The Two Faces of Sports Law

Sports law is a fascinating and rapidly developing field of legal practice and academic inquiry. It is an area of law that presents two faces – a public and a private face.

The public face of sports law refers to the approach taken to sport by Government, Parliament and the Courts. The UK operates a non-interventionist sports model which implies an ‘arms-length’ role for the state in sport in which sports are organised by the sporting associations themselves rather than through state legislation. This model reflects the prevailing view in UK politics that sport is essentially a private pursuit to be organised and promoted by private interests. Nevertheless, the state has recognised that as sport performs some public and quasi-public functions, it should retain an interest in the sector, although this interest is generally elaborated through arm’s length / semi-governmental organisations such the Sports Councils. Consequently, in theory at least, sports bodies in the UK retain autonomy to determine their own organisational and regulatory choices free from state interference. In practice, these choices are restricted by statutory and judicial influences on sport most notably in the areas of:

Stadium Safety
Crowd Disorder
The Application of Criminal Law to Sporting Conduct
The Regulation of Sports Injuries
Restraint of Trade

The public face of sports law has been expanded by the increasing involvement of the European Union in sporting matters. In the 1974 Walrave judgment, the Court of Justice of the European Union stated that sport is subject to European Union law whenever it is practiced as an economic activity, although some sporting rules, such as rules restricting eligibility to represent a national team, were removed from EU oversight if they amounted to rules of purely sporting interest. The recent approach of the Court is to treat most sporting activity as falling within the scope of EU law, although the Court does recognise that certain sporting rules should be sympathetically treated, particularly within the scope of the Treaty provisions dealing with freedom of movement for workers and competition law. The ability of the European Court to recognise the special characteristics of sport when applying these Treaty provisions has been strengthened by the entry into force of Article 165 of the Treaty on the Functioning of the European Union (TFEU) which calls upon the institutions of the EU to recognise the specific nature of sport. Although the relationship between UK sport and EU law is in a state of uncertainty following Brexit, the EU has been particularly influential in developing sports law in the areas of:

The Home Grown Player Rule
Transfer Windows
Training Compensation
The Rights of Non-EU Athletes
Sports Broadcasting
State Aid in Sport
Anti-Doping Rules
Selection Rules

The private face of sports law refers to the rules and constitutions of sports governing bodies and the jurisprudence of the specialist sports tribunals and appeals bodies. In football, for example, FIFA rules establish the global parameters in which regional confederations, such as UEFA, and national associations, such as the English Football Association, devise their own set of regulations. At each level specialist sports tribunals operate to hear disputes arising from these regulations. These decisions, in some cases, can be appealed to the supreme court of sport – the Swiss based Court of Arbitration for Sport (CAS). The existence of these sports tribunals and CAS has led some commentators to argue that the public face of sports law should step aside to allow sport to develop its own legal system which is more cost effective and quicker than recourse to ordinary courts. This system of sporting justice, which is often referred to as the emerging lex sportiva, has substantially shaped a range of sporting rules including those related to commercial and disciplinary matters.