DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW 2024-25

Sports Law

GLOBAL AND INTERNATIONAL

SPORTS LAW
Submitted To: Submitted By:

Dr. Bhanu Pratap Singh, Assistant Sneha Singh

Professor (Law) 5TH Year ( Xth semester)

Section : B

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 ACKNOWLEDGEMENT
I would like to express my gratitude towards all those whose help and constant support the
project would not have reached its current facet. Foremost, I would like to thank Dr. Bhanu
Pratap Singh Sir for his kind guidance and for quenching my queries on many doubts and
technicalities which I came up during the making of this project. Dr. Ram Manohar Lohiya
National University for providing me with such an enriching opportunity to work and
research on this topic.

This project would not have seen the light of the day without the constant
direction and guidance of my parents and guardians to whom I owe a lot. I would also like to
use this opportunity to thank my brother in helping me out with the nitty-gritty of formatting.

I would also like to thank all of my friends and seniors who aided me along
the way. I must also extend my gratitude to the e- library services that provided me with
research material and good books to work upon and the distinguished authors, jurists and
journals for providing in the public domain such invaluable information.

Thanking You

All

Sneha Singh

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 TABLE OF CONTENTS

Introduction..................................................................................................................................

The Emerging Sports Law in International Arena……………………………………………...

History Behind Emergence of Sports Law .............................. Error! Bookmark not defined.

The Birth of Sports & Rules of the Games in the Ancient PastError! Bookmark not
defined.

Rise in Popularity & Professionalism of Sport ........................ Error! Bookmark not defined.

Pressing For a Distinct Sports Law..............................................................................................

Sports Law Today – The Concept of Lex Sportiva .....................................................................

Globalization of Sports Law……………………………………………………………………

International Sporting Federations Governing Sports Law…………………………………….

Lex Sportiva v. The Sports Law as Applied by Nation States…………………………………

Issues Arising & Consequential Impact of Sports Law………………………………………...

Legal Issues in Self Governance by ISFs………………………………………………………

The Illegitimate & Corrupted Self - Regulation by ISFs………………………………………

Refusal by Courts of Law to Intervene in Decisions Taken by ISFs…………………………..

Increased Commercialization of Sport…………………………………………………………

Pressure on Developing Countries to Develop Their Own Sports Law………………………..

Diminishing Local Diversity……………………………………………………………………

Conclusion ............................................................................... Error! Bookmark not defined.

Bibliography……………………………………………………………………………………

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 INTRODUCTION
Since time immemorial, we have rules, practices and penalties in sports but the
emergence of a Sports Law was envisaged until only in recent scenario on
account of establishment of International Sporting Federations (ISFs) and the
resultant globalization of sports. Sports Law no longer remains merely as a
blend of various laws but as a distinct domain of law consisting of a unique set
of principles, not found anywhere else. In order to compete internationally, the
countries around the globe join as members of ISFs, subjecting themselves to
their rules and regulations which are under no government‟s jurisdiction. The
ISFs who boast about their international legal personalities are treated as
sovereign states.
Hence, with no remedy coming from litigation, the aggrieved
sportsmen are strictly bound by the decisions rendered by internal authorities of
the ISFs themselves or the external arbitral authorities approved by them. In this
atmosphere, a new concept „Lex Sportiva‟ has materialized, justifying the
autonomous nature and legal immunity enjoyed by ISFs. This self-governance
of Sports by ISF has led to an array of issues like their unidentifiable
jurisdiction, resistance of courts in hearing disputes etc. This essay seeks to
present view on the back drop of Sports Law; the globalization of Sports Law;
two major issues thereof – Legal issues in Self-Governance and Increased
Commercialization resulting into undue pressure on Governments to bring
about their own Sports Legislation, curtailment of local diversity and lastly the
increase in number of lawyers professing Sports Law.

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HISTORY BEHIND EMERGENCE OF
SPORTS LAW
As per this perspective, sport wasn‟t considered to have an identifiable body of
regulations of its own and was rather dependent on other existing laws. For
instance, Professor Edward Grayson, regarded as a pioneer in this field, argued
that “no subject exists which jurisprudentially can be called sports law. As a
sound- bite headline, shorthand description, it has no juridical foundation; for
common law and equity create no concept of law exclusively relating to sport.
Each area of law applicable to sport does not differ from how it is found in any
other social or jurisprudential category…”3. This debate got heated by the
introduction of internationalization of the sports law, where the issue was to
regulate cross-border activity in sports and interpretation of rules established by
the sport governing bodies governing relations among participants. To regulate
sport, various other fields of law like law of torts, criminal law, public law,
administrative law, property law, competition law, company law, human rights
law were used in sporting contexts.4 But there was no acknowledgement as to
the existence of a separate field of law for sports. In fact, it has only been a
decade or two since the term Sports Law has been accepted as a legitimate term.
Sports has been played since the ancient civilization and passed on for
generations. Our ancestors had adopted quite strict rules and methods to
regulate sport which have elements similar to the Sports Law today. If
employing regulatory methods over Sports has been so essential for organizing
sports then a question arises “Whether Sports law is sine qua non for the fair
play of Sports?”. To answer this, we need to look in retrospect since the very
birth of sports and observe if there existed any rules, practices and awards of
punishment for the breach of the rules of Sport.

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2 George SK & Smriti Ganotra, Worldwide: Global Overview Of The Sports Law, STA LAW FIRM (Mar. 21,
2018), http://www.mondaq.com/x/684982/Sport/Global+Overview+of+the+Sports+Law.
3 Edward Grayson, Sport And The Law, (2nd ed. Butterworth 1994).
4 Richard Parrish, Sports Law And The Policy In European Union, 6,(2003).

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The Birth of Sports & Rules of the
Games in the Ancient Past
The inception of Sports can be traced back to Stone Age from the inscriptions
and writings as old as 3000 BC.5 The need for a game to display athletic
prowess, to promote strength, skill and mental discipline and to test whether an
individual is fit for military service resulted into the genesis of various sports.
The early meaning of Sports as remarked by historian Norbert Elias was an
„amusement or recreational‟ activity evolving into a physical contest with
definite regulations. Though the concepts recognized in modern Olympics like
fair play, modern education, brotherhood, peace, equality of opportunity didn‟t
exist in ancient times, there were several practices exercised which displayed
some of the above concepts. These Olympic Officials believed that they judged
the events at Olympia impartially and even took an oath that they would
examine without taking bribes. Yet despite their high reputation, some ancient
writers occasionally criticized them for their partial decisions and for the abuse
of their powers. The Greeks held the ancient Olympic Games since 776 BC. A
local committee of elected officials ran the prestigious Olympic Games. This
underscored the non-global nature of the festival, for no International Olympic
Committee, or even a National Committee, existed as we know them today. The
judges had the power to accept (or exclude) athletes, expel them from the
games, judge the competitions, fine those who infringed the rules, and even flog
competitors who committed fouls, a punishment which the Greeks usually
reserved for slaves.

5 Nigel b. Crowther, SPORT IN ANCIENT TIMES, xv,(2007).

6Id. at 50-59.
7 Gino Gorla, A Decision Of The Rota Fiorentina Of 1780 On Liability For Damages Caused By The “Ball
Game”
49 TULANE LAW REVIEW, 346-349 (1975).

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N.G. Crowther commented how the Officials could be sometimes witless when
once an athlete accidentally tripped over his loin cloth and they decreed that all
runners thereafter should be naked, as loin cloths could be hazardous to their
health.6

In cases of torts, where the playing of sports in a popular place

caused damages to adjacent property, the judges would vindicate sports and
award no damages to the property owner. As it is apparent from the Fabronis
case (1778)7 where the highest courts of Tuscany denied relief to a noble
family, the Fabronis who requested damages from the responsible team for
injury allegedly caused by stray balls that hit their house during the games
played in front of their house since time immemorial. The court ruled that they
had come to the nuisance and any harm suffered was natural and intrinsic to the
games. The legal rationale seems to have been that well-established public
amusements create a legal servitude on neighboring property.8 But, the modern
law would have reached to the opposite results and awarded damages to the
Fabronis on a theory of strict liability. It is apparent from the above few
Olympic cases and Fabronis case that although rules and regulations existed as
an attempt to establish fair play, equality, brotherhood, peace, they failed to do
so because of lack of perception, deeper thought and development in general
principles of law.

Rise in Popularity & Professionalism

of Sport
Sports have occupied a special place in human activity. The inherent durability
of sports as an entertainment category arises from its essential qualities – they
are live, competitive, and predominantly involve team work. With sports like

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football, basketball etc. which broaden its audience, both male and female,
sports have continued to attract millennials as well as an older demographic,
thereby positioning themselves as favorable advertiser targets and laying the
foundation for a fan base that is less susceptible to cyclicality.9
The realization of these inherent qualities of sport led to huge
investments in the development of sports channels and captured the eyes of big
businesses. These corporate entities, who need an effective way to invest their
money in advertising, sponsor the sports events. They are a major reason for
„globalizing‟ the sport. For instance, in professional road cycling or Formula
One motor racing, the teams are named after corporate sponsors. As a result,
sports are big businesses accounting for more than 3 percent of world trade and
1 percent of the combined GNP of the 15-member states of the European Union
(EU).10
Sports has ceased to become merely a means of showing off
strength, skill, talent and earning some shillings or pride by defeating rival
teams and has become a profession of high potential. To organize and regulate
international sports, International Sporting Federations (hereinafter referred as
ISFs) were established, of which any country could voluntarily become a
member. The increasing number of viewers and spectators along with the public
opinion put greater pressure on the sportspersons who represent their nation to
win in the competitive international arena.

8Id. at 350-353.
9 David W. Sussman, Are our Pastimes past their times? How will the media industry disruption and changes to
the legal environment affect the sports industry? 67 SYRACUSE L. REV., 449, 457.
10 Ian Blackshaw, „The Court of Arbitration for Sport: An International Forum for‟ Settling Disputes
Effectively
„Within the Family of Sport‟, 2 ENTERTAINMENT LAW, 61, 61 (2003).

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Pressing for a Distinct Sports Law
The stakes in the world of sport have never been higher and they seem to go on
and on rising. The psychological pressures on sportsmen and women in the
competitive arena grow ever greater, as the gulf between success and failure
tends to widen. These developments give rise to conflict between those who
participate in sport and those who run it. Judges confronted with the task of
adjudicating upon such conflicts in national courts, have to strike a balance
interfering in the autonomous sports bodies and the need to do justice where the
facts demonstrate that the regulatory or disciplinary machinery in sport is
operating unfairly.11 This caused the sports scholars and enthusiasts to question
the historical approach and believe that a growing industry like sports requires a
legal backbone to support its development.12
Professor W. Burlette Carter being one of the many intellectuals
who argued in favor of the development of sports law as a distinct area of law,
supported for transforming sports law from "a course without a corpus" to a
widely recognized independent substantive area of law.13 The transformation of
sports from a source of entertainment to a field of commerce is supported by a
legal cornerstone. It could be said that the book „Sports Law‟ in 1999 was the
first one to accept and use „Sports law‟ as a distinct legitimate term, whose
views must be given consideration, for one of the authors, Beloff, was a
distinguished arbitrator for the Court of Arbitration for Sport (CAS). The book
explains that this new emerging law has been derived from the application of
well-established legal principles used in international arena to a growing
number of sporting activities.
11 Michael J. Beloff et Al., Sports Law 6 (1999).
12 Timothy Davis, What Is Sports Law?, 11 MARQ. SPORTS L. REV. 211, 213 (2001).
13 Burlette Carter, Introduction: What Makes a "Field" a Field?, 1 VA. J. SPORTS & L. 234, 245 (1999).
14 Michael J. Beloff et Al., Id.

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It is set of sui generis principles evolved out of increasing stakes in the world of
sport, desire for higher standards of justice and the ever- increasing interaction
between sports and law.14 Concluding from above, it is after years of debates
and opposing views that sports law now gets perceived as an independent field
of law. Sports law is now universally recognized not only in law schools across
various jurisdictions but as a preferred field of practice for legal professionals.

Sports Law Today - The Concept of

‘Lex Sportiva’
Various scholars have given their views on sports law as applied in the
international domain. For example, A.R. Nafziger has defined it, “as an
authoritative process of decision-making and legal discipline, international
sports law is as much a matter of international law as of sports law.”15 He
clearly viewed it as a branch of international law. Lately, there is more and
more use of a Latin term „Lex Sportiva‟ to denote all entities related to sports
law. This concept owes its existence to the emergence of rules and regulations
by ISFs. It denotes the constitutions of these autonomous federations which the
member countries must abide by in order to compete internationally. But
according to K. Foster, a well-known sports law scholar, it has been witnessed
that various authors arguing for the distinctiveness of international sports law
have described it, in doing so, as Lex Sportiva. They have used this concept in a
superficial manner to describe the impact the globalization of sports law.

15 James A.R. Nafziger, Globalizing Sports Law, 9 Marq. Sports L. Rev, 225, 237 (1999).
16 Ken Foster, „Is There a Global Sports Law?‟, Vol. 2, No. 1 Entertainment Law, Frank Cass London, 1, 1
(Spring 2003).
17 Michael J. Beloff et Al., Id. 5.

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Rather, K. Fosteropines that the above usage causes confusion and highlights
the distinction between „International Sports Law‟ and „Global Sports Law‟
attributing the latter one as the true Lex Sportiva.16 On reading Beloff‟s
interpretationof sports law i.e. “A powerful mixture of international
competition, commercial interest and public demand is fueling the development
of legal doctrines particular to sport in a manner which marks sports law as
inherently international in character.”17 sports law is „inherently international in
character‟ because its normative underpinning lies in the constitutions of
autonomous ISFs. Lex Sportiva for Beloff thus consists of three main elements:
i (i) it has transnational norms generated by the rules and practices of
international sporting federations,

ii (ii) it has a unique jurisprudence, with legal principles that are different
from those of national courts and which is declared by the Court of Arbitration
for Sport and

iii (iii) it is constitutionally autonomous from national law.

Therefore, LexSportiva is seen as an example of global law or as a result of

globalization of sport. Its source is in the international agreements between
nations and ISFs operating in international arena, which can only be
implemented by the internal authorities of appeal as provided by the
constitution of a federation and by the Arbitration organizations authorized by
federation itself.
Lex Sportiva, although it denotes the well-written constitutions of
ISFs and the precedents passed by their internal authorities and the arbitral
awards given by external authorities approved by them, it signifies more than
that. Being international and distinctive, the function of Lex Sportiva is to
demarcate realms of authority in the sporting context. Beloff said that the
foundation principle, the cornerstone of Lex Sportiva, is to allow autonomy for

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decision making bodies in sport and to establish a constitutional equilibrium
between the courts and sports federations.18 Thus, this new concept, by
implication, indicates that context of international sports where nation states are
unable to regulate.

GLOBALIZATION OF SPORTS
LAW
When the countries all over world cease to place any barriers on the inflow of
foreign goods, capital, technology and information, globalization of economy is
said to take place. In a similar fashion when sports professionals from all over
the world are hired to compete in an international tournament, globalization of
sport is said to take place. Whereas the term globalization means broad set of
processes concerning multiple networks of economic, political, and cultural
interchange, here it implies the intensification of cross-border movement of
professional sportsmen, increasing sports integration and interdependence of
national, regional, and local sports organizations across the world. The
globalization of sport has moved the focus of legal regulation increasingly onto
international sports federations. These organizations control and govern
international sport. They are autonomous organizations and are independent of
national governments. They have their own rulebooks and constitutions. They
make law that can have profound effects on the careers of players and that have
important economic consequences. And thus, from globalization of sport,
globalization of sports law took place.19 It is thus necessary to understand how
various sporting federations govern their individual sport, how matters arising
within it are resolved and the basic terminologies used, leading to the inception
of the concept of Lex Sportiva.

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International Sporting Federations
Governing Sports Law
There are several well-known International Sporting Federations (ISFs) like the
International Football Federation (FIFA), International Cricket Council (ICC),
International Olympic Committee (IOC), International Basketball Federation
(FIBA), International Tennis Federation (ITF), International Swimming
Federation (FINA) and International Hockey Federation (IHF). These
federations govern their own sport by framing the rules of the game and the
internal regulations. They legislate and create their own norms and rulebooks
which are to be abided by all its members. They operate a discrete independent
regulatory regime globally. In this sense they are a legally plural regime
independent of nation states. Not only do courts refrain from such cases but also
the Federations claim legal immunity from national court‟s interference and
non- intervention in the affairs of a private body. This privilege to the
federations is evident from Beloff‟s argument that the grund norm of ISFs is
autonomy20 for their decision-making process. Thus, they enjoy a diplomatic-
type immunity and are said to create an „international governance of sport.‟21

These ISFs can only be regulated by their own internal organs or

external bodies established or authorized by the same international sports
federations. There are internal mechanisms provided by the rulebook of ISF
under which an aggrieved sportsperson can file a suit and a judgement debtor
can file an appeal.

19 Marias Papaloukas, „Policy, European Sports Law and Lex Sportiva‟ 14th World I.A.S.L Cong., 1, 14 (2008)
20 Beloff et Al., 20-27.
21 K. Foster,

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But in cases where the disputant is unhappy with decisions rendered by the
appellate authorities, certain external arbitral bodies are sanctioned to give
awards, to facilitate the delivery of justice and to cease him to approach
litigation. One of them is the Court of Arbitration for Sport (CAS) which is a
specialized arbitral tribunal, originally created to avoid the intervention of State
courts in the resolution of sports related disputes.

Lex Sportiva vs. The Sports Law as

Applied by Nation-States
As from above, lex sportiva is a recent phenomenon which is used in resolving
international sports disputes. Earlier, the aggrieved sports men could move
courts of law for addressing their problems in relation to international sports.
Even today, a citizen can approach court to address such problems but courts
hear only on those cases over which they have jurisdiction i.e. in local, regional
and national sports maintained, financed or aided by government or an
organization, as its national law may provide. It is this global sports law which
is popularly termed as „Lex Sportiva‟. It is suigeneris setof principles created
from transnational legal norms generated by the rules, and the interpretation
there of, of ISFs.25
But lex sportiva isn‟t the result of internationalization but the
globalization of sports law, the distinction between which is very important.

22Marias Papaloukas, „Policy, European Sports Law and Lex Sportiva‟, 10.
23Principles of international law include „pacta sunt servanda‟, equity, the doctrine of proportionality, doctrines
of personal liability, the prohibition of unjust enrichment, and the doctrine of clausula rebus sic stantibus.‟ etc as
mentioned in: Mertens, Lex Mercatoria: a self-applying system beyond national law? In: G. Teubner, „Global
Law Without A State‟ (1997).
24 Marias Papaloukas „Sports Law and Sports Market‟Χορηγία Sport Management International Journal. Vol.
1(1): 39- 45, 2005.
25Beloff et Al. id.

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An international sports law may be applied by national courts but the adoption
and implementation of a global sports law requires the exclusion of national
laws.22 The international sports law is used to deal with relations between
nation states. constitutes the principles of international law applicable to sport.
One of the chief aspects of international sports law is that it uses the jus
commune, i.e. the law of the land or in other words the „general principles of
international law‟23 generally followed by National Legal Systems.
International Sports law includes „rule of law‟ safeguards, principles like fair
hearings in disciplinary proceedings, no arbitrary or irrational decisions and
impartial decision-making as reflected from the judgements of national courts in
sports law cases. Cases involving only international sports law and no lex
sportiva can be adjudicated by the national courts. On the other hand, global
sports law may be defined as a supranational 24 autonomous legal order
createdby the private global institutions that govern international sport. It is a
private contractual order making its own rules which is neither governed by
national legal systems nor regulated by national courts.

ISSUES ARISING & CONSEQUENTIAL

IMPACT OF SPORTS LAW
The world of sport is traditionally a closed, self-governing network. There is no
significant interference from states or any other actors. The European
Commission in 2011 stressed on good governance being a condition for self-
regulation and autonomy26. However, the quality of self- governance has been
questioned due to commercialization of sport, which has made sport more
susceptible to global capitalism.
26Communication from The Commission To The European Parliament, The Council, The European Economic
And Social Committee And The Committee Of The Regions, Developing the European Dimension in Sport,
COM(2011)
12 final, 18.1.2011.

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There are two main issues emerging lex sportiva – Legal issues in self-
governance and the threat of increased commercialization due to globalization
of sports law.

Legal Issues in Self-Governance by

ISFs
Internationalized sport has a national framework of regulation and is often
funded by state subsidy whereas globalized sport has nationally ambiguous or
rootless teams i.e. „sport without astate‟ and is funded by corporate sponsors.
The regulation and legal control of ISFs is a key issuein the global economy of
sport. There are two main types of regulation that for differing reasons have
proved ineffective in the arena of ISFs. Firstly, the traditional pattern of „self-
regulation‟ of sport is incapable of resolving conflicts of interest that arise from
increasing globalization of sport and lead to corruption and politics with the
ISF. Secondly, legal regulation „by states or by national legal systems‟ is poor
as the national courts are unwilling or often incapable of challenging the power
of ISFs.

The Illegitimate and Corrupted Self-

Regulation by ISFs
ISFs like FIFA were established in 1904 by a class of people who believed in
separation of sport and state as a sacred principle. IOC strongly believes that
politicians could only violate the sports‟ integrity. On the European continent,
governments are reluctant to intervene in the sports sector. All ISFs became

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„international legal personalities‟ having private autonomy to adopt rules and
norms that have a legal impact on the legal framework imposed by the State –
by virtue of which, they have power to enter, directly or mediately, into
relationships (by treaty or otherwise) with other international persons. In other
words, international legal personality involves the capacity to perform legal acts
on the international plane rather than within a municipal law system. 27ISFs
have long assumed a capacity to enter into agreements with states irrespective
of whether that power could be found to be expressed or implied in its
constituent instrument. ISFs‟ international personality is illustrated by the fact
that they can seek relief as a plaintiff or be named a defendant in a sovereign
nation's court of law for adjudication of sporting disputes. For example, though
prior to the 1991 amendments of the Olympic Charter, the IOC's international
legal personality was never defined, the IOC had been acting as an international
person long before. Using Lex Sportiva as an excuse, ISFs enjoy “free reign”
over their respective games. There is danger in this free reign and it stems from
the ISFs self-perpetuation and self-governance with few democratic principles.
ISFs answer to no higher authority and it is free to make decisions without
appeal to any other body. Acts of nepotism have also filled numerous IOC seats.
In the past, IOC members would nominate their successors and these
nominations were commonly approved. As a result, "family seats" constituted a
part of the IOC's membership. By the late 1950's, sons, sons-in-law, and
nephews of past members became members of the IOC.28 The globalization of
sports law has all but rendered governments, international bodies, and athletes
helpless against the private organization that has begun to take over the
transnational legal space.
27 David J. Ettinger, The Legal Status of the International Olympic Committee, 4.1 PACE INTERNATIONAL
LAW REVIEW (January 1992).
28 David J. Ettinger, Id. 115-120.

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The relationship between national bodies and the Court for Arbitration in Sport
(CAS) further indicates that globalization widens the gap between the smaller,
less powerful nation-state and the larger transnational institution. It is small
wonder that some athletes feel a growing helplessness while fighting against an
external force over which neither they nor their own governments have any
control. Thus, although the establishment of the CAS has allowed individuals to
take their disputes arising out of the sport to an equitable arbitration forum, it
isn‟t sufficient. The exclusive jurisdiction of CAS to arbitrate Olympic disputes
is sourced from the Olympic Charter, from which party consent to arbitration
must have been accordingly found. Arbitration is clearly imposed because the
alternative is no participation in the Olympic Games if the agreement is not
signed.29 Lex Sportiva is therefore a dangerous smoke screen justifying self-
regulation by ISFs and the dangeris that their customs and practices will be
accepted aslegitimate.30
The self-regulation mechanisms in International Sporting Federations
work as Industry self- regulation which is a process in which the industries
monitor and enforce their own legal, ethical, or safety standards, rather than
have an outside, independent agency such as a third party entity or
governmental regulator monitor and enforce those standards.31 Self-regulation
may ease compliance and ownership of standards but it can fail due to the
inherent conflict of interest in policing itself. This is called the „paradox of self-
validating contract‟32 which most of the ISFs suffer from.

29 Viktoriya Pashorina-Nichols, Is the Court Of Arbitration for Sport really arbitration?, FACULTY OF LAW,
UNIVERSITY OF WELLINGTON, (2015),
http://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/5007/paper.pdf?sequence=1.
30K. Foster 51-52
31Organisation for Economic Co-operation and Development, „Industry Self-Regulation: Role And Use In
Supporting Consumer Interests‟, DSTI/CP(2014)4/FINAL (23 Mar, 2015)
32 Gunther Teubner, Global Bukowina: Legal Pluralism In The World Society, 11 (1997). In: G. Teubner,
Global Law Without A State (1997).
33 Adam Masters, Corruption in sport: From the playing field to the field of policy, POLICY AND SOCIETY,
111, 111

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K. Foster noticing similarities between Lex Mercatoria (merchant‟s law) and
Beloff‟s views on Lex Sportiva, puts forth that that ultimate validation of lex
sportiva like lex mercatoria must recognize that private orders of regulation can
create law and thus an acceptance of the legal pluralist argument that not all
legal orders are created by the nation state. Such a contract can create
transnational network of commercial practice. This self-validation has led to
corruption in sport and in the field of policy-making within ISFs. Adam Masters
defines corruption in sport the deviation from public expectations that sport will
be played and administered in an honest manner33. There are some factors
underlying self-validation which are majorly responsible for the inevitable
increase in corruption within the commercialization of sport to a global
audience targeted by sponsors through radio, TV and Internet. International
agencies for example the Transparency International & International Centre for
Sport Security (ICSS), inter-governmental agencies like the Council of Europe
and Interpol Integrity in Sport Unit, and the ISFs themselves like the IOC,
FIFA, and ICC have assembled to discuss, carry out research, and implement
initiatives to better understand the nature of sport corruption, its causes,
consequences, and develop reform initiatives.34 Doping, organized crime, ticket
scalping, hazing, fraud, homeland security issues, post-corruption
organizational impact, intellectual property issues, money laundering, bribery of
officials, corrupt organizational cultures, and the growth and influence of the
gambling industry on sport all require robust academic investigation and legal
machinery. As the sport sector globalizes, and the social and economic
consequences of corruption become more pronounced, a failure to address
corruption in sport may lead to the public desensitization.35
34 Lisa. A Kihl et al., Corruption in Sport: understanding the complexity of corruption, EUROPEAN
ASSOCIATION FOR SPORTS MANAGEMENT, (2017), https://doi.org/10.1080/16184742.2016.1257553.
35 Lisa A. Kihl, James Skinner & Terry Engelberg, Corruption in sport: understanding the complexity of
corruption, European Sport Management Quarterly, 17:1, 1-5 (2017)
36 Adam Masters, 110-114.
37 Paul David, The Rise of Arbitration in the World of Sport, (July 15, 2013), www.pauldavid.co.nz.

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The setting of rules can also be corrupted. While breaches of rules often overlap
the above definition of corruption in sport, the ongoing saga with FIFA and the
allegations of corruption in awarding the 2018 and 2022 World Cup finals is
controversial. The ability to set and manipulate rules has done little to diminish
the widespread belief the organization failed to meet public expectations that
football is being administered in an honest fashion. The international nature of
FIFA, football and other sports also negates the legal definitions of
corruption.36

Refusal by Courts of Law to Intervene

in Decisions Taken by ISFs
For resolving disputes, many clubs and federations have internal procedures,
and use arbitration, mediation and negotiation. For a dissatisfied sports
disputant from internal means, litigation in State courts should have been the
next available dispute resolution method, but State courts have shown their
reluctance to interfere with the determinations rendered by sports bodies
because of issues related to jurisdiction.37 In the cases where sportsmen are
suspended or disbarred by the ISF for allegedly having committed an offence
like doping, resolution methods like arbitration are though quicker and cheaper
but the standard of proof required for proving the said allegation is generally
lower than the standard required in the costly time-consuming litigation. The
self - regulatory mechanisms can work against the falsely accused sports person.
The famous Butch Reynolds Case38 is a testimony to the above.
38 Butch Reynolds v. International Amateur Athletics Federation (IAAF), 841 F. Supp, 1444, 1452 (1992).
39 A.R. Nafziger, 227-229.
40 Terence Smith, This Day in Sports, NEW YORK TIMES (Jan 20, 1980),
http://www.nytimes.com/packages/html/sports/year_in_sports/01.20.html?scp=1&sq=president%20carter&st=S
e arch.
41Harding v. United States Figure Skating Ass'n, 851 F. Supp. 1476 (D. Or. 1994)

21
Butch Reynolds, an American athlete was suspended for two years by the IAAF
for alleged illegal drug use in 1990. After a long battle of litigation, the United
States Supreme Court ordered the United States Olympic Committee(USOC) to
allow him participate in 1992 U.S. Olympic Trials, after finding the testing
procedures were flawed ab initio. This injunction brought American law and
equity into conflict with the rules of IOC and IAAF which proscribed suspended
athletes from competing. In fact, the IAAF threatened to suspend any athlete
that competed against Butch Reynolds. The American Olympic trial 400 meters
heats were postponed for four days, but the IAAF finally needed to back down.
Reynolds participated and qualified for a place as a substitute on the American
4 x 400 meters relay team. However, the IAAF which was responsible for
administering the flawed test, banned him from competing in the 1992
Olympics. Reynolds then filed a libel suit in Ohio against IAAF and won the
same with compensation amounting to $27.3 million. But later when the case
went in appeal to the Federal Court, the verdict was overturned on the
jurisdictional grounds. For some scholars like A.R. Nafziger, it is fortunate that
national courts are hesitant to hear international sports disputes which could
avoid potential international conflicts.39Although it was not at all right for U.S.
courts to pay attention to international law andapply local law in a case whose
substance is centred entirely in Europe, justice isn‟t seen to be done by IAAF in
administering the test.
In another US court case, the United States Olympic Committee
(USOC) refused to send a team to the 1980 Moscow Games40as a protest
against the Soviet invasion of Afghanistan. The court refused to intervene,
stating that the USOC is authorized by IOC and hence any cases under IOC fall
outside the jurisdiction of the national courts. Following this case, the Swiss
Federal Council granted a special legal status recognizing it as an international
institution. In Harding v. United States Figure Skating Association41 it was
held that, “The courts should rightly hesitate before intervening in disciplinary

22
hearings held by private associations... Intervention is appropriate only in the
most extraordinary circumstances, where the association has clearly breached its
own rules, that breach will imminently result in serious and irreparable harm to
the plaintiff, and the plaintiff has exhausted all internal remedies. Even then,
injunctive relief is limited to correcting the breach of the rules. The court should
not intervene in the merits of the underlying dispute.”
The CAS tried to draw a line of demarcation in an award at the Atlanta
Olympic Games in Mendyv. IABA (1996)42. As per modern theory, the
distinction drawn by traditional theory into what kind of matters the tribunal can
entertain in respect game rules, can be ignored in „high level sport‟ because of
the economic consequences. It was accepted that the judicial review was
„limited to that which is arbitrary or illegal,‟ or in violation of „social rules or
the general principles of law‟, hence suggesting that even the rules of the game
may not be immune from legal review.43 However in Agar v. Hyde44, the
Australian High Court considered whether a governing body could be held to be
negligent when drafting the rules of the game or for failing to alter the rules.
The Court decided that they could not.
The increasing globalization of sports‟ law will increase the
likelihood of “forum shopping” whereby ISFs locate themselves in legally
friendly countries. This became apparent in the case of Lewis v. Bruno, where a
dispute between two British boxers as held not triable by the British courts
because it involved the interpretation of the rules of the WBA, which is legally
domiciled in the USA. But it is also interesting to note that in several cases the
English courts, in contrast to other courts, do not appear to recognize the
sovereign status of ISFs.45 It was held by Lord Denning in Reel v. Holder that
the rules of ISFs are not immune from the intervention of law courts in the
interest of justice.46In the sport games played within the nation, the law used is
on the lines of the principles of International Sports Law in contrast to lex
sportiva and the aggrieved sportsmen can approach their national courts to

23
address their injuries from sports. And in several cases of such kind, the
litigation has gone in the favor of injured players. For example, in many
concussion suits filed by American football players against the National
Football League (NFL) – a national sporting federation as opposed to
international sporting federation – had resulted into US courts directing the NFL
to establish funds for medical help and also for research, safety and educational
programs. Sports organizations address the risk of serious injury by enforcing
stricter discipline when law courts have jurisdiction to interfere with them.47

Increased Commercialization of Sport

The existing patterns of global governance of sport have proved incapable of
resisting commercial interests. Commercialism and sponsorship have infiltrated
the governing bodies of sport. In this process, the interest of other stakeholders
has been marginalized. As discussed above, the traditional model of self-
governance, with autonomy to manage its own affairs has discouraged
transparency and accountability in managing sport. The arbitrary decision
making ofISFs is a result of this increasing commercialization in the sport. In
recent times, sport is sold as a commodity, especially to television broadcasters.
These broadcasters are the primary consumers with massive bargaining power.
Sport is seen as a business venture - with franchises relocating, rules changing
to accommodate television and any franchise which does not contribute to the
economic growth being ruthlessly removed to moved. American sports league
isseen as a classic example of independent capitalist venture. The sports league
governs itself - it is independent, autonomous and exclusive. The governance of
the league is in the hands of a board of owners.

24
Pressure on Developing Countries to
Develop Their Own Sports Law
The globalized sports‟ law used in self-governance is slowly putting pressure on
nation-states to regulate their sports. This challenge presented to all major
countries in bringing about a comprehensive sports law in their country has
pressured central governments to take action on policies that might be new to
them. Because sports today hold a great amount of stake in global economy, a
country cannot say no to investment in sports and cause delay in enactment of
sports law especially its counterparts are moving ahead with it. For India, the
Comprehensive National Sports Policy 200748 aims at building on previous
sports policies with a view to accomplishing the unfinished agenda and
addressing the emerging challenges of India in the 21st century, most
particularly the national goal of emerging as a global, yet inclusive, economic
power in the near future. In developing nations, sports law is in its
developmental stages and has a long way to go. As Justice Cardozo once said,
“The law has its epochs of ebb and flow; the flood tides are on us. The old order
may change yielding place to new, but the transition is never an easy process”.

Diminishing Local Diversity

The economic globalization of sports underlies the globalization of sport shows
and events. It reaches its highest point with genuine global sports events such as
Olympic Games and World Cups49. The economic spill-over of global sporting
events in the host countries too often remains the fallacy of sensational and
publicized over-evaluation taking its roots in methodological tricks or even
crude mistakes. TV broadcasting generates or reinforces differentiation, or even

25
discrimination, across the various sport disciplines: for instance, football always
retains the largest coverage. The greater the audience of a sporting event, the
higher the price for an advertising spot to be broadcast immediately before or
during the event or at half time break.50 Other sports are neglected. Owing to
same set of rules, globalized sport law produces uniform pattern of sport that
diminishes national traditions and local diversity. A number of less popular
disciplines are simply outmuscled from the TV screens. In fact, television
exacerbates all other factors of uneven economic development across different
sports due to its media and financial interests in a few privileged sports. Every
country invests in sports to put itself on the global radar, but if it focuses on
only most popular sports, it will jeopardize other local sports, even local
variants of the sport.

26
 CONCLUSION
Sports law is truly sine qua non for the fair play of sports. Sports law is today
regarded as a separate field of law containing a unique set of principles. Sports
being a live source of entertainment for people all over the world, have attracted
huge amounts of investments by corporate sponsors thus holding a considerable
stake in global economy.
Many International Sporting Federations (ISFs) have been
established to provide an international platform where sportspersons
representing countries compete against one another to receive the Grand title.
The ISFs who are international legal personalities make their own law to govern
their sport. This law, referred to as lex sportiva, is distinguished from the
general principles of international law as it cannot be questioned in the law
courts of any country. The ISFs regulate themselves on their own. In the process
of self-regulation, various legal issues crop up like conflicts of interests among
sportspersons and ISFs, indefinite jurisdiction of lex sportiva and
consequentlegitimization of every custom and practice adopted by the ISFs.
But if this self-regulation can avoid reputational damage and
related risks to all state-actors in the sport, it could become a powerful incentive
for a pro-active self-regulation. Any failure of such regulation disclosed to
public should be investigated by an external, independent organization which
sometimes can take highly punitive measures taken against the ISFs. The
problems of self-validation can be met by opening avenues for sportspersons to
address directly their grievances to a closed-circuit arbitration like the Court for
Arbitration in Sport (CAS) and the general public to indirectly validate the
customs and practices via public opinion. The increased commercialization of
sport is inevitable and all the national governments must bring about their own

27
statutes to protect their sportsmen, the local diversity in sports and to deal
effectively with issues like labor, anti-trust etc.

Bibliography
BOOKS :
Dimitrios P. Panagiotopoulos, Sports Law : Lex Sportiva & Lex Olympica published by
Athens

Robert C.R. Siekmann & Janwillem Soek, Lex Sportiva : What is Sports Law ? published by
Springer

Stephen F. Ross, Global Sports Law published by EE Elgar

James A.R. Nafziger & Ryan Gauthier, Handbook on International Sports Law, published by
EE Elgar

James A.R. Nafziger, Transnational Law of Sports, published by EE Elgar

Mukul Mudgal & Vidushpat Singhania, Law & Sports in India Developments, Issues &
Challenges, 2nd edn., published by Lexis Nexis

Michael Beloff, Tim Kerr, Marie Demetriou & Rupert Beloff, Sports Law , 2nd edn.,
published by HART Publishing

Matthew J. Mitten, Timothy Davis & Barbara Osborne, Sports Law : Governance &
Regulation, 4th edn., published by Aspen Publishing

Richard Karcher & Ray Yasser, Sports Law for Sport Management, 1st edn., published by
Carolina Academic Press

Ray Yasser & James R. McCurdy, Sports Law : Cases & Materials, 5th edn., published by
Aspen

Lovely Dasgupta & Shameek Sen, Sports Law in India, published by Sage publications

Adam Lewis QC & Jonathan Taylor QC, Sport : Law & Practice, 4th edn., published by
Bloomsbury Professional

28
ARTICLES :
Ken Foster, Is There a Global Sports Law ? published on Enterainment & Sports Law
Journal

Antoine Duval, Transnational Sports Law : The Living Lex Sportiva published on T.M.C.
Asser Institute for International & European Law – Asser Research Paper

Leonardo V.P. de Oliveira, Lex Sportiva as the Contractual Governing Law, published on
International Sports Law Journal

Maria Francesca Serra, Lex Sportiva : Present & Future Perspectives, published on
International Sports Law Review

Lorenzo Casino, Sports Law : A Global Legal Order ? published on IMT Institute for
Advanced Studies

Lorenzo Casini, The Making of a Lex Sportiva : The Court of Arbitration for Sport published
by IMT Institute for Advanced Studies

Kolev B., Lex Sportiva & Lex Mercatoria, published on The International Sport Law Journal

Blackshaw J., Towards a „Lex Sportiva‟ published on International Sport Law Journal

29