics in Salt Lake City; a personal commissions scandal amounting to $33 million in the International Volleyball Federation; and the so-called ISL affair in the FIFA in which high ranking sports officials had taken personal commissions worth around $100 million. These events raise the question of whether it is appropriate to allow sports federations and governing bodies to be completely outside the scope of general law and national law because there is potential for breach of rule of law for which there is a need for oversight of the courts within the national jurisdiction.

Due to the perceptions of the inefficiency of the sport governing bodies, there is also an argument made for the UK law to criminalise doping in sports, which is otherwise regulated by the World Anti-Doping Agency (WADA). This argument is based on the claim that the current anti-doping policy is ineffective. This argument has also been made by Nicole Sapstead of UK Anti-Doping (UKAD) who said that if “doping is allowed to continue at its current level, she predicts that the public will stop watching. In her opinion, the performances of clean athletes are undermined by doping and cynicism breeds quickly.” The argument is that the current system that is followed by the WADA is inadequate in the terms of the penalties and is therefore, insufficient to deter athletes from doping and also incapable of satisfying the public that “performances are clean, and therefore, the ‘spirit of sport’ is being lost.” Due to this, there are already laws made by France, Italy, Austria and Germany have made it an offence to traffic and supply PEDs and dope so that these laws can be used to punish an athlete who benefits financially from doping and competing. These laws are made despite there being WADA Code. Since the 1999 establishment of the WADA as a private international organisation for coordinating, monitoring, and promoting the worldwide fight against doping in sport, WADA has played an important role in the control of doping including in the Olympic Movement and national governments with the WADA Code of 2007 regulating this area. This also includes offences and penalties. Clearly when states make laws for criminalisation of doping in sports, it creates a legal structure that will be binding in the state’s jurisdiction over and above the WADA Code. The argument for making such laws in the UK proceed from the premise that the WADA Code is not adequate and that the WADA is not adequate to address doping in sports and loss of public confidence in sports.

Conclusion

In conclusion, global sports law and international sports law are two different legal systems. Global sports law relates to the sports federations. Sport federations are self-regulating and derive their powers from the contract between themselves and the members of such federations. Therefore, this is private law which is applicable in the case of sport federations. However, this does not mean that such rules and laws made by the sports federations are completely to the exclusion of the national law and the general law. The justification for the intervention in the sport federations is linked to the inadequacy and inefficiency of the sport federations to deal with all the situations and aspects of sports as seen in the inadequacy of the WADA Code to address doping in sports and the various incidents of corruption and mismanagement within the sport governing bodies including the IOC. This raises a justified question of whether the sport federations should be allowed to be self-regulating. This essay finds that there is a genuine argument for intervening in the decisions of sport federations.

1. Arnout Geeraert, Jens Alm, and Michael Groll, ‘Good governance in international sport organizations: an analysis of the 35 Olympic sport governing bodies’ (2014) 6(3) International journal of sport policy and politics 281.
2. Ibid.
3. Claire Sumner, ‘The spirit of sport: the case for criminalisation of doping in the UK’ (2017) 16(3-4) The International Sports Law Journal 217.
4. Ibid
5. Ibid, 218.
6. Ibid, 222.
7. Ibid.
8. Matthew J. Mitten and Hayden Opie, ‘Sports law: implications for the development of international, comparative, and national law and global dispute resolution’ in Robert C.R. Siekmann and Janwillem Soek (eds.), Lex Sportiva: What is Sports Law? (TMC Asser Press 2012).

Books

Blackshaw IA, International Sports Law: An Introductory Guide (TMC Asser Press 2017).

Foster K, ‘Is there a global sports law?’ in Robert C.R. Siekmann and Janwillem Soek (eds.), Lex Sportiva: What is Sports Law? (TMC Asser Press 2012).

MacIntosh EW, Gonzalo Bravo and Ming Li, International Sport Management (Human Kinetics 2019).

Mitten MJ, Sports Law in the United States (Wolters Kluwer 2017).

Mitten MJ and Hayden Opie, ‘Sports law: implications for the development of international, comparative, and national law and global dispute resolution’ in Robert C.R. Siekmann and Janwillem Soek (eds.), Lex Sportiva: What is Sports Law? (TMC Asser Press 2012).

Nafziger JAR, ‘International Sports Law’ in James AR Nafziger and Stephen F. Ross (eds.), Handbook on international sports law (Edward Elgar Publishing 2011).

Nafziger JAR, ‘European and North American models of sports organisations’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar 2011).

Wise A and B Meyer, International Sports Law and Business, Vol.3 (Cambridge, MA: Kluwer Law International 1998).

Journals

Foster K, ‘Global Sports Law Revisited’ (2019) 17(1) Entertainment and Sports Law Journal.

Geeraert A, Jens Alm, and Michael Groll, ‘Good governance in international sport organizations: an analysis of the 35 Olympic sport governing bodies’ (2014) 6(3) International journal of sport policy and politics 281.

Louw AM, ‘An anomaly tolerated by the law: examining the nature and legal significance of the International Sports Governing Body’ (2007) 22(1) SA Publiekreg= SA Public Law 210.

Schwab B, ‘Embedding the human rights of players in world sport’ (2018) 17 The International Sports Journal.

Sumner C, ‘The spirit of sport: the case for criminalisation of doping in the UK’ (2017) 16(3-4) The International Sports Law Journal 217.

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