Does sports law exist as a separate legal order?

Author: Pāvels Tjuševs is a graduate of the Riga Graduate School of Law (2007) currently working with Eversheds Bitāns law office, an affiliate of Eversheds International

BLT - British Latvian Trade, The magazine on the British Chamber of Commerce in Latvia, Spring 2008

What is "sports law"? The response to this question, quite often asked by lawyers,  is not easy to find.  Actually, it is not clear what answer to look for, especially in the Latvian context. Several questions arise: does sports law exist as a separate branch of law? What are the substantive areas of sports law and what is the role of a sports lawyer?

This article attempts to provide a brief insight into the concept of sports law as a transnational, autonomous legal order – the so-called lex sportiva. I will then focus on the current approach to sporting issues of the European Court of Justice and describe sports law in Latvia.

[1] Existence of sports law as a separate legal order

Opinions differ about the status of sports law. First, and the traditional view, is that sports law represents an amalgamation of various substantive areas of law that are relevant in the sports context.[1]Other commentators have begun increasingly to question the traditional view that no corpus of law exists that can be characterized as an independent field of law called sports law.[2] On the contrary, some commentators emphasize the growing body of case and statutory law specific to the sports industry as evidence of the existence of a separately identifiable body of law.[3]
Several factors may provide signs that a legal discipline has grown to the point when it is commonly accepted as such. These include unique application by courts, factual peculiarities, development of law journals, and others.
Some authors suggest that a global sports law – lex sportiva – currently exists, characterised by unique legal norms such as private contractual arbitration, principles of practice of international sporting federations, a distinctive sporting approach, an independent dispute resolution body[4], and others. [5]

[2] Sports law in Europe

Sport is a widely practised activity that plays an important economic, social, cultural, and educational role. The Amsterdam[6] and Nice[7] declarations, as well as the Commission white paper on sport[8] underline the social role of sport. The Nice declaration proclaims that sport has important social, educational and cultural value, and that the European sports model is deep-rooted in European civil society, comprising an important expression of culture and attitude towards sporting values.[9] Special emphasis is placed on football, since it is a truly global game, its influence cuts across economic, political, and cultural spheres[10], while it performs important social functions regarding education and integration, public health, and cultural and recreational purposes. Given the international character of sport, it is worth pointing out that it is a truly remarkable situation when sport on the European level is governed by essentially non-binding declaratory instruments.

The current approach of the European Court of Justice (the ECJ) states that sport is subject to Community law as long as it constitutes economic activity. However, the Court will always reserve a certain level of discretion to differentiate between an economic issue and a purely sporting issue not subject to EC law. The Court’s case law on the so-called sporting exception shows that it aims at protecting the integrity of the sporting system. Nevertheless, Member States should not make use of this discretion to disguise anticompetitive aims.

The landmark judgment of the ECJ in Walrave (1974)[11] established the principle that sport falls under the scope of application of Community law in so far as it constitutes an economic activity within the meaning of Article 2 ECT. Since then, various cases (Dona, Bosman, Deliège, Lethonen) have confirmed this approach. It is significant that the judgment that has aroused more media interest than any other in the history of Community case law is the Bosman judgment[12]

[3] Sports law in Latvia

The approach of Latvia to sports law is quite traditional, i.e. sports law represents a mixture of different areas of law, such as employment law[13] and contract law.
Sports law in Latvia is governed by the Sports Act, 2002[14], which aims at defining general and legal grounds for organization and development of sport, the basis for financing sport as well as principles of participation in the international sports movement. The Sports Act defines rights and obligations of sportsmen and also implements the principles of safety, equality, and fair play.

[4] Conclusion

It is disputable whether at present sports law can truly be considered as a separate legal discipline at a global level. However, within the Latvian jurisdiction sports law exists only as a merger of different legal components such as contract law, competition law, advertisement law, and others.

Just as it is presently, in the future the development of sports law to a large extent will depend on the interpretation provided by the ECJ and the Court of Arbitration for Sport in Lausanne.

[1] Paul C. Weiler & Gary R. Roberts, Sports and the Law (1993).
[2] Kenneth L. Shropshire, Introduction: Sports Law?, 35 Am. Bus. L.J. 181, 182 (1998).
[3] Simon Gardiner, et al., Sports Law 71 (1998) (quoting C. Woodhouse, The Lawyer in Sport: Some Reflections, 4 (3) Sport and the Law J. 14 (1996)).
[4] Court of Arbitration for Sport.
[5] Foster K., Lex Sportiva and Lex Ludica: the Court of Arbitration for Sport’s Jurisprudence, ESLJ, Vol.3., Nr.2, 2006.
[6] Amsterdam Declaration, 1997.
[7] Nice Declaration on the Specific Characteristics of sport adopted by the Council of European Union (the EU Heads of State) in 2000.
[8] Commission White Paper on Sport, (COM) 2007 391 Final, Brussels, 11.7.2007.
[9]Ibid. p.11.
[10]Ibid. p.16.
[11] Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405.
[12] Case 13/76, Donà v Mantero [1976] ECR 1333, Case C – 415/93 Union Royale Belge des Sociétés de Football Association ASLB v Jean-Marc Bosman [1995] ECR I-4921, Joined cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée [2000] ECR I-02549, Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine v Fédération Royale Belge des Sociétés de Basketball [2000] ECR I-2681.
[13] Employment Act, Latvian Herald , 01.06.2002, nr.105.
[14] Sports Act, Latvian Herald, 13.11.2002, nr.165.