10th IASL Congress ConclusionsSports Law: Implementation and the Olympic Games
HCRSL, Athens 25th – 27th November 2004
Conclusions By: Dimitrios Panagiotopoulos
I. SPORTS INSTITUTIONS AND SPORTS LAW
a) Sports Legal Order
During this section of the congress proceedings the ability of bodies involved in sports to generate rules of law was discussed and examined in the context of their institutional autonomy and the national and international legal order relating to sports and competitive activity. Moreover, the field of application of rules of law of physical movement as distinct to sports movement (which equals the sporting act), the nature of sports institutions and their ability to generate rules of law for sports activity and the extent of law and non-law in sports rules were examined.
In parallel to normal rules of law, for sports activities internationally there are now also special rules of law, which have been adopted on the basis of the institutional autonomy of sports agencies, which frequently reflect a strong degree of public interventionism, which bear the name Lex Sportiva. Questions arising which require serious consideration are: a) whether sports rules can be strictly autonomous and b) what form could the modern legal system relating to sport internationally take so that under its supervision the Lex Sportiva might apply to ensure objective and fair trial and the enforcement of decisions of an official judicial body for sport, an international sports court.
The relationship between sport and the ethical conduct of the those persons involved in any manner in sports, the user of prohibited doping substances by athletes, anti-ethical conduct by major figures in sports vis-à-vis sponsors, umpires and spectators, raise ethical issues, particularly from a legal perspective and make it necessary to adopt a Sports Ethics Code with a specific structure and content, responsibility for implementation of which would be assigned to an independent body, and in particular and independent sports authority.
Legal provisions on the safe hosting of sports events such as surveillance of sports fans should take into consideration the provisions of the European Convention on Human Rights, the relevant legislation of the European Court of Human Rights (and in particular the right to privacy and family life) and the provisions of the relevant articles of national constitutions.
In order to develop a uniform, modern sports law system the national legal systems of all countries around the planet should be researched to examine the history, nature and applicable rules of law for sport and the relationship between those rules of law and ordinary law.
A first step in this direction taken in Japan revealed that there are provisions for sports law covering the development of sport, national stadiums, the Youth Olympic Games Centre, the Japanese security school, public gambling, cycling, small vehicle races, races involving petrol-driven vehicles, the Japanese Games association, signs at golf courses, leisure law and so on. In particular the sports law enacted in 1961 is the basic law governing amateur sports in Japan.
In Mexico there are three main organisations, which control the world of sport: the Mexican Sports Federation (CODEME), the National Sports Commission (CONADE) and the Mexican Olympic Committee (COM). In February 2003 a general law on sports was enacted which repealed the general sports law of 2000 and adopted the idea in article 3 that rules under the new law should not be issued more than 180 days after the date on which the law enters into force. These new rules for sports were enacted in April 2004.
In Russia professional sport is one of the most profitable industries. Due to extensive changes in the Russian economy and society, this aspect of the sports industry has developed in full harmony with international standards and the history of professional sports, particularly in the countries of North America and Europe. The structure of professional football and ice hockey are examples of the most successful sports industries in the country.
In Europe, when a professional footballer provides his services to a club this relationship should be captured in a standard contract. On the other hand, due to the nature and special features of the work provided by the footballer, it is difficult to guarantee smooth career development without affecting his personal and fundamental human rights in relation to work such as: bans from official matches and training, rumours – leaks about transfer when the contract is still in force, which undermine his right to professional and financial betterment and in effect make his employment impossible.
Consequently, it is important to examine the nature of the right of an athlete to publicity and his ability to capitalise on his professional success, by exploiting the commercial value of his own name. There is an issue as to whether the athlete has an exclusive right to use his identity for commercial purposes and the power to prohibit third parties using it without his authorisation.
Lastly, questions should be asked about whether an athlete who assigns publicity rights to a third party to avoid certain forms of behaviour, which may have a negative impact on his image and the values deriving from it.
In Brazil the implementation of international rules of sports law such as the World Anti-Doping Code and conflict with constitutional provisions is a major issue since sport there has developed into a particularly profitable business. In order for athletes to satisfy both their personal demands and those of their sponsors, they frequently turn to doping and special legal provisions are required in terms of both substantive and procedural issues to ensure that justice is effectively administered.
Sports law is gradually developing in Argentina too. Although interest in the subject has increased over the last 10 years, the greatest intervention took place just 3 years ago. Sports law issues have begun to attract particular attention not only from lawyers involved in this field of law but also from leading figures in the world of sport there who in light of financial differences with their clubs acknowledge the need to seek out alternative solutions to deal with difficult day-to-day situations based on special rules of sports law in effect.
b) European law and sports activity
Particular problems raised by important aspects of professional sports were discussed in the context of European law and sports activity in Europe.
After the Bosman case, which was handed down by the European Court of Justice on 15-12-1995, many relationships and dealings were established between representatives of the Community institutions and those of the sports movement with the prime ones having to do with freedom of movement of players and transfer compensation. At the same time the legal systems of international sports federations and the IOC received a confirmation, systems which stand apart from national systems and from the European legal system. The provisions of the sports law system (the Lex Sportiva) should only be bypassed if it is demonstrated that they are contrary to public order concerning personal and economical freedom rights, in other words that they are contrary to a fundamental principle of the legal and economic order which has been established within a country.
Economic and financial issues which relate to management of clubs are increasingly becoming particular to the sports movement and in many cases are contrary to the provisions of the normal law of certain Member States of the European Community.
Training and diplomas issued by the sports movement also offer an opportunity to verify the measures, which bolster a specific approach to the issues raised.
The provisions of the European Constitution simply confirm the development, which not only takes into consideration the special features of the area but somewhat opens the path to the start of a real exception for sport. In England in 2002 an Independent Football Commission was set up as a regulatory authority with limited powers. Major financial problems, continuous marginalisation of certain groups of football supporters and a lack of transparency continue to cause problems for English football. These problems can also be seen across European football in general. According to this Commission, English football should more clearly show that it has the ability to regulate itself and that it is ready to shoulder the responsibility that this entails, within the context of a general debate about what in fact constitutes effective management in sport.
In the study on social dialogue in European professional football it is necessary to record: a) the legal basis for the relationship between the player and the club, b) the provisions implemented by candidate countries and c) the ability for such a dialogue to be held. In general terms: a) in many new Member States of the EU employment relations of professional footballers with their clubs are not strictly based on labour law, b) most new Member States of the EU have implemented Directive 1990/70/EC fully which seeks to prevent abuse of fixed-term contracts in the professional football sector and c) social dialogue is totally or partially missing from most former socialist states.
Professional football in the new Member States of the EU, and in particular the former socialist countries, is still in a transitional stage with centrally controlled and state-financed aspects coupled to a liberalised commercial industry.
In relation to the prevalent practice of age discrimination, particularly in sports and leisure bodies in the UK, there is no adequate data or proof and legal reforms on this practice are necessary. Consequently the development of strategies to ensure compliance within a sports and leisure club both for workers on contract and for volunteers should be a legal priority for such organisations.
The Declaration on Sports 1997 contained in the Treaty of Amsterdam sent out a strong political message from governments and heads of state about the importance attached to sport today and the values it represents. In the European Constitution sport is referred to in article III-282 (Part III, Title III, Chapter VI, Section 4 on Education, Youth, Sport and Vocational Training) which states that the EU shall contribute to the promotion of European sporting issues, while taking into account the specific nature of sport, its structures based on voluntary activity and its social and educational function (paragraph 1 of Article III-282, last sentence) and that the EU seeks to develop a European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially young sportsmen and young sportswomen (Article III-282[g]).
Sport as an economic activity within the meaning of Article 2 of the Treaty on European Union should comply with Community law and in particular with the provisions dealing with the free movement of workers.
Sport also functions as a tool for the European Union to extend the scope of its social and educational policies with the overriding aim being to strengthen unity between European countries.
In general terms, this effort to unify tends to ensure uniformity of legal provisions and remove the inconsistencies, which existed on the various matters they regulate. Education in sports law plays a major role in this regard and should be extended and expanded.
II. RESOLUTION OF SPORTS DISPUTES
a) Sports disputes and sporting justice
One of the most important problems in sports activity both in Europe and internationally is that of sports justice. The term ‘justice’ in sports should be clearly defined, as should the procedural system and the principles for administering justice to ensure that a decision is issued based on evidence and an interpretation of the rules of law, which are based on the principles of fairness.
Sports justice (be it civil or administrative justice in general) is concerned with the problem of resolving disputes, which arise during sporting events, and with the issue of providing interim judicial protection before the main judicial remedy is tried. It is necessary to strictly define what exactly the sports legal order says on matters relating to the nature of sports disputes, the competence of sports bodies, on who can obtain interim legal protection, what this covers, the form and effectiveness of interim judicial protection, etc.
There is a need to fully identify sports disputes and establish a special court (a sports court) to try them, which would be empowered even to issue injunctive relief. A comparative study of judicial review of disciplinary decisions of sports federations prepared by a French judge and a judge from the CAS shows the gradual establishment of judicial review of those decisions both by the national judges and by the arbitrators-judges in CAS in relation to observance of procedural safeguards and observation of substantive, fundamental guarantees.
Doubling of disciplinary penalties for teams where their fans create problems at sports grounds, which is provided for by law and the rules governing team sports, is contrary to the principle of fairness and equity. Law, and in particular sports law, is duty-bound to provide for difficult types of fault based on the degree of responsibility. Fault should be a concept applicable in sport and should be defined according to the sport.
It is necessary therefore to ensure the independence and effectiveness of arbitration in sports issues as well as the special training of the sports' arbitrators in matters of Sports Law.
b) Sports jurisdiction and Fair trial
The ever-increasing power of international sports federations has serious repercussions on how law is made and the procedures for applying it in the world of sports. The recent intervention by FIFA requesting that members of the Hellenic Football Federation refrain from seeking any judicial remedy against the voting which took place on 30-10-2004 and threatening to impose sanctions on the federation raises timely issues on the autonomy of the sports movement within the sports legal order and the resolution of disputes arising in sports.
Until recently, efforts to stamp out doping depended almost exclusively on athlete testing and awareness rising among the public. The World Anti-Doping Code and the work started by UNESCO to transform this code into an international treaty promise a more uniform and stable system of control by adopting objective liability for doping offences. However, the principle that the athlete is innocent until proven guilty via a disciplinary procedure based on the principle of counterevidence should be established.
A second approach to the problem of substances, which are difficult to detect, is to use a sports profile. This approach is based on an extensive physical examination of athletes to develop a biological profile, which can be monitoring by doping control agencies. A new threatening form of doping is genetic doping.
The main task of the restrictive rules of Lex Sportiva, concerning the personality and freedom of the person in participating in the athletic field, is to ensure that there are no violations of human rights by the athletic institutions and also that there is substantive compliance with the provisions of law on human rights.
III. SPORTS LAW AND THE OLYMPIC GAMES
a) Rules of Law – Lex Sportiva and the Olympic Games
The Olympic phenomenon was established and developed in an environment with ritual, symbolic, religious elements as part of celebrations at Olympia. The establishment and operation of an independent and consequently sustainable university chair in the Prefecture of Ileia could, among other things, defend the Olympic heritage and constitute a reaction to the abuse and disfigurements of that heritage and to the degenerative phenomena which that heritage is assailed by these days.It is true that sport provides fodder for the democratic fancy that is equality. It is also true that sport has been associated with ideological positions to do with superior races, national supremacy and related ideas, which have often placed entire peoples in difficult situations. Sport can facilitate the social and cultural integration of the individual-cum-citizen into a value system. There needs to be a common denominator of ‘current values’ in a modern, organised society, though with universal symbols and messages which supposedly reinforce and reproduce the sporting ideal.
However, is something like that feasible today? Can the day-to-day and the vulgar and survival co-exist with eternal ideas, selflessness and revival of the Games? The answer is no but is tending to prevail by cultivating false visions. None can doubt the primacy of the international Olympic movement on the international sports stage over recent decades. Trans-national cooperation on sport must play a major role in international sporting events. International representation at sports events raises legal issues of interests, which should be discussed in the context of international conferences. The Olympic Charter refers to nations and defines them as entities, which have been internationally recognised. Nonetheless, over recent times there have been areas, which are not internationally recognised as nations but still claim that they are nations. They have even acquired international representation independent of the nation to which they belong (take for example registration of the Catalan Roller Skating Federation with the International Roller Skating Federation).
The number of teams and athletes participating in the Olympic Games has increased dramatically. 311 athletes from 13 countries attended the first modern Games held in April 1896. One hundred years or so later, at the Athens 2004 Olympic Games the number of athletes had risen to 10,500 and 5,500 escorts while at the Turin Winter Games 2006 the figures will be 2,500 athletes and 2,500 escorts. There is a need to set a maximum number of athletes for each sport with clearly defined selection criteria using a system for qualifying athletes to participate in the Olympic Games.
Adoption of the concept of the athlete’s nationality in the Olympic Games and the methods used for defining this nationality are related to rights and obligations that have repercussions and a strong legal-juridical interest, since the relevant provisions above go beyond the rules of Lex Sportiva-Olympica.
For disabled athletes there is a need to fully recognise their right to practice their sport at top level. This can only be achieved by removing differences in treatment compared to athletes who do not have any disability with means, which are necessary for the special, expensive training they need to undergo for international sports events.
The idea of a truce in antiquity as an act of peace, as a cessation of hostilities in light of an important, socially accepted event such as the Olympic Games, as part of this sacred festival held at what was a sacred site, was one of the first sources of inter-state law and was an agreement based on ‘unwritten’ law between the leaders of city-states, clearing revealing the political dimension of these Games at that specific historical juncture.
In the modern age the Olympic Games have lost much of their political importance and are promoted in institutional and organisational terms primarily via a movement run by private individuals. The idea of the truce is directly related to the policies of sovereign states in the international community and seeks to affect their international relations. The key point examined in the Olympic movement, namely the utter lack of a national element, could not be achieved at the Athens 2004 Olympic Games nor could the ideal of the Olympic Truce be imposed. The good intentions and activities of the International Olympic Truce Centre bore no fruit. Perhaps one move in the right direction would be to establish a sports United Nations with overall responsibility for supervising the Lex Sportiva and international games.
b) Contractual, economic and political aspects of the Olympic Games
An important phenomenon, which is rapidly developing in the economic sector of athletic games, is ambush marketing. It is necessary to adopt provisions to minimise ambush marketing. Sports event organisers should have the intellectual property and related rights and supervise control of them via effective contracts assigning usage rights. There should be a possibility for the sponsor to obtain court protection for slander, false advertising and erroneous presentation. Various ambush-marketing techniques exist. The Games held in Athens raised various issues and it is also important to see in what way the Organising Committees for the forthcoming Winter Olympic Games in Turin in 2006 and Beijing in 2008 will deal with the issue of ambush marketing.
In light of the World Cricket Cup which took place in South Africa and the World Football Cup which will take place in 2010, the South African parliament adopted legislation in 2001 and 2002 in an attempt to assist sports bodies and sponsors of major sports events in their struggle against ambush marketing.
The strategies developed and followed by companies vary and there is not always a uniform strategy. Marketing and customer loyalty are two non-identical concepts, which can be used by skilled executives to contribute to the robustness of sports enterprises.
The conclusion of a sponsorship agreement between the sponsor and the athlete presupposes that the athlete has excellent physical and sporting condition in order to ensure his attendance at as many important sports events as possible. Infringement of the doping rules by an athlete could have consequences on his contractual relationship ranging right up to rescission taking into account the law governing the contract.
The ability to provide broadcasting rights for a sports event is important and requires the legal safeguards provided by contract. Sports broadcasting contracts do not depend exclusively on ownership rights but more so on the rights generated and governed by the contract between the owner of rights and the broadcaster. Holders of rights (in other words access and intellectual property rights) for broadcasting sports events indirectly control world sports. Questions, which were examined, were: Who has the right to broadcast sports events? Does the owner of the stadium who controls access to the stadium have such a right? What happens with sports events held in public places? If there is no access control to sports events or no one has the right to control access, who has the right to broadcast? Where do broadcasting rights derive from, is there such a right and if so who owns that right?