2011/1-2

           

Mega Sporting Events

Bidding

Unilateral Extension
Option

Comparative Sports Law

Anti-Doping Law

 Sports Betting
     Asian CAS
        Basketball
               
Football Hooliganism

 
Lisbon Treaty and Sport

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EU Non-Nationals
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 CONTENTS
EDITORIAL

ARTICLES

International Sporting Event Bid Processes, and A Study on Legal Protection of Olympic
How They Can be Improved Intellectual Property
Ryan Gauthier Gao Fei

Sports Governing Bodies and Leveraging of Memorandum of Understanding for

Power: What is The Appropriate Governance Cooperation between the Asser International
Model? Sports Law Centre and the Law School of
Adam Pendlebury Wuhan University

The Unilateral Extension Option Through the You Cannot Reject the Olympic Medal? -
Eyes of FIFA DRC and CAS Commentary on the CAS Abrahamian Case
Frans de Weger and Thijs Kroese Shuli Guo and Xiong Yingzi

Transnational Sports Law Prosecuting Sports Violence: The Indonesian

Franck Latty Football Case
Topo Santoso
Is There Such A Thing as EU Sports Law?
Stephen Weatherill The Application of the European Fundamental
Freedoms in Non-Professional Sports
Towards a Typology of (International) Henning Wegmann
Comparative Sports Law (Research)
Robert C.R. Siekmann and Janwillem Soek Protecting International Sports Events: The
Importance and Creative Use of Intellectual
Basketball Arbitral Tribunal – an Innovative Property Rights
System for Resolving Disputes in Sport (only in Ian Blackshaw
Sport?)
Dirk-Reiner Martens Anti-Doping Law in Sport
Robert C.R. Siekmann
Intellectual Property Rights in Basketball
Lucio Colantuoni and Cristiano Novazio Sports Betting in the Jurisprudence of the
European Court of Justice
Ancient Chinese Football Robert C.R. Siekmann
Bram Cohen

PAPERS

Reorganization of the Sports Betting Market in The FIFA “6+5” Quota System: Legal
Germany Admissibility under the Terms of the Treaty of
Martin Nolte Lisbon
Andreas Lange

OPINION

The Autonomy Case in Brazil The Sale of Liverpool Football Club;

Maurício Ferrão Pereira Borges Controversial or Commonplace?
Max Eppel

2011/1-2 1
 OPINION REPORTS

• Wayne Rooney Stays at Manchester United - Lisbon Treaty and EU Sports Policy
But at a Cost!
• Kick Corruption Out of Football! Equal Treatment of Non-Nationals in Individual
• Tour De France: Latest Doping Investigations Sports Competitions
• Formula One Removes Ban On ‘Team Orders’
Rule? Implementation of the WADA Code in the
• FIFA To Set Up Anti-Corruption Body European Union
• English Football under Government Spotlight
• Half-Time Score in EU TV Sports Rights Case BOOK REVIEWS
• Landmark ECJ Rulings in FIFA & UEFA ‘Crown
Jewels’ Cases
• Modern Sports Law by Jack Anderson
• The Contador Doping Saga Continues: CAS Is
• Sport and the Law: A Concise Guide by Laura
Now Involved!
Donnellan
• RFU Wins Court Order in Ticket Touting Case
Ian Blackshaw
Ian Blackshaw

DOCUMENTS
“Season of Birth Bias” or “The Relative Age
Effect”: Systemic Discrimination in European
Youth Football” Constitution of the Asian Council of Arbitration
Steve Lawrence for Sports and Sports Arbitration Tribunal of
Asia

London Seminar 12-13 April 2010: The Legal and

Tax Treatment of Sports Image Rights
Agreements

❖
EDITORIAL

FIFA Signs Historic Agreement with Interpol

As part of FIFA’s plans to clean up the ‘beautiful game’, and, no doubt, League and some Europa Cup games, as well as some lower league semi-
with an eye on his re-election at the FIFA Congress at the beginning of pro matches. So, the problem is quite widespread and undermines the
June, which is being opposed, Sepp Blatter, announced on 9 May, 2011 integrity of football. It is also prevalent in other sports, as the recent
the signature of an historic Cooperation Agreement with INTERPOL, spot-fixing in test cricket has shown. But, as far as football is concerned,
the international policing organisation with members in 188 countries the match-fixing scandal involving several leading Italian clubs in 2006,
in the world. is perhaps the one that brought the problem to prominence.
This Agreement is designed to rid football, the world’s favourite and But, whatever one may think about Blatter - and he certainly has his
most lucrative sport, of illegal and irregular betting and match-fixing, supporters as well as his opponents - he never fails to surprise by pulling
and involves a ten-year programme with INTERPOL and a grant of rabbits out of the hat! The latest example of which is this major initia-
several millions of Euros a year - the first two years of €4m each year tive with INTERPOL! A move, it must be added, that is well needed,
and €1.5m for each of the remaining eight years. This grant - the biggest and one, incidentally, that has been foreseen in the forthcoming latest
ever single one made by a private institution to INTERPOL - will sup- Book in the Asser International Sports Law Series on ‘Sports Betting:
port the setting up of a dedicated FIFA Anti-Corruption Training Wing Law and Policy’ of which the author of this Editorial is one of the
within the INTERPOL Global Complex in Singapore. According to Contributors and Editors.
INTERPOL, illegal gambling in football will account for hundreds of
millions of US$ in Asia alone this year! So, it is a big problem. As Blatter Ian Blackshaw
has said: “the threat of match-fixing in sport is a major one, and we are
committed to doing everything in our power to tackle this threat. Match-
fixing shakes the very foundations of sport, namely fair play, respect and dis-
cipline. That’s why FIFA employs a zero-tolerance policy.” Fighting words
indeed!

This development comes against the following background:

In Germany, for example, there are apparently 300 suspicious games
currently under scrutiny; and illegal betting and match-fixing affects all
levels of the game, including international friendlies, a Champions

2 2011/1-2
Transnational Sports Law
by Franck Latty*

Certain legal expressions are in everyday use in doctrine or practice, as athletes, anti-doping rules, in some cases the status and contracts of
if their meaning was obvious, despite the conceptual vagueness that con- athletes, etc.). Taking the view that these standards cannot claim to
tinues to surround them. The notion of “Transnational Sports Law” have the quality of legal rules amounts to having a highly restrictive
undoubtedly falls into this category. With this contribution, I aim to conception of the law, which is well out of step with the realities on
demonstrate that, regardless of the meaning given to the expression, the the ground. The “Sports and the Law” theory finds its roots in the
addition of the adjective “transnational” has conceptual virtues that pro- state positivism that necessarily links the law to the state, the sole enti-
vide sports law with a pertinent analytical framework. ty capable of imposing compliance through physical constraint4.
Yet it is still necessary to acknowledge the existence of “sports law”, However, pluralist theories have shown that neither power nor law are
something which is rejected by a certain school of thought. For E. in essence linked to the state, but that they manifest themselves in any
Grayson, for example organised social group, whether it be pre-, infra-, supra- or para-state5.
“No subject exists which jurisprudentially can be called sports law. From this perspective, it becomes clear that sporting bodies do indeed
As a soundbite headline, shorthand description, it has no juridical produce legal rules - a fact which in no way prejudices their degree of
foundation; for common law and equity create no concept of law autonomy with regard to the law emanating from the states.
exclusively relating to sport. Each area of law applicable to sport does
not differ from how it is found in any social or jurisprudential cate- Having confirmed the existence of sports law, resulting both from pub-
gory […]”1 lic (state or even, by extension, inter-state) and private sources (the rules
of sporting bodies), it is now necessary to analyse what the adjective
Rejecting the idea of sports law, these authors entitle their discipline “transnational” adds to or takes away from the concept.
“Sport and the law”, which consists of analysing the manner in which An a contrario approach would permit the exclusion of sports law of
the law - namely state law (e.g. employment law, contract law, criminal national scope from the notion. Once the idea of transnationality involves
law, etc.) - applies to the sporting domain. At best, certain of these going beyond a defined national territory, both the state rules applica-
authors recognise that the particularities of sport give rise to an inde- ble to sport and the rules of the national sporting bodies have to be set
pendent offshoot of state law2. This restrictive doctrinal approach can aside. It should, however, be noted that the rules of the national feder-
be criticised for at least two reasons: ations are often merely a transposition of the rules laid down by the
i) First of all, because it can only be relevant for certain countries - gen- international federations.
erally through common law - which have not adopted legislation in Transnational Sports Law can also be distinguished from International
the sporting domain. However, other states - often by tradition of Sports Law6, as the concept of international law (understood as inter-
civil law - have legislated on the subject. This is very much the case national public law) originally refers to the law applicable to inter-state
for France, which since the second half of the 20th century, has devel- relations. With the diversification of international society, internation-
oped an increasingly dense body of legislation that is now grouped al law these days involves more varied subjects (intergovernmental organ-
together in a sporting code3 covering numerous aspects of sporting isations and private bodies, to a certain extent), of which it governs the
activities. The code essentially allocates responsibilities in terms of status or relations. International law still only intervenes infrequently
the organisation of sporting activities between government, region- in the field of sport, so that, logically, the sporting bodies are not char-
al authorities, associations, companies, federations, the National acterised as a subject of international law - with the possible exception
Olympic Committee, etc., specifying the rights and obligations of of the International Olympic Committee, which has succeeded in
the different parties involved (athletes, trainers), as well as organis- obtaining quite unique status, not dissimilar to that of the International
ing the anti-doping effort; it also regulates the practice of sporting Committee of the Red Cross7.
activities (sports facilities, insurance, hygiene and safety, etc.) and With the a contrario approach proving insufficient to precisely define
includes other measures relating to the funding of sport. Through a the concept of Transnational Sports Law, a positive definition becomes
system of public service delegation, French law even operates a form inevitable. If we depart the sporting domain for a moment, it appears
of nationalisation of the national federations: although they retain that the notion of transnational law, very common in legal literature
association status under private law, their decisions are regarded as and even in practice, is characterised by an ambiguity which, far from
administrative decisions and come under the competence of the constituting an obstacle to its application to the field of sport, on the
administrative judge. Undoubtedly, therefore, there exists French contrary helps to highlight the diversity of the legal phenomenon that
sports law of state origin which even attracts to it the sporting stan- is sports law.
dards of the federations, thus invalidating the theory of “Sports and Three meanings can be drawn from this: a wide meaning, based on
the Law”. the theory of Jessup, covering any rule with external scope (I); a hybrid
ii) Secondly, the “Sports and the Law” theory is state-centred, ignoring meaning, characterising the legal relations between public and private
the law produced by the sporting bodies, whether they are interna- entities (II); a strictly private meaning, referring to the sectoral rules
tional (the international federations and the International Olympic produced by self-regulated private global parties (III). While the last of
Committee, in particular) or national in scope. However, it is these these is the most meaningful from a conceptual point of view, the fact
bodies which, even before the states, organise sporting competition remains that the first two help to illustrate the varied dimensions of
in its manifold aspects (rules of play, technical rules, qualification of sports law.

* Professor of public law - University of 1 E. Grayson, Sport and the Law, 2nd ed., 2 T. Davis, “What is Sports Law”, 6 Contra, see J. Nafziger, International
Auvergne (France). This article is taken London, Butterworths, 1994, p. xxxvii. Marquette Sports Law Review, vol. 11, Sports Law, 2nd Ed., Transnational Publ.
from a communication presented on 22 See also the presentation of the debate 2000-2001, pp. 211 et seq. Dobbs Ferry, N.Y., 2004, 376 p., for
September 2010 at the International con- given by authors in favour of sports law: 3 www.legifrance.gouv.fr whom the conception of International
ference on lex sportiva at the Universitas S. Gardiner et alii, Sports Law, Cavendish, 4 See the writings of Kant, Hegel, Carré de Sports Law is close to that explained in
Pelita Harapan in Jakarta. The author London-Sydney, 1998, pp. 71 and 72; R. Malberg, Kelsen etc. the first part of this paper.
would like to thank the conference organ- Parrish, Sports Law and Policy in the 5 See in particular Santi Romano, L’ordre 7 F. Latty, Le Comité international
isers for their invitation and especially the European Union, Manchester, Manchester juridique, 2nd edition, Paris, Dalloz, olympique et le droit international,
Lex Sportiva Institute and its director University Press, 2003, pp. 6 et seq. 2002, particularly p. 81; M. Virally, La CEDIN, Perspectives internationales n°
Hinca IP Pandjaitan. pensée juridique, Paris, LGDJ, 1960, chap- 21, Paris, Montchrestien, 2001, xix +
ter XV on the pluralism of legal orders. 235 p.

34 2011/1-2
I. The wide conception: Jessup’s transnational law judge at a state court - which is tending to become rarer due to the more
1. The spread of the expression “transnational law” within legal circles widespread recourse to arbitration -, they would give precedence to their
owes a great deal to the book of the same name published in 1956 by the national law and take the applicable international law into account only
renowned American lawyer Philip Jessup, who went on to become a if their Constitution recognised its value11, while the laws of another
judge in the International Court of Justice during the 1960s. Mindful state would be implemented if the mechanisms of private internation-
of going beyond the traditional distinctions between internal law and al law referred to it12. Similarly, they would apply the laws of interna-
international law and between public and private law, Jessup proposes tional sporting bodies if so authorised by national law, via an explicit
the grouping together under a single description of all rules with an reference13 or by means of contractual mechanisms. However, under no
extra-national dimension: circumstances would a state judge be authorised to draw on a patch-
“I shall use, instead of “international law” the term “transnational work of transnational rules potentially concerning the situation in dis-
law” to include all law which regulates actions or events that transcend pute. It is for this reason that the French Conseil d’Etat traditionally con-
national frontiers. Both public and private international law are includ- siders the rules of the international federations to be devoid of legal
ed, as are other rules which do not wholly fit into such standard cate- effect in French law unless they have been transposed by the national
gories.”8 federations14.
Apart from the rules of public international law and the national rules At the level of the Court of Arbitration for Sport, this is more of a
of private international law, the concept also encompasses internal law grey area, as the CAS’s arbitration rules leave its arbitrators considerable
with international scope - public and private (civil or criminal) - and room for manoeuvre. Within the framework of the appeals process, in
the principles applied to legal relations forged directly between private addition to the “applicable regulations and the rules of law chosen by
bodies. Defined in this way, transnational law embraces all legal rules, the parties” and, secondarily to “the law of the country in which the fed-
independently of their origin, that exceed the framework of a single eration, association or sports-related body which has issued the chal-
national legal order. Through this emphasis of the existence of standards lenged decision is domiciled”, the CAS may apply “the rules of law, the
that were little known at the time, such as the law of international organ- application of which the Panel deems appropriate”15. In practice, it can
isations or the general principles resulting from arbitration case law, be observed that the CAS’s divisions sometimes have differing interpre-
Jessup raised the issue of the traditional boundaries of international law, tations of these provisions on the applicable law. While all divisions in
which amounts to a success still palpable today in terms of the theory the first instance apply the rules of the sporting bodies concerned, some
of transnational law. make abundant reference to state law, sometimes making the sporting
Applied to sports law, Jessup’s Transnational Law would make it pos- rules secondary to this16, while others spontaneously free the sporting
sible to group all standards into a single set “which regulates actions or standards from any national legal order17. Moreover, at the level of the
events that transcend national frontiers” in the area of sport. The private relevant ad hoc division at the Olympic Games, “The Panel shall rule
rules of the international federations and the International Olympic on the dispute pursuant to the Olympic Charter, the applicable regu-
Committee would thus sit alongside the few rules stemming from the lations, general principles of law and the rules of law, the application of
international legal order, such as the 2005 UNESCO Convention against which it deems appropriate”18. The divisions of the CAS therefore enjoy
Doping in Sport, the conventions of the Council of Europe against dop- a degree of freedom of choice in terms of the rules to be applied, which
ing and violence in stadiums, and the texts imposing a sporting embar- appears to correspond to Jessup’s recommendations. The theory of
go on certain nations (United Nations Convention against Apartheid Transnational Law is therefore implemented, at least to a certain extent,
in Sport of 10 December 1985, Resolution 757 (1992) of the Security at the level of the CAS, not solely in its descriptive aspects (diversity of
Council imposing an embargo on Yugoslavia). To this list can be added the rules applicable to transnational sporting relations) but also in its
the numerous soft law texts adopted by the United Nations General operational aspects (application of the most relevant rules by the judge).
Assembly, UNESCO and other international bodies9. Finally, the state
rules likely to be applied to transnational sporting relations, for instance II. The hybrid conception: transnational law as the law governing
the Swiss law on associations - the IOC and most international federa- mixed relations
tions have their headquarters in Switzerland - would also come under The adjective “transnational” is commonly used in a specific sense to
Transnational Sports Law. qualify relations between a state and a foreign private entity, especially
2. Nonetheless, Jessup’s theory is not intended to be merely descrip- in the context of investment law. The practice of state contracts (a petrol
tive, as his proposal consists of suggesting that any judge (national or concession contract, for instance) gives rise to “hybrid”19 or “asymmet-
international, public or private) faced with a dispute transcending state rical”20 relations between the state and a foreign private company. The
borders may choose the rule of transnational law which they regard as term “transnational” takes into account the atypical nature of these legal
being most commensurate with reason and justice for the resolution of relations in which contractual equality and state sovereignty are opposed,
the dispute10. From this perspective, Jessup’s theory has not met with without in many cases being wholly reduced to either national or inter-
the anticipated success, insofar as each judge is the organ of an estab- national law. These contracts generally include an arbitration clause pro-
lished legal order that does not leave them the latitude to import exter- viding for a tribunal to rule on disputes between the parties. This is com-
nal standards at will. But what about specifically in relation to sport? monly referred to as “transnational arbitration” or “mixed arbitration”.
There is no doubt that if a sport-related dispute is being heard by a Much has been written about the law applicable to disputes of this type

8 Ph. C. Jessup, Transnational Law, New eral occasions since 1984) thus envisaged 15 Art. R58 of the Code of Sports-related tional competitions (FIFA World Cup,
Haven, Yale U.P., 1956, p. 2. that the sports federations were responsi- Arbitration. “In the latter case, the Panel UEFA European Championship,
9 On international sports law, see infra ble for ensuring “compliance with the shall give reasons for its decision”. Commonwealth Games) envisage similar
Andreas Wax: Public international Sports technical and ethical rules of their disci- 16 See for example C.A.S. 94/126, N. / F.E.I., provisions (see for example art. 18 of the
Law - A “Forgotten”Discipline?” and F. plines laid down by the international fed- 9 December 1998, § 3; C.A.S. 98/208, N., arbitration rules for the final phase of the
Latty, La lex sportiva - Recherche sur le erations, the International Olympic J., Y., W. / F.I.N.A., 22 December 1998, § 9. FIFA World Cup 2010).
droit transnational, Leiden/Boston, Committee and the French National 17 See for example C.A.S. 92/80, B. / 19 Z. Douglas, “The Hybrid Foundations of
Martinus Nijhoff Publishers, 2007, pp. Olympic and Sports Committee”. F.I.B.A., 25 March 1993, § 10; C.A.S. Investment Treaty Arbitration”, BYIL,
652 et seq. 14 See for example the Conseil d’Etat’s advi- 2003/A/507, Strahija / F.I.N.A., 9 2003, p. 153.
10 Seer Ph. C. Jessup, op. cit., pp. 106 et seq. sory opinion dated 20 November 2003, in February 2004, § 6.1. See F. Latty, La lex 20 Th. Wälde, “The Specific Nature of
11 In France, article 55 of the Constitution Revue juridique et économique du sport, sportiva…, op. cit., pp. 547 et seq. (dis- Investment Arbitration”, in Ph. Kahn /
envisages that international treaties have a no. 72, September 2004, p. 65: “The tinction made between the “statist” Th. Wälde, New aspects of International
value superior to the law. international sports federations are sub- approach and the “transnationalist” Investment Law, Hague Academy of
12 See E. Loquin, “Sport et droit internation- ject to the legislation of the state where approach within CAS case law). International Law, Leiden/Boston,
al privé”, in Lamy Droit du sport, nos 186- each of them has its headquarters and the 18 Art. 17 of the Arbitration Rules for the Martinus Nijhoff Publishers, 2007, p. 94.
95. regulations which they lay down do not Olympic Games (Vancouver 2010). The
13 The French law of 1975 (amended on sev- apply within France’s internal law.” arbitration rules for other major interna-

2011/1-2 35
by transnational tribunals: law of the contracting state? International eventually resolved via discreet “Olympic diplomacy”27. Similarly, in
public law? Other rules? In view of certain decisions reached in disputes the build-up to the 1976 Montreal Games, the Canadian authorities
of this type where general principles belonging to no identified legal refused to let Taiwanese athletes enter their territory, as their coun-
order have been applied21, some authors have posited the idea of transna- try was not recognised by Canada28.
tional law specifically tailored to these mixed relations22. Since the 1980s, Consequently, the international sporting bodies might seek to
however, the debate has lost its momentum and interest due to the expo- secure their legal relationship with the host state by entering into a
nential development of Bilateral Investment Treaties (BITs) between “state contract” similar to those which foreign private companies
states. With the majority of disputes relating to investments now being make with the destination states for their investments. Subject to
raised on the basis of one of these BITs (even in the absence of contrac- international law (so as to avoid national law, which the contracting
tual relations between the investor and the state), the transnational courts state has the power to amend to its advantage), such agreements
of arbitration are almost always called upon to settle disputes by apply- strengthen the position of the private body, which is placed on equal
ing international (public) law23. footing with the sovereign state. The presence of arbitration clauses
How does this hybrid conception of transnationality relate to sports whereby any dispute is submitted to transnational arbitration also
law? possesses certain dissuasive virtues which might suffice to prevent dis-
1. In the first place, Transnational Sports Law understood in this way putes between the body and the state hosting the event. A proposal
could offer a characterisation of the standards adopted by the World of this type was formulated during the 1980s by the authors of a study
Anti-Doping Agency (WADA). This body at the origin of the world commissioned by the IOC on the improvement of its legal status29,
anti-doping code and associated international standards is formed but it failed to get past the Olympic drawing-board stage and subse-
jointly by representatives of the public authorities and representa- quent changes to international investment law mean that its revival
tives of the Olympic movement24. Formally at least, the standards would not be worthwhile.
which it produces are acts of private law, since the agency has foun- 3. Lastly, it has to be acknowledged that the development of Bilateral
dation status under Swiss law despite its premises being located in Investment Treaties is likely to offer protection to international sport-
Montreal. However, it is not out of the question to consider that the ing bodies whose international events must be held on the territory
agency’s mixed composition in a way reflects upon the law which it of sovereign states. These treaties generally contain provisions where-
produces - transnational law in the hybrid sense of the term. The by the state parties guarantee the investor parties equal, fair and non-
world anti-doping code and the international standards do not, how- discriminatory treatment (national treatment and/or treatment of
ever, possess any intrinsic legal force. They have an effect only inso- the most favoured nation), together with full and complete protec-
far as the sporting bodies transpose their content into their own anti- tion and security. Some contain a clause concerning respect of the
doping regulations, while the states have adopted the UNESCO con- commitments made vis-à-vis investors, while the freedom of pay-
vention against doping, the main objective of which is to recognise ments and money transfers relating to the investments is guaranteed.
the Code. But it is precisely because the WADA’s global anti-doping These treaties again offer the investors direct lines of recourse against
programme is the product of co-regulation within the agency that it the state, usually before the International Center for the Settlement
can obtain the consent of both the sporting bodies and the public of Investment Disputes (ICSID) or according to the arbitration reg-
authorities. ulations of the UNCITRAL (United Nations Commission on
2. Secondly, and de lege ferenda, the practice of State Contracts referred International Trade Law).
to above could effectively be found to apply at major international
competitions (the Olympic Games or the FIFA World Cup, for exam- It is also worth noting that Brazil, which is due to host the FIFA World
ple). The legal framework developed for the staging of these events Cup in 2014 and the Rio Olympic Games in 2016, concluded a BIT in
does not guarantee full legal security to the sporting institutions, 1994 with Switzerland, the “home country” of both the FIFA and the
which are only contractually bound to the host city (for the Olympic IOC30. Due to Brazil’s failure to ratify it, the treaty has not entered into
Games) or to the chosen federation (in the case of the FIFA World force, but there is nothing to prevent this case being used as a basis for
Cup). However, the holding of such events on a country’s soil involves reasoning. If a state, through its behaviour, was to present an obstacle
commitments on its part, if only to provide access to its national soil to the successful staging of the World Cup or the Olympic Games, or
to athletes from all over the world. The states supply plenty of high- more prosaically, if it failed to fulfil the guarantees provided in terms of
ly precise guarantees, appended to the bid and then to the organisa- freedom of transfer of capital, for example, could the FIFA or the IOC
tion contract25, but in the event of a state defaulting, the sporting not invoke its international liability on the basis of a BIT in force? The
body risks only being able to count on its own resources to remind crucial and novel legal issue would be to determine whether the sport-
the state of its commitments. In practice, certain “hiccups” crop up ing competition could be regarded as an investment, as transnational
now and then, such as the attempt by the Chinese authorities, on the case law fluctuates on this definition31. After all, it has to be acknowl-
eve of the opening of the Beijing Games, to limit accredited journal- edged that the construction of the infrastructure required to stage the
ists’ access to websites deemed by it to be “subversive”26, a problem Olympic Games or the World Cup involves investments made not by

21 Most notably the sentence National 23 See our chronicle “Arbitrage transnational mits the identification of the nature of plit sa position” (Internet: under pressure,
Iranian Oil Company c. Sapphire, 15 et droit international général”, published FIFA’s requirements in this area. They Beijing softens its stance), Le Monde, 3-4
March 1963, ILR, vol. 35, p. 136. in the Annuaire français de droit interna- concern access to the state’s territory for August 2008.
22 J.-F. Lalive, “Un récent arbitrage suisse entre tional from 2008. the competitors and persons affiliated to 28 See the report written by J.-L. Chappelet
un organisme d’Etat et une société privée 24 See article 6 of the WADA Statutes and R. FIFA, security during the event (and the e.a. within the framework of the Enlarged
étrangère “ (A recent Swiss arbitration case Pound, “The World Anti-Doping Agency: exclusion of any liability of FIFA in this Partial Agreement on Sport (Council of
between a state body and a foreign private an Experiment in International Law”, regard), currency exchange, FIFA’s com- Europe), The Autonomy of Sport in
company), Ann. suisse de droit international, International Sports Law Review, July mercial rights, the use of national Europe, Strasbourg, 1 December 2008,
1962, pp. 273-302, which talks about an 2002, no. 2, pp. 53-59. anthems and flags, telecommunications EPAS (2008), pp. 14-15.
“autonomous transnational law for state 25 Concerning the requirements of the CIO and the importing of the equipment 29 B. Simma / Ch. Vedder, Suggestions for
contracts”. V. also J.-F. Lalive, “Contracts on the subject, see F. Latty, La lex sporti- required for the event’s organisation. Improving the Legal Position of the IOC as
Between a State or a State Agency and a va…, op. cit., pp. 584 et seq. The state These guarantees are also required to Regards to its Relationship with States and
Foreign Company”, ICLQ, 1964, p. 1008; guarantees demanded by FIFA are not include total tax exemption for FIFA and Intergovernmental Bodies, 1985, study not
Ch. Leben, “La théorie du contrat d’Etat et included in any public FIFA regulation. its affiliates. published but referred to in F. Latty, La
l’évolution du droit international des However, the reading of the bid evalua- 26 Essentially websites of human rights lex sportiva…, op. cit, pp. 598-599. V. also
investissements”, Collected Courses of the tion reports for the 2018 and 2022 World defence bodies or those in favour of a Free the debate on the sedentarisation of the
Hague Academy of International Law, 2003, Cups, which include a paragraph headed Tibet… OG, launched at the time of the boycotts,
t. 302, pp. 316 et seq. “Legal and Government Guarantees”, per- 27 “Internet: sous la pression, Pékin assou- when several proposals were formulated.

36 2011/1-2
the IOC or the FIFA but by local partners not protected by the BIT. from the states and beyond their borders, and intended to govern
Having said that, it is also noteworthy that the Switzerland/Brazil BIT activities within the community concerned. Several transnational
includes international property rights and expertise in the definition of legal orders can be said to exist: commercial, religious… and sport-
the investment32, which would make it possible to include the interna- ing.
tional competition within the scope of the treaty. Once past the a pri- The law produced by the international sporting bodies (Inter-
ori surmountable obstacle of the existence of an investment, it would national Olympic Committee, international federations, continen-
remain to be verified that the state concerned has indeed breached its tal federations, etc.) in effect constitutes a legal phenomenon simi-
international obligations resulting from the treaty. At the end of the lar to the lex mercatoria or to religious laws, insofar as these bodies -
process, the system would enable the body to obtain recompense for which are private entities - are at the origin of globally or at least extra-
the damage incurred33, although it is doubtful that the CIO or FIFA nationally-applied rules, designed to govern the system of sporting
would wish to “jurisdictionalise” their generally peaceful relations with competition. Thus the neologism “lex sportiva” is being increasingly
the states. So the corrective or even simply dissuasive virtues of this used as a direct reference to the lex mercatoria, either to indicate the
mechanism, which is highly (overly?) favourable to investors, should set of transnational sporting rules40, or in a more limited sense, refer-
still not be neglected. ring only to the case law of the Court of Arbitration for Sport41. Like
the arbitrators of international commerce, the CAS has formulated
III. The private conception: transnational law as a form of global a whole series of legal principles, either inspired directly by internal
sectoral self-regulation laws or deduced from the necessities of the sporting competition42.
We will now deal with the final manner in which Transnational Sports Applying to the Olympic Movement as a whole, these principles com-
Law can be conceived, and in terms of the overall analysis of sports law, bine with the Olympic Charter and the World Anti-Doping Code
it is the most useful of the three. to ensure the unity of the transnational sporting legal order.
1. Once again, it is in the economic sphere that this specific conception Considerably more institutionalised, through the Olympic
of transnational law has been developed, to refer to the self-regula- Movement, than the lex mercatoria, the lex sportiva constitutes a par-
tion of international economic players. Observation of the contrac- ticularly clear manifestation of “transnational law”.
tual practices of private operators from international commerce and 2. The lex mercatoria theory’s sole aim is not to describe the “internal
analysis of commercial arbitration case law in this field have led cer- coherence”43 specific to the community of economic operators. It
tain authors to propose the theory of a new lex mercatoria34 or New encompasses an “external” dimension which requires the verification
Law Merchant35 - in reference to the lex mercatoria of the Middle of its “survival” when it comes up against state or inter-state stan-
Ages, developed by market traders as a remedy for the legal insecu- dards. This question of the degree of autonomy of transnational stan-
rity arising from the multiplicity of feudal laws. The repetition of dards is precisely that which is endlessly posed on the subject of sport-
standard contracts for commercial uses and the formulation by the ing standards. In this regard, the theory of transnational law offers a
arbitrators of general principles of law are supplying this new lex mer- framework that makes it possible to understand this question in terms
catoria which, for a part of the doctrine, could even be used in rela- of relations between legal orders, or “relations between systems”, as
tion to state contracts36. Taking as a basis the institutionalist theory Kelsen would say44. Santi Romano, who has defended a pluralist con-
of the Italian lawyer Santi Romano37, the existence of a “lex merca- ception of the law distinct from Kelsen’s monism, has very specifical-
toria legal order” concurrent with the legal orders of the states has ly insisted on the different relations likely to be forged between legal
even been propounded, an idea which has been written about exten- orders: a relationship in which one order is the presupposition of
sively38. another; a relationship in which several orders which are independ-
The debate on the lex mercatoria, the existence of which is still ent of each other depend on another; relevance granted unilaterally
debated39, has had the merit of promoting the idea that legal com- by one order to another from which it is independent; a relation of
munities depending on transnational solidarity are likely to self-reg- succession between several orders45.
ulate outside the framework of state law. Moreover, the phenome- Due to the difficulty of verifying, in a few lines, the degree of auton-
non is not limited to the economic field, as an examination of the omy of the lex sportiva as regards legal orders likely to restrict its effec-
religious domain shows. The Catholic Church, the most institution- tiveness46, only a few main “trends” will be mentioned, concerning
alised of the three main monotheist religions, is a grouping of a the relationship between the transnational sporting legal order and
transnational community of followers subject to the canon law pro- the national, international and European Union legal orders.
duced by the Church. Like the lex mercatoria, canon law is therefore Insofar as the international sporting bodies have internal legal
a manifestation of the legal phenomenon characterised as “transna- statutes, they are by nature subject to the legal order of their head-
tional law”: a law produced by private parties, without intervention quarters. This being so, the liberalism of Western democracies per-

Some of them involved the conclusion of ments: a guide to the key issues, New York, Toronto, 1961, pp. 129 et seq.; “The New 1987, pp. 149-183; V. L. D. Wilkinson,
contracts between the IOC and the states, Oxford UP, pp. 243-269. Sources of the Law of International “The New Lex Mercatoria: Reality or
covering the status of the permanent 32 Art. 1er, § 2, of the Switzerland-Brazil BIT Trade”, International Social Science Academic Fantasy?”, J. Int’l Arb., June
Olympic site and governed by interna- of 1994. Journal, Vol. XV, p. 2. 1995, vol. 12, no. 2, pp. 103-117.
tional law (see F. C. Rich, “The Legal 33 These issues will be developed in our 36 See supra II. 40 See for example E. Loquin, “Sport et droit
Regime for a Permanent Olympic Site”, study “Sporting competition and interna- 37 Santi Romano, L’ordre juridique, op. cit. international privé”, op. cit., no. 186-90.
New York University Journal of tional investment law. Some legal theories 38 See Ph. Kahn, “Droit international 41 See for example J. A. Nafziger, “Lex
International Law and Politics, vol. 15, on the approach to the 2014 World Cup économique, droit international du Sportiva”, I.S.L.J., 2004, pp. 3-8.
1982, pp. 1-53). and the 2016 Rio Games”, to be published développement, lex mercatoria: concept 42 See F. Latty, La lex sportiva…, op. cit., pp.
30 Agreement between the Swiss in the Brazilian Yearbook of International juridique unique ou pluralité des ordres 301 et seq.
Confederation and the Federative Law, 2011. juridiques”, in Etudes offertes à B. 43 Ph. Kahn, “Droit international
Republic of Brazil concerning the 34 B. Goldman, “Frontières du droit et lex Goldman, Paris, Litec, 1982, pp. 97-107; économique, … “, op. cit., p. 100.
Reciprocal Promotion and Protection of mercatoria”, Archives de philosophie du E. Loquin, “L’application des règles ana- 44 H. Kelsen, “Les rapports de système entre
Investments, Brasilia, 11 November 1994. droit, 1964, vol. IX, pp. 177-192; “The tionales dans l’arbitrage commercial inter- le droit interne et le droit international
31 See M. Sornarajah, “The Definition of Applicable Law: General Principles of national”, in L’apport de la jurisprudence public”, Collected Courses of the Hague
Foreign Investment”, in A. H. Qureshi / Law - The Lex Mercatoria”, in J. D. M. arbitrale, publication C.C.I. no. 440/1, Academy of International Law, 1926-IV,
Xuan Gao (Ed.), International Economic Lew (Ed.), Contemporary Problems in 1986, pp. 67-122. vol. 14, pp. 227 et seq.
Law: Critical Concepts in Law, New York, International Arbitration, Dordrecht, 39 See K. Highet, “The Enigma of the Lex 45 S. Romano, L’ordre juridique, op. cit., pp.
Routledge, vol. 4, 2011, pp. 153-163; K. Martinus Nijhoff Publishers, 1987, pp. Mercatoria”, Tul. L.R., 1989, pp. 613-628; 107 et seq.
Yannaca-Small, “Definition of 113-125. M. Mustill, “The New Lex Mercatoria: 46 For a more in-depth examination of this
“Investment”: an Open-ended Search for 35 C. Schmitthoff, “International Business the First Twenty Five Years” in M. Bros, I. question, see F. Latty, La lex sportiva…,
a Balanced Approach”, in Arbitration Law”: A New Law Merchant”, Current Browlie (ed.), Liber Amicorum for Lord op. cit., pp. 415 et seq.
under international investment agree- Law and Social Problems, University of Wilberforce, Oxford, Clarendon Press,

2011/1-2 37
 mits the self-regulation of the associations as long as they do not come affected as soon as its standards have an economic scope, which is
up against the public order of the states concerned. Even in this last increasingly the case with the commodification and professionaliza-
scenario, as regards the multiplicity of sovereignties, the transnation- tion of sport since the Samaranch era. This is because the integration
al standard deprived of effects on a given territory is likely to contin- of twenty-seven states into a single legal order is permitting the
ue to be applied in the rest of the world. What is more, the increas- transnational standard to be effectively countered. The loss of auton-
ingly widespread recognition of the CAS by sporting bodies is hav- omy is only limited, however, due to the recognition of sport’s par-
ing the mechanical effect of dispensing with the state judge and often ticularities by European Union law47.
with the application of the states’ laws. The recognition by the states
of the World Anti-Doping Code through the 2005 UNESCO The concept of Transnational Sports Law therefore offers a suitable the-
Convention against doping is also helping to ensure the application oretical framework for the analysis of the system of relations forged
of the anti-doping standards of the sporting bodies, without the states’ between the sporting legal order and the “public” legal orders - the sole
laws presenting an obstacle any longer. obstacles to the unlimited development of the lex sportiva.
The issue of doping aside, inter-state solidarity is too weak in the
sporting field for the international legal order to be able to channel
or even just effectively rival the lex sportiva. At European Union level, 47 See S. Weatherill: “Fairness, Openness the Lisbon Treaty Change EU Sports
on the other hand, the autonomy of the lex sportiva is likely to be and the Specific Nature of Sport: Does Law?”

Is There Such A Thing As EU

Sports Law?*
by Stephen Weatherill**

1 Introduction initially in the name of promoting free movement of players across bor-
The simple answer to the question posed in the title to this paper is: yes, ders and more recently in the name of competition law. So there was
there is such a thing as EU sports law! already, pre-2009, a type of ‘EU sports law’. The EU did not stipulate
But most simple answers tend to mislead, and the risk is real here too. how sport should be organised: but it did rule out choices that contra-
There is such a thing as EU sports law, in the sense that since the entry vene the Treaty. The paper then reflects on whether the provisions intro-
into force of the Treaty of Lisbon on 1 December 2009 sport has been duced in 2009 are likely to change the shape of this pre-existing EU
explicitly recognised as an area in which the EU has authority to inter- sports law. They might! It then concludes: yes, there is such a thing as
vene. However, this is apt to mislead in two quite different senses. First, EU sports law, and it is of practical importance and intellectual inter-
it obscures the point that December 2009 was certainly a notable mile- est, but it is less systematic and comprehensive than one would expect
stone in the shaping of EU sports law, but that in fact the relevant newly- to find at national level.
introduced Treaty provisions are cautiously drafted and limited in their
scope. They emphatically do not elevate the EU to the position of gen- 2 The Lisbon Treaty
eral ‘sports regulator’ in Europe. So, in short, one should not get too The overall structural effect of the Lisbon reforms is formally to abol-
excited about them. Second, a focus on the Treaty reforms of 2009 ish the three pillar structure crafted for the EU at Maastricht twenty
obscures appreciation that for some 35 years the EU has already exerted years ago. From 1 December 2009 the European Union has been found-
an influence on sports governance in Europe. Beginning with its famous ed on two Treaties which have the same legal value: the Treaty on
Walrave and Koch judgment in 1974 1 the Court of Justice has subject- European Union (TEU) and the Treaty on the Functioning of the
ed sport to the requirements of what was then EC law, and is now EU European Union (TFEU). It is the amendments to what was the EC
law, in so far as it constitutes an economic activity. So sport has been Treaty, and is now the TFEU, which grant sport its newly recognised
brought within the explicit scope of the EU Treaties only as late as formal status within the EU’s legal order.
December 2009 but well in advance of that date sport, though unmen- However, inspection of the detailed content of this competence newly
tioned by the Treaty, was required to comply with its rules in so far as granted by the Member States to the EU is rather deflating, at least for
it constituted an economic activity - which meant, most prominently, those who would advocate a more aggressive role for the EU. The details
that sporting practices fell to be tested against the Treaty prohibitions are found in the rambling Part Three of the TFEU, which is entitled
against practices which are anti-competitive or which obstruct inter- ‘Union Policies and Internal Actions’, specifically in Title XII of Part Three
State trade or which discriminate on the basis of nationality. So an EU Education, Vocational Training, Youth and Sport. Under the post-Lisbon
sports law (of sorts) developed as a result of the steady accretion of deci- re-numbering the relevant Treaty Articles are Articles 165 and 166 TFEU.
sional practice where sporting rules exerted an economic effect and inter- Article 165 stipulates that the Union ‘shall contribute to the promo-
fered with the fulfilment of the EU’s mission. tion of European sporting issues, while taking account of the specific
This paper begins by considering the provisions on sport which were nature of sport, its structures based on voluntary activity and its social
introduced into the EU Treaties by the Lisbon Treaty with effect from and educational function’. And, pursuant to Article 165(2), Union action
December 2009. It then steps backwards to show how, beginning in shall be aimed at ‘developing the European dimension in sport, by pro-
1974, EU law has affected sport by subjecting its practices to control, moting fairness and openness in sporting competitions and coopera-
tion between bodies responsible for sports, and by protecting the phys-
* This article first appeared in the first ** Jacques Delors Professor of European ical and moral integrity of sportsmen and sportswomen, especially the
issue of ‘Global Sports Law and Taxation Law, Somerville College and Faculty of
Reports’ (GSLR 2010/1) and is repro- Law, University of Oxford.
youngest sportsmen and sportswomen.’ Article 165(3) adds that the
duced here with the kind permission of Union and the Member States ‘shall foster cooperation with third coun-
the publishers, NOLOT, BV, and also the 1 Case 36/74 [1974] ECR 1405. tries and the competent international organisations in the field of edu-
author. cation and sport, in particular the Council of Europe’.

38 2011/1-2