If no, it’s certainly on its way
The simple notion of ‘sports law’ masks a deeper, underlying ambiguity in relation to how we analyse and define the disparate fields of legal study. Debate on this topic centres on whether we should view this enigmatic label as the more traditional ‘sport and the law’ (which encompasses the application of existing legal rules and norms to sporting disputes) or in the more maverick light of ‘sports law’ (a separate corpus of law — a lex sportiva — that boasts an underlying theory in order to piece together the various and highly-technical strands of sporting disputes).
I adopt the middle ground: there is not, at present, an identifiable, autonomous branch of law that warrants the prestigious title of ‘sports law’. However, it may only be a matter of time before even the staunchest of traditionalists are forced to admit that the law of sport has indeed arrived to the legal scene.
Criteria for a new field of law?
In sketching out the main elements of the creation of a lex sportiva, American law professor Timothy Davis argues that the strongest indication of an area of law transforming into a distinct legal entity is the “unique application by courts of law from other disciplines to a specific context.”
The sui generis nature of sporting disputes is best highlighted by what many sport lawyers term the ‘specificity of sport’. It is this concept that allows a national governing body to prevent men and women competing against each other, that enables the punishment of sportspersons who have increased their athletic ability through the use of performance-enhancing drugs (despite the fact that the athlete may not have demonstrated significant fault or negligence — Sharapova v International Tennis Federation) and that permits participants to inflict a level of injury upon each other that would normally be punished were it to happen off the field (R v Barnes).
As further evidenced by the reluctance of the UK government to criminalise doping under the Misuse of Drugs Act 1971, it appears that there is a unique sports-sympathetic jurisprudence evolving from the decisions of International Sports Federations’ final appeal tribunals and, more importantly, the Court of Arbitration for Sport (CAS).
This is lent further credence by the fact that, although arbitral awards are usually only binding upon the immediate parties in the present case, the awards and judgments of CAS often provide guidance in future cases. In short, they can often function as precedent.
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Consequently, it may simply be the traditional values of an anachronistic profession that is hindering the emergence of ‘sports law’. However, this is unsurprising given that the law of sport is not alone in its quest for recognition. Similar difficulties continue to plague the nascent topics of space law and computer law, whilst the same recognition problems initially befell the now firmly established areas of environmental law, company law and healthcare law.
On the other hand, lecturer Jack Anderson believes that sports law may only offer an ‘occasional snapshot of other more substantial areas of law’ (this echoes the comments of Joseph Sommer in relation to cyberspace law, where the author noted that it is “an excellent lens for seeing other things” but it is not a “particularly useful focal plane of legal analysis”). Furthermore, Professor James Nafziger astutely posts that lex sportive is the product of “only a few hundred arbitral decisions within a limited range of disputes over a historically short period of time.”
Why does it matter?
Clearly, this dispute is likely to rumble on for the foreseeable future. Nevertheless, a more pertinent question to consider at this stage is whether, beyond a mere academic concern, it really matters if we classify ‘sports law’ as a separate field of legal enquiry or not.
At first glance, the answer is no. However, if we scratch beneath this superficial surface, we see that the answer is not so clear-cut. Given the increasing frequency (and complexity!) of sports disputes, many associations, clubs and players are likely to seek tailored legal advice. The ongoing Pechstein litigation, which arose in 2009 and has yet to be fully resolved, is just one example of the juridification of contemporary sporting disputes.
If it is correct that parties are actively seeking high quality legal advice to resolve intricate sporting issue, it would be sensible for practitioners to have specialised knowledge of the elaborate association between law and sport. In order to attain this, one may need to recognise that ‘sports law’ is a discrete field of law that requires a dedicated study of its nuances and peculiarities. As such, the current ‘sports law v sport and the law’ debate may have practical implications that reach far beyond the confines of textbooks and journal articles.
For many, sports law may not be seen as intellectually rigorous enough to warrant the classification of its own, independent legal field. Sport is arguably seen by many practitioners and laymen as more about enjoyment and leisure, and it is probably correct that we should focus more on the participation in, rather than the litigation of, sports.
Nevertheless, to ignore the rapid emergence of sport (and the concomitant legal disputes that are intertwined within it) since its commercialisation and commodification in the early 1980s would be to brush aside and over-simplify the issue at hand. The law of sport may contain a wide variety of eclectic contents — some might say that it resembles a dog in a field; you never quite know what it might pick up next — but it still deserves respect.
In this light, the answer to whether a lex sportive exists perhaps lies in whether we believe sports law exists ourselves. In other words, the creation of a distinct field of law may be described as little more than a self-fulfilling prophecy. For example, sports law is now offered as an elective at many universities, written about by numerous academics (see, for example, the dedicated section on ‘Sports Law’ on Hart Publishing https://www.bloomsburyprofessional.com/uk/Hart/Sports-Law/) and litigated in various courts across Europe.
If sports law does not exist already, it is most certainly on its way.
James Brown is a Keele University graduate. He is the recipient of the Neuberger Prize 2017, a prize awarded to the top four academically performing law students from non-Russell Group universities in the UK.
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