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What is Sports Law? Lex Sportiva and Lex Ludica: A Reassessment of Content and Terminology

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Introduction to International and European Sports Law

Part of the book series: ASSER International Sports Law Series ((ASSER))

Abstract

Can sports law be considered as an independent substantive area of the law, does it enjoy recognition as such, and if so, why? This is actually the primary question that requires answering, because the answer to this question is not unchallenged. The question of what sports law is can then be addressed. This contribution is structured as follows: (1) Does sports law, a sports law, sports law as an area of law exist? (2) What does sports law consist of? (3) A reassessment of content and terminology, and (4) What is the ‘hard core’ of sports law? In summary, it can be concluded that: (1) sports law exists, (2) according to the ‘sources theory’ which in fact is presented in this address, it comprises a public and a private part, (3) it is proposed to name the public part lex sportiva (sporting law) and the private part lex ludica (sportive law), and (4) the ‘hard core’ of sports law is chiefly ‘judge-made law’: of the European Court of Justice (now: Court of Justice of the EU) as the public judge—at least from a European (EU) perspective (regional), and of the Court of Arbitration for Sport as the private court (global).

This is the full text of the inaugural lecture which was delivered in summarised form upon the author’s acceptance of the appointment as Professor of International and European Sports Law at the School of Law of Erasmus University Rotterdam on Friday, 10 June 2011.

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Notes

  1. 1.

    Cf., Davis 2001, p. 211.

  2. 2.

    See also infra under Sect. 1.3.1.

  3. 3.

    By way of oratio pro domo.

  4. 4.

    Cf., also infra under Sect. 1.3.4.

  5. 5.

    Beloff 2005, p. 49.

  6. 6.

    Mitten and Opie 2010, pp. 3–4 and n. 6, p. 4.

  7. 7.

    The classical representative of this position is the eminence grise of sports law in England, Grayson 1994, p. XXXVII. A recent publication in this tradition is, for example, Donnellan 2010.

  8. 8.

    Davis 2001, pp. 211–214.

  9. 9.

    The concept of the ‘specificity of sport’ has also become established beyond European Sports Law (see infra under Sect. 1.3.6) on a worldwide scale, for example in the FIFA player’s status and transfer regulations, the rules of the FIFA Dispute Resolution Chamber (DRC) and pertinent CAS jurisprudence (cf., the Webster, Matuzalem and De Sanctis transfer ‘buy-out’ awards of CAS).

  10. 10.

    Case C-176/96.

  11. 11.

    So-called transfer windows.

  12. 12.

    Apart from that, in this author’s opinion, the old-fashioned tradition of one transfer window (between two full competitions at the start of the football season) would be sufficient and fair, since it prevents the composition of teams being changed during the winter break which unduly distorts the initial balance of strength between clubs during competition.

  13. 13.

    Mitten and Opie 2010, p. 3 and note 3, comment that in spite of the fact that almost all areas of the law—individually and in combination—regulate competition (including broad and important areas such as competition law, the law of obligations, intellectual property law and employment law), relatively few academics teach sports law or are scholars of sports law. According to the Association of American Law Schools (AALS) Directory of Law Teachers 2009–2010, there are only 120 professors teaching sports law, while more than 340 are specialised in competition law, 1800 in constitutional law and 360 in employment law. These three fields of law are the main areas of public law regulating sport in the United States. So, there is scope for a greater focus on sport on these fields of law. See the website of the ASSER International Sports Law Centre (www.sportslaw.nl. under ‘The Centre’) for a global listing of International and National Sports Law Associations, Sports Law Centres and Sports Law Journals.

  14. 14.

    Real Madrid, for example, tops the world ranking list of clubs in terms of annual turnover for 2010 with more than EUR 438 million. The total turnover of all professional clubs exceeded 4 billion euros for the first time last year (according to data from accountancy firm Deloitte, as published in NRC Handelsblad on 11 February 2011).

  15. 15.

    Beloff 2005, n. 5, p. 52. For example, in the context of the topical fight against sporting fraud, in particular match fixing in relation to legal or illegal sports betting within the framework of national or international organised crime, a distinction can be made between measures that are horizontally applicable (e.g. to episodes of corruption in the private sector, independently of the different business sectors concerned) and measures that have been specifically adopted to address sporting fraud and match fixing in particular (‘vertical law’); cf., Negotiated procedure EAC/25/2011, Study on the legal framework applicable to sporting fraud, notably match-fixing, in the EU Member States, European Commission, Directorate-General for Education and Culture, Annex 1—Terms of Reference, para 3.2, p. 4.

  16. 16.

    Nafziger 2004b, p. 3; also included under the title ‘Lex Sportiva and CAS’ in: Blackshaw et al. 2006, p. 409. See also: Nafziger 2004a, p. 48.

  17. 17.

    Devyatovski v IOC, 2009 A 1752.

  18. 18.

    Foster 2010, p. 20; paper presented during the Lex Sportiva Conference at Pelita Harapan Universitas (UPH), on 22 September 2010 in Jakarta, Indonesia, organised in collaboration with the Indonesia Lex Sportiva Instituta and with the support of the Ministry of Foreign Affairs of Indonesia, the National Olympic Committee, the T.M.C. Asser Instituut and the Indonesian football league.

  19. 19.

    Casini 2010, p. 3.

  20. 20.

    FIFA v WADA, CAS 2005/C/976 and 986.

  21. 21.

    CAS 2008/A/1545.

  22. 22.

    Foster 2010, p. 20. However, see previously also, CAS/2004/A/704, suggesting that CAS decisions constitute a ‘lex sportiva’ that subsequent CAS panels should consider.

  23. 23.

    MacLaren says that the term ‘lex sportiva’ was coined by the acting Secretary General of the Court of Arbitration for Sport. Matthieu Reeb, at the time of the publication of the first Digest with awards of the CAS in the period 1986–1998 (Berne, 1998), in: McLaren 2001, p. 379, footnote 11; in the introduction to the Digest of CAS Awards II 1998-2000 (The Hague/London/NewYork, 2002), Reeb writes that the Digest of CAS Awards 1986–1998 recorded the creation of a lex sportiva through the arbitral awards of the CAS (p. XXX). The term ‘lex sportiva’ is not a pure Latinism, since the adjective ‘sportiva’ is not Latin, the term ‘lex sportiva’ obviously was created by analogy with lex mercatoria; see generally, Kolev 2008, pp. 57 and 60–62.

  24. 24.

    Erbsen 2006, pp. 441, 443–444.

  25. 25.

    Foster 2003, pp. 1–2, 8.

  26. 26.

    Foster 2006, pp. 420–421.

  27. 27.

    Casini 2010, pp. 2–4.

  28. 28.

    Latty 2011, paper presented during the Lex Sportiva Conference at Pelita Harapan Universitas (UPH), on 22 September 2010 in Jakarta, Indonesia, organised in collaboration with the Indonesia Lex Sportiva Instituta and with the support of the Ministry of Foreign Affairs of Indonesia, the National Olympic Committee, the T.M.C. Asser Instituut and the Indonesian football league. See also: Latty 2007.

  29. 29.

    In the CAS award AEK Athens and SK Slavia Praha v UEFA, ‘lex ludica’ is described as a set of unwritten legal principles, a sort of lex mercatoria for sports (CAS 1998/200 at para 156); see also, CAS 2009/A/1768 at para 5.2, with reference to CAS 1998/200.

  30. 30.

    Foster 2006, p. 421.

  31. 31.

    Wax 2010, pp. 25, 28; paper presented during the Lex Sportiva Conference at Pelita Harapan Universitas (UPH), on 22 September 2010 in Jakarta, Indonesia, organised in collaboration with the Indonesia Lex Sportiva Instituta and with the support of the Ministry of Foreign Affairs of Indonesia, the National Olympic Committee, the T.M.C. Asser Instituut and the Indonesian football league. See also: Wax 2009.

  32. 32.

    Weatherill 2010b. See also: Weatherill 2007.

  33. 33.

    Civil courts as well as criminal courts.

  34. 34.

    Cf., as an example of a casus belli—in the new meaning of legal proceedings on war—an event such as the border conflict which El Salvador and Honduras waged with one another in the 1960 s following a series of football matches which escalated out of control (casus belli in the traditional sense) (see: Kapuściński 1978).

  35. 35.

    See: Soek 2006a, pp. 28–31 and 33–35.

  36. 36.

    Chaker 2004, pp. 9–11.

  37. 37.

    See: Law Number 3 Year 2006 of the Republic of Indonesia concerning National Sports System. In China, the 1995 Sports Law is currently being reviewed, see Nafziger and Wei 1998, pp. 453–483.

  38. 38.

    See: Coenen 2009, pp. 59–61 and 64–65; Pearson and James 2009, pp. 535–554.

  39. 39.

    See: Koch 2007, pp. 95–158 (Part II.B: Public Law).

  40. 40.

    Wax 2010, p. 26. Jacobs 1975, p. 52, says that the Games of Greek antiquity were an early example of the influence of sport on the development of international law and that these Games can therefore also be seen as one of the first steps towards the creation of true international law between ethnically related, but completely autonomous city states.

  41. 41.

    For the activities of the Council of Europe in the field of sport, see Siekmann and Soek 2007. Regarding the combating of football hooliganism in the European Union, see Football Hooliganism with an EU Dimension: Towards an International Legal Framework 2004; also: Mojet and Siekmann 2009, pp. 499–533.

  42. 42.

    See Siekmann and Soek 2005; see in particular regarding the ‘sports article' in the Lisbon Treaty: Lisbon Treaty and EU Sports Policy 2010. See also, Weatherill 2010a, pp. 11 and 14–17. For a comparison of types of ‘continental sports law’ see Nafziger 2008, pp. 100–108; see also: Weatherill 2000, pp. 155 et seq.; also included in Weatherill 2007, pp. 155–176. See in general also, Siekmann and Soek 2011, pp. 41–51 and 54.

  43. 43.

    See Siekmann 2008, pp. 121–124.

  44. 44.

    A distinguishing feature of international sports federations (Ifs) amongst (private) international organisations is their ‘normative’ functions, which possibly contributes one more, minor argument to consider ‘sports law’ as a separate area of law.

  45. 45.

    See Mestre 2009.

  46. 46.

    See Siekmann and Soek 1998.

  47. 47.

    See Casini 2009, pp. 421–446; See also Siekmann 2011a, b, pp. 89–96. See in general: David 2008.

  48. 48.

    Siekmann et al. 1999. See also Soek 2007, pp. 159–561 (Part III: Sport Rules and Regulations).

  49. 49.

    See Siekmann et al. 2007; see also Martins and Reiter 2010, pp. 7–12. Roberto Branco Martins is initiator and director of the Dutch professional football players’ agents association ProAgent and general manager of the European Federation of Football Agents (EFAA).

  50. 50.

    See Siekmann and Soek 2001. See also: Blackshaw 2009.

  51. 51.

    Blackshaw et al. 2006.

  52. 52.

    See de Weger 2009.

  53. 53.

    Jakarta (Indonesia) is the only place to have a Lex Sportiva Instituta. It was founded several years ago by Dr Hinca Pandjaitan, a honorary member of the Hague International Sports Law Academy [HISLAC(a)] which was established in Djakarta in September 2010, and is the private initiative of a law firm that is not officially connected with any university.

  54. 54.

    A famous example of the ball not being returned to the other team occurred on 13 February 1999 during the FA Cup tie between Arsenal and Sheffield United, when Nwankwo Kanu, making his debut for Arsenal, mistakenly took a ball from a teammate that was intended for the opponent and crossed it for Marc Overmars to score the winning goal. Arsenal manager Arsène Wenger subsequently offered to have the match re-played. This happened, and Arsenal won again 2-1.

  55. 55.

    The in-depth study of the Laws of the Game of Association Football in a historical and comparative (in particular, team sports) perspective will be undertaken by this author in the coming years. Especially, the Laws on the off-side rule and offences (‘fouls and misconduct’) are of critical importance, the latter for the benefit of their further improved application also to be examined from the perspective of generally recognised principles of criminal law (cf., the concepts of carelessness, recklessness and excessive force already having been introduced in Law 12). See, in this context, Rous and Ford 1974.

  56. 56.

    CAS 2007/A/1217.

  57. 57.

    Soek 2006b.

  58. 58.

    For a detailed elaboration of this issue in relation to the Feyenoord/UEFA case, see Mojet and Siekmann 2009, pp. 530–531.

  59. 59.

    Case C-36/74, Case C-176/96 and Case C-519/04, respectively.

  60. 60.

    Case C-325/08.

  61. 61.

    See Parrish and Miettinen 2008. In the jurisprudence of the European Court of Justice regarding ‘sports betting’ [nine cases from Zenatti (1999) to Carmen Media (2010)] it is not ‘sport specificity’ (rules and regulations of sports organisations), but rather national lottery legislation and policy that is tested against EU law. The subject of sports betting as part of European Sports Law (ESL) is sports-related, but not ‘sports-rule’ related and as such it looks like to belong to the marginal topics of ESL. See also Siekmann 2011a, b, pp. 97–99, 102–117 and 120–121, and also in Anderson et al. 2011.

  62. 62.

    Weatherill 2010c, pp. 3–6.

  63. 63.

    See: Study on the equal treatment of non-nationals in individual sports competitions, Commissioned by the European Commission to the T.M.C. Asser Instituut and Edge Hill and Leiden Universities, December 2010. See for the Study’s Introduction, Analysis, Conclusion and Recommendations, and Executive Summary, The International Sports Law Journal (ISLJ) 2011/1-2, pp. 152–172.

  64. 64.

    McLaren 2001, p. 379, footnote 11.

  65. 65.

    Reeb 1998.

  66. 66.

    Berne 2002, at p. XX.

  67. 67.

    See generally, Kolev 2008, pp. 57 and 60–62.

  68. 68.

    Beloff 2005, at p. 49.

  69. 69.

    Edited by Ian S. Blackshaw, Robert C.R. Siekmann and Janwillem Soek.

  70. 70.

    pp. 420–440.

  71. 71.

    At p. 421.

  72. 72.

    Foster 2003, at p. 4.

  73. 73.

    CAS 98/200, para 156. Explicit reference to the lex ludica in this CAS award is made in CAS 29009/A/1768, Hansen v. FEI, which by the way was presided by Beloff.

  74. 74.

    See, Commission decision of 25 June 2002 in Case 37806, ENIC/UEFA.

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  1. International and European Sports Law, Erasmus University Rotterdam, Erasmus School of Law, Burg. Oudlann 50, 3062 PA, Rotterdam, The Netherlands

    R. C. R. Siekmann

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Siekmann, R.C.R. (2012). What is Sports Law? Lex Sportiva and Lex Ludica: A Reassessment of Content and Terminology. In: Introduction to International and European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-852-1_1

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