Navigating the Realm of Global Sports Law

Introduction

This essay critically discusses whether it can be said that there is a global sports law. This essay explores features of sport law and regulation applicable to it, including the regulations of the sports federations. The concept of sports law has become more significant because of the growth of the sports industry (also in a transnational sense) with substantial involvement of the corporate industry, which also poses some risk to autonomy and integrity of sports thereby leading to concerns for there to be a global sports law that includes procedural rules and practices of private international law, national laws, rules of international sports federation, and even principles of comity for enforcing foreign judgments related to sports law as in the increasingly transnational sports, private issues between a sportsperson and a sports organisation may fall within the public law of international sports. It is argued that instead of looking at global sports law as a field that excludes national and international law, it may be considered to be an area that sees self-regulation and autonomy by sports bodies but also sees application of national and international law particularly in the area of core principles of rule of law, such as, human rights.

Background

Sports are for a major part, self-regulatory in nature; but there are national laws, international laws and club or federation regulations that are applicable to sports. Every sport is subject to rules and regulations that are made by the relevant sport bodies; for most sports, such bodies exist at national, regional, and international levels. It can be said at the outset that every sport is regulated by a set of rules and regulations. However, the question is whether it is appropriate to say that there is a global sports law. It would be useful to define at the beginning what global or international sports law could refer to. Sports law is recognised in international sports law with distinctive body of principles, rules, and procedures governing the conduct and consequences of transnational activities of sports, which rules are based on principles derived from tort law, contract law, employment law, anti-trust, and competition law.

To say that there is something that can be describes as global sports law, it would have to be established that the sports law is a distinct body of principles and laws and regulations that are applicable to sports as distinct from other fields. For example, contract law is applicable to sports law; however, is it general contract law that is applicable to sports, or is there development of specific doctrines derived from contract law but specifically applicable to sports law and is it that these doctrines are applicable on a global level for it to be justified to say that there is global sports law? There is the basis for asking whether there is a global sports law in the sense that the rules related to sports are applicable on a global level and they can be distinguished. To some extent, it is seen that sporting activity is distinguished from other activities and discrete doctrines are being developed with respect to sports as visible from jurisprudence developed by English courts treating the sporting bodies decisions as subject to particular principles. At this point, reference may be made to Lord Woolf’s judgment in Modahl v British Athletic Federation, wherein his Lordship noted that sports law cannot be treated simply as a part of ordinary private law because of the heritage attached to it and because of the immense public interest in sports.

1. James A. R. Nafziger, ‘International sports law’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar Publishing 2011).
2. Simon Gardiner, Roger Welch, Simon Boyes and Urvasi Naidoo, Sports law (Routledge 2012).
3. Ian S. Blackshaw, International Sports Law: An Introductory Guide (T.M.C. Asser Press 2017) 10.
4. James A. R. Nafziger, ‘International sports law’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar 2011) 3.
5. Michael Beloff, Tim Kerr, Marie Demetriou and Rupert Beloff, Sports Law (Hart Publishing 2012) 3.
6. Modahl v British Athletic Federation Ltd (No 2) [2001] EWCA Civ 1447.

Global sports law

Foster writes that given the globalisation of sports the issue of how sports are governed becomes significant, writing:

“The globalisation of sport has moved the focus of legal regulation increasingly onto international sports federations. These organisations control and govern international sport. They have rulebooks and constitutions. They take decisions that can have profound effects on the careers of players and that have important economic consequences. They are autonomous organisations and are independent of national governments. How they are governed and how their activities are regulated are key questions.”

The term ‘global sports law’ or ‘lex sportiva’ is used to argue against the intervention of national and international laws for regulation and to argue in favour of self-regulation by international sports federations. In this sense, the term ‘global sports law’ is distinguished from the term ‘international sports law’. Global sports law can be characterised as a set of rules and regulation formed by sport federations with legitimate authority for a specific sport; with a set of legal principles emerged from Court of Arbitration for Sport (CAS) awards applied by CAS arbitrators; and a normative order of international regulation of sports combining sport organisation’s regulations and CAS jurisprudence with general principles of law. In other words, global sports law is described as an autonomous field which has a transnational and private legal order which is governed by principled of privity of contract and consent, and therefore it is outside the scope for state intervention. However, this point of view may not be completely accurate description of sports law as noted by Lord Woolf in Modahl v British Athletic Federation. There may be a tension between the thesis presented by those who argue that there is a global sports law which lies outside the scope of national and even international law, and the principle of law posed by Lord Woolf in Modahl. The question is whether sports law aligns with characteristics of global sports law and also allows some scope for the possibility for courts to intervene under certain circumstances that are otherwise under the domain of private law.

It is argued that global sports law can be said to acquire the status of a global private regulatory regime because it is outside the scope of jurisdiction of national courts and legislatures. At this point, an example of anti-doping regulation may be taken here as this is one of the most well regulated areas in what may be called as global sports law. In this regulatory context, the 1999 establishment of the World Anti-Doping Agency (WADA) is an important development; WADA is a private international organisation which coordinates, monitors, and promotes the worldwide fight against doping in sport. However, WADA is characterised as a joint effort of the Olympic Movement and national governments. The WADA Code of 2007 contains twenty five articles including on offences and penalties and it is said to have established “an advanced global system of justice, which creates a more or less uniform set of internationally respected and enforceable legal rules.”

1. 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.
2. Ibid.
3. Ibid.
4. Ken Foster, ‘Global Sports Law Revisited’ (2019) 17(1) Entertainment and Sports Law Journal.
5. Modahl v British Athletic Federation Ltd (No 2) [2001] EWCA Civ 1447.
6. G Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in G Teubner (ed.), Global Law Without a State (Dartmouth Publishing Co. 1997).
7. 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).
8. Ibid.
9. Ibid, 282.

It may be admitted that there are cases where national courts have refused to hear matters that come within the scope of such sports bodies; a good example is from the United States Court of Appeals for the Sixth Circuit, in which case the court held that United States held that an Ohio district court lacked personal jurisdiction over a London-based IF in a case involving an American athlete who challenged a Paris laboratory's finding that a urine sample he provided in Monaco tested positive for a banned performance enhancing substance on the ground that this suspension violated Ohio state law. Therefore, there is some justification for arguing that the national courts do not interfere with the global sports law. In this regard, the statement of Katia Fach Gómez may be referred to where it was observed that Olympic Charter (IOC) rules and IFs are a genuine form of global law, privately created and globally applied to produce direct effects on individuals.

Nevertheless, global sports law is not completely divorced from national laws and can be explained as a blend of public authorities and national governments representing a hybrid institution with both the private and public legal regimes. This may support the principle laid down by Lord Woolf in Modahl v British Athletic Federation. As mentioned earlier, even WADA is characterised as a joint effort of the Olympic Movement and national governments. Thus, it may be fair to say that global sports law acquires a mixed breed of self regulation and national regulation. For instance, the Sport Anti-Doping Rules (2009) are also included in the regulatory framework of UK sport. Then what is the element that distinguishes global sports law? It is argued that the distinguishing feature of global sports law from the international sports law is that the latter can be enforced at the national court. Still, it is to be recalled that global sports law has been characterised as a normative order of international regulation of sports blending organisational regulations and CAS jurisprudence with general principles of law. Thus, there may be some overlapping between global sports law and international sports law.

International sports law are based on general principles of different laws including contract, tort, employment, anti-trust and competition laws. However, even the global sports law is derived from the same principles. The difference between the international sports law and global sports law may lie in the source of power and authority of the regulation with the latter deriving its authority from the contractual consent of the actors and members. It is this context that may make the regulating power in global sports law autonomous and immune from national courts and legislatures. This requires some focus on sports institutions and authorities. This is discussed next in the essay.

Institutions and sports law

Sports institutions or organisations adhere to the functional models of rules. Sports organisations are based on pyramidical structures starting with the autonomous non-professional clubs, moving to regional federations that organise competition amongst the clubs, moving on to the national federations overseeing regional federations, and culminating at the highest level of the European federations, like UEFA (for football) or the ICC (for cricket) which organise championships based on international sports federation rules. The international organisations have framework that include rules of promotion and relegation, such as, seen in English football association rules for promoting equality amongst different teams.

1. Reynolds v. Int'l Amateur Athletic Fed'n 23 E3d 1110 (6th Cir. 1994).
2. Katia Fach Gomez, ‘Enforcing global law: international arbitration and informal regulatory instruments’ (2015) 47(1) The Journal of Legal Pluralism and Unofficial Law 112.
3. L Casini, ‘Global Hybrid Public-Private Bodies: The World Anti-Doping Agency (WADA)’ (2009) 6(2) International Organizations Law Review 421.
4. Modahl v British Athletic Federation Ltd (No 2) [2001] EWCA Civ 1447.
5. Jack Anderson, Modern Sports Law: A Textbook (Bloomsbury Publishing 2010).
6. James A. R. Nafziger, ‘International sports law’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar 2011) 4.
7. Ken Foster, ‘Global Sports Law Revisited’ (2019) 17(1) Entertainment and Sports Law Journal.
8. James A. R. Nafziger, ‘International sports law’ in James A. R. Nafziger and Stephen F. Ross (eds.), Handbook on International Sports Law (Edward Elgar 2011) 3.

The rules for sports activities are created by the highest level of institution for a given sport; for example, FIFA formulated all legal rules and regulations related to football played competitively anywhere in the world, like the Rules Governing Procedure of Players’ Status Committee and Dispute Resolution Chamber, 2021, and FIFA Anti-Doping regulation 2021, and also acts as the legislator in all kinds of football activities. Therefore, the regulation is made by the highest level institution or organisation in a given sport. Even the national laws leave regulation of sports with the sports federations or bodies that derive their power from the voluntary agreement between them and its members.

Nevertheless, national laws are also relevant to the making of certain laws and rules related to sporting activities; for instance, in the UK, Parliament does at times makes laws that may be related to sports an example being the Sport Anti-Doping Rules (2009) that incorporate World Anti-Doping Code into the regulatory framework. Furthermore, national laws or international laws may even be applied to certain areas that the sports federations do not make laws for, such as arbitration, where the Arbitration Act 1996 will also apply. In the United States, broad autonomous authority is given to sports governing bodies like the PGA (Professional Golfers Association) and the USOC (United States Olympic Committee). However, to some extent the national laws, like the US Constitution would apply, particularly in the context of rights like equal protection of law, and protection of privacy. There are also different federal and state like the Sport Broadcasting Act 1961, and the Washington’s Zachary Lystedt Law 2009 in the United States. There are also different antitrust, antidiscrimination, and labour laws (to name a few) that are applicable. Also applicable is the common law on contract, tort and private association that are applied to sports.

The justification for and arguments against self-regulation of sports federations

One of the most pressing arguments against the global sports law or the idea that the sports law should be completely self-regulated, and be outside the scope for interference by the national and international law is that there needs to be greater legal scrutiny, democracy, transparency, and respect for fundamental rights in sports law. Thus, there is an argument against the complete autonomy of the sports federations or the self-regulation of the sports laws to the complete exclusion of the national and international laws as also articulated by Lord Woolf. On the other hand, sport organisations have regulatory autonomy and are the bodies that make private sporting rules for which they demand that they have the protection of the global sports law. The issue is that sports rules made by the sports organisations may also breach principles of public law. Another issue is related to the efficiency of the rules devised by the sports organisations.

1. 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.
2. Ibid, 91.
3. FIFA, ‘Documents’ (2021) accessed .
4. Eric W. MacIntosh, Gonzalo Bravo and Ming Li, International Sport Management (Human Kinetics 2019) 215.
5. Jack Anderson, Modern Sports Law: A Textbook (Bloomsbury Publishing 2010).
6. Matthew J. Mitten, Sports Law in the United States (Wolters Kluwer 2017).
7. Ibid.
8. Ibid.
9. Ibid.
10. Carmen Pérez González, ‘International Sports Law and the Fight Against Doping: An Analysis from an International Human Rights Law Perspective.’ (2014) European Society of International Law 4.
11. Modahl v British Athletic Federation Ltd (No 2) [2001] EWCA Civ 1447.

Foster has argued that the idea that sports organisations have total autonomy and are self-regulating without intervention from national and international sports law, contradicts the rule of law. For sports organisations, autonomy relates to political, legal, and financial autonomy. However, such autonomy is questioned on the grounds of core principles of international law, such as, human rights, which is discussed next.

Sports organisations have been considered to not comply with internationally recognised human rights, with players’ rights being violated as the latter are not involved in the negotiations on rule making or in how regulations are framed by such bodies. In such situations, there are instances of breach of rule of law. The case of Oberlandesgericht Munchen (OLG) can be referred to here where validity of a unilateral arbitration clause was challenged on the ground that the International Skating Union was abusing its dominant position to unilaterally impose arbitration clauses in their agreements with the athletes when the abuse of dominant position is prohibited by the Article 102 of Treaty on the Functioning of the European Union (TFEU). In this case, the arbitration clause was held to be against antitrust law. In Daniel Köllerer v Association of Tennis Professionals (ATP), the CAS’ Code of Sports-Related Arbitration was claimed to not have provided the right of appeal when the charges were not sufficiently proven against the athlete. In Mogadi Caster Semenya v International Association of Athletics Federations, the relevant regulations by the IAAF (World Athletics) on the ground of these being discriminatory on grounds of sexuality, while the IAAF justified it on the ground of preserving the integrity of female athletics in restricted events. In Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, the European Court of Justice held that sports clubs cannot restrict the free movement of workers because that would breach TFEU, Article 45 (1). In Greg v Insole, the High Court held that cricket players could not be barred from participating in unauthorised matches because that would be restraint of trade; this followed rules made by the ICC that disqualified players from playing in any official test match if they were to participate in unauthorised matches.

The cases discussed above strengthen the argument that it is possible that the rules and regulations made by the sports organisations may be contrary to the rule of law and affect the human rights and other rights of the athletes who are subjected to these rules. In the cases discussed above, the sports authorities were not allowed to claim self-regulation and autonomy as grounds for refusing interference by national or international law. Therefore, there are international laws as well as national laws that are applicable to the sports laws and have tried to incorporate human rights into sports laws regulation for the sports bodies. For example, the Universal Declaration of Player Rights 2017 incorporates human rights protections like rights of access to sport, protection of minors, prohibition of discrimination, and labour rights into the sports regulations. EU laws in the European Union, like the TFEU also provide norms that are applicable to sports bodies and their private contracts with athletes; for instance, Article 101 and its prohibition on cartels that could disrupt free competition in the European Economic Area or the Article 102 prohibition on abuse of dominant position. These norms are used by courts to regulate the actions of the sports regulators and bodies. National laws are also relevant to this; for instance, Section 18 of the UK Competition Act 1998 prohibits abuse of dominant position.

1. 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).
2. Ken Foster, ‘Is There a Global Sports Law?’ (2003) Entertainment and Sports Law Journal, accessed .
3. Arnout Geeraert, Michael Mrkonjic and Jean-Loup Chappelet, ‘A rationalist perspective on the autonomy of international sportgoverning bodies: towards a pragmatic autonomy in the steering of sports’ (2015) 7(4) International Journal of Sport Policy and Politics 473.
4. Brendan Schwab, ‘Embedding the human rights of players in world sport’ (2018) 17 The International Sports Journal 214.
5. International Sports Law Centre, ‘The Pechstein ruling of the OLG München - A Rough Translation’ (2015) Asser International Sports Law Blog accessed .
6. A Duval and B Van Rompuy, ‘Protecting Athletes’ Right to a Fair Trial Through EU Competition Law: The Pechstein Case’ in Christophe Paulussen, et al (eds.), Fundamental Rights in International and European Law - Public and Private Law Perspectives (T.M.C. Asser Press 2016).
7. 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.
8. CAS 2018/O/5794 Mogadi Caster Semenya v International Association of Athletics Federations.
9. Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, (1995) C-415/93.
10. Greig v Insole [1978] 1WLR 302.

1. Conclusion

To conclude, the discussion in this essay has demonstrated how global sports law to some extent can be said to be a fact in existence because there is self-regulation and autonomy of sports federations and bodies that have been accepted by courts in the national as well as international settings. At the same time, there is evidence that demonstrates how national laws and the international laws also apply especially where public law or rule of law is applicable. This is most particularly seen in the area of human rights. Examples in this essay have included provisions from the TFEU, the Competition Act 1998 and other laws in countries like the United States, which have been applied to situations concerning arrangements or regulations of the sports bodies. This represents the fact that there is applicability of laws over sports. This essay also provided evidence in the form of case law that have demonstrated the applicability of general laws over sports. What can be said that in certain situations, such as those involving human rights of athletes and the abuse of dominant position of sports bodies to impose unilateral rules over the athletes, the general law will apply. The conclusion can then be that global sports law, while it does exist, does not preclude the application of national laws and international laws over the sports. Global sports law is not denied because the fact that there is regulation that is made by the sports bodies and institutions and such regulation is for the most part accepted and recognised by the general law.

1. Matthew Kaiser, ‘A guide to the World Players Association’s Universal Declaration of Player Rights’ (Law in Sport 2018) accessed .

Books

Anderson J, Modern Sports Law: A Textbook (Bloomsbury Publishing 2010).

Beloff M, Tim Kerr, Marie Demetriou and Rupert Beloff, Sports Law (Hart Publishing 2012).

Blackshaw IS, International Sports Law: An Introductory Guide (T.M.C. Asser Press 2017).

Duval A and B Van Rompuy, ‘Protecting Athletes’ Right to a Fair Trial Through EU Competition Law: The Pechstein Case’ in Christophe Paulussen, et al (eds.), Fundamental Rights in International and European Law - Public and Private Law Perspectives (T.M.C. Asser Press 2016).

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).

Gardiner S, Roger Welch, Simon Boyes and Urvasi Naidoo, Sports law (Routledge 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 A. R. 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).

Teubner G, ‘Global Bukowina: Legal Pluralism in the World Society’ in G Teubner (ed.), Global Law Without a State (Dartmouth Publishing Co. 1997).

Journals

Casini L, ‘Global Hybrid Public-Private Bodies: The World Anti-Doping Agency (WADA)’ (2009) 6(2) International Organizations Law Review 421.

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

Gomez KF, ‘Enforcing global law: international arbitration and informal regulatory instruments’ (2015) 47(1) The Journal of Legal Pluralism and Unofficial Law 112.

González CP, ‘International Sports Law and the Fight Against Doping: An Analysis from an International Human Rights Law Perspective.’ (2014) European Society of International Law 4.

Geeraert A, Michael Mrkonjic and Jean-Loup Chappelet, ‘A rationalist perspective on the autonomy of international sportgoverning bodies: towards a pragmatic autonomy in the steering of sports’ (2015) 7(4) International Journal of Sport Policy and Politics 473.

Schwab B, ‘Embedding the human rights of players in world sport’ (2018) 17 The International Sports Journal 214.

Websites

FIFA, ‘Documents’ (2021) accessed .

Foster K, ‘Is There a Global Sports Law?’ (2003) Entertainment and Sports Law Journal, accessed .

International Sports Law Centre, ‘The Pechstein ruling of the OLG München - A Rough Translation’ (2015) Asser International Sports Law Blog accessed .

Kaiser M, ‘A guide to the World Players Association’s Universal Declaration of Player Rights’ (Law In Sport 2018) accessed .

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