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EDITORIAL

ARTICLES

What is Sports Law? Lex Sportiva and LexLudica: a Reassessment of Content andTerminology 3Robert C.R. Siekmann

Defining the Scope and Structure of Inter nationalSports Law: Four Conceptual Issues 14James A.R. Nafziger

The Making of a Lex Sportiva by the Court of Arbitration for Sport 21Lorenzo Casini

Does the Outsourcing of a Sports League AffectIts Evaluation under EU Competition Law? 29Olli Norros

De Sanctis and the Article 17: the Last of theSaga? 38Matthijs Withagen and Adam Whyte

Webster, Matuzalem, De Sanctis …. and theFuture 42Frans M. de Weger

Social Dialogue in European ProfessionalFootball 56Michele Colucci and Arnout Geeraert

The FEI and the Continuing Fight againstDoping in Equestrian Sport 70John T. Wendt

The Specificity of Sport: Sporting Exceptions in EU Law 75Robert C.R. Siekmann

Sport and Nationality: “Accelerated”Naturalisation for National RepresentativePurposes and Discrimination Issues inIndividual and Team Competitions under EU Law 85Robert C.R. Siekmann

Ambush Marketing: an Analysis of Its Threat toSports Rights Holders and the Efficacy of Past,Present and Proposed Anti-InfringementProgrammes. 97Jules Tyrone Marcus

Sports Image Rights in The Netherlands 115Steffen Hagen

Negotiating, Drafting and Interpreting SportsMarketing Agreements: Some General Legaland Practical Points and Considerations 127Ian Blackshaw

The Sport Governance Network of EuropeanFootball: Towards a More Important Role forthe EU and Football’s StakeholderOrganizations 130Arnout Geeraert, Jeroen Scheerder and Hans Bruyninckx

PAPERS

Towards a ‘Lex Sportiva’ 140Ian Blackshaw

The US Model of Sports Law: Structure and Key Issues 144Karen L. Jones

OPINION

The Etymology of the Termini Technici Lex Sportiva and Lex Ludica: Where DoThey Come From? 153Robert C.R. Siekmann

The Severance of International Sports Law into a Separate Branch 154Aliaksandr Danilevich

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Practicing Sports - a Fundamental Human Right 157Alexandru Virgil Voicu, Augustin Fuerea, Daniel FlorentinVi�oiu, Zeno Daniel �u�tac, and Marcel Ionel Boc�a

Strict Liability and Sports Doping - WhatConstitutes a Doping Violations and What Is the Effect Thereof on the Team? 163Niel du Toit

Commercial Appropriation of Identity: How Could Two Courts Get It So Wrong? 165Steve Cornelius

Variations of European Sports Law in Football Practice 167Pavel Hamernik

Arbitration Tribunal for Sport Affairs at thePolish Olympic Committee 171Tomasz Pasieczny

The Civil Liability of Teachers and Trainers for the Acts of the Under-Age Sportsmen, from the Perspective of the New Civil Code of Romania 173Alexandru Virgil Voicu and Réka Kis

Discussion on the Application of EuropeanUnion Competition Law to the Procedures for the Assignment of Category I, Category IIand International Competitions in theNetherlands - KNHS 175Richard Parrish

Drafting Sports Mediation and ArbitrationClauses for Settling Disputes Through the Court of Arbitration For Sport 180Ian Blackshaw

BOOK REVIEWS

• Law & Sports in India by Mukul Mudgal 182• Sports Law in South Africa by Andre M. Louw 182

Ian Blackshaw

HISTORY

The Boycott of the 1980 Moscow OlympicGames and Détente 183Robert Siekmann

NEWS ITEMS

• Max Moseley Loses European Court ofHuman Rights Privacy Appeal 189

• UK Bid to Host 2018 FIFA World Cup: LordTriesman Spills the Beans! 190

• Protecting Sports Images Rights: the Rise and Fall of Super-Injunctions? 190

• Champion Jockey Kieren Fallon Is Banned by Court Injunction from Competing in the2011 Derby Horse Race 191

• The UK Bribery Act 2010 Finally Comes Into Force 191

• Manchester United to List on SingaporeStock Exchange 192

• DHL in New Major Sponsorship Deal withManchester United 192

• Manchester United Post Record FinancialResults 192

• Mohamed Bin Hammam Loses His FIFABribery Appeal 193Ian Blackshaw

DOCUMENTS

Authors index ISLJ 2002-2011 195 Subject index ISLJ 2002-2011 202

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This is the decennial jubilee issue of ISLJ over the period 2002-2011.That means 258 articles, 55 conference papers, 148 opinions, 42 bookreviews et alia (please, see also the Indexes (contents, authors, subjects)which are reproduced at the end of this issue. In the first years ISLJappeared three times annually (about 30/40 pages per issue). As from2004 it gradually grew from approximately 90 pages to 180 pages perdouble issue. Authors from almost all regions and continents of theworld delivered their views in ISLJ. In this context it is striking to notethat Africa and the Arab world are still nearly absent in sports law. Alarge contribution to ISLJ which is the official journal of the ASSERInternational Sports Law Centre (AISLC) in The Hague, the so-called“Legal Capital of the World”, and now also of the Hague InternationalSports Law Academy (HISLAC or HISLA©) which was established lastyear at the international Lex SportivaConference in Djakarta (Indonesia)and of which the next Conference is planned to take place in New Delhiin cooperation with Sports Law India (Prof. Amaresh Kumar) onComparative Sports Law (with an emphasis on the Asian region), wasmade by Prof. Ian Blackshaw who is now a honorary member of theEditorial Board. We are also in particular proud of the fact that the two“doyens” of International (global) and European Sports Law, Prof. JimNafziger (USA) and Prof. Steve Weatherill (United Kingdom) respec-tively regularly and spontaneously offered their valuable insights forpublication in ISLJ. Over the years, ISLJ reported on the “deeds” of theAISLC with regard to its book publications series and in the form ofpre-publications from book contributions many of which are compila-tions of Europe-wide and worldwide country studies on a particulartopical subject of the undertaking of EU-commissioned applied-researchstudies and reports; and of the organization of seminars and conferences

at home and abroad and their results. In the field of education, theAISLC is now closely connected with the special Chair in Internationaland European Sports Law at the School of Law of Erasmus Universityin Rotterdam, the Dutch “City of Sport”. This bond is factually illus-trated by the reproduction of a number of “lecture articles” on diversesubjects which were delivered by Robert Siekmann to this and the pre-vious issue of ISLJ. He also presented this series of articles in a courseat the School of Law of Shandong University of Finance and Economics(China) where sports law now is a new item of education and research,in November this year.

In ISLJ 2011/3-4, there is a number of articles on the theme of “Whatis Sports Law?”, the international Lex Sportiva discussion which is acontinuation of what was started last year in the Journal. The inaugu-ral lecture that Robert Siekmann presented in June this year in Rotterdamis amongst them. In this context, he also contributed a research-basedOpinion on the etymology (origin) of the technical terms lex sportivaand lex ludica. Amongst other valuable contributions, the publicationof several expert comments on the CASs award in the De Sanctis caseon professional football transfer “buy-outs” (Webster/Matuzalem/DeSanctis) should especially be mentioned.

Looking forward to the future, we very much welcome Karen Jones,a new member of the AISLC, who will be the managing editor of ISLJas from 2012.

Finally, we thank all members of the Editorial and Advisory Boardsof ISLJ as well as all authors and commentators for their effort in thepast Decennium, thus helping forward the development and expansionof the Journal.

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* This is the full text of the inaugural lecture which was deliveredin summarised form upon the acceptance of the appointment asExtraordinary Professor of International and European SportsLaw at the School of Law of Erasmus University Rotterdam onFriday, 10 June 2011.

** Director, ASSER International Sports Law Centre, The Hague,and Professor of International and European Sports Law,Erasmus University Rotterdam, The Netherlands. The authorholds a Master’s degree in Slavonic languages and general linguis-tics as well as public international law from the University ofLeiden, and a doctorate in public international law from theUniversity of Amsterdam.

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

by Robert C.R. Siekmann**

Prof. Robert Siekmann presenting his inaugural lecture on “What is Sports Law?” at Erasmus UniversityRotterdam, June

1. IntroductionWhat is ‘sports law’? This is a question often asked by students, academ-ics, lawyers and lay persons. Anyone attempting to formulate an answeroften searches in vain for a response that is compelling and demonstratessome modicum of understanding of what ‘sports law’ is. Perhaps thedifficulty in articulating a response is, in part, a result of uncertaintyrelated to what information is being sought. Is the question as to what‘sports law’ is intended to focus attention on the content of the practiceof ‘sports law’? In other words, which substantive areas of practice fallunder the rubric of ‘sports law’? Or is more particularly the role of thesports lawyer intended as the principal focus? In this regard, perhapswhat is sought is information concerning the services provided by alawyer in this field. Finally, perhaps the inquirer seeks an answer to amore fundamental consideration: does such a thing as ‘sports law’ exist?1

In other words, can sports law be considered as an independent sub-stantive area of the law, does it enjoy recognition as such, and if so, why?This is actually the primary question that requires answering, becausethe answer to this question is not unchallenged. The question of whatsports law is can then be addressed. This address is structured as follows:1) Does sports law, a sports law, sports law as an area of law exist?, 2)What does sports law consist of?, 3) a reassessment of content and ter-minology, and 4) what is the ‘hard core’ of sports law? The reassessmentincludes my own vision of the subject matter and issues that go to makeup sports law, partly in the light of a presentation of existing, previouspositions and views in this regard.

2. Does such a thing as ‘sports law’ exist?Beloff says that the question of whether a ‘lex sportiva’ - which he appar-ently uses literally in the sense of ‘sports law’ here2 - exists is a persist-ently recurring theme. Whether a cohesive set of rules exists or whethersports law is nothing more than a mosaic arbitrarily constructed froma diversity of generally accepted and separate areas of law - the law ofobligations, torts, intellectual property, administrative law - is the sub-ject of continuing debate. The issue is not purely academic, a qualifica-tion which cynics are inclined to use for an issue of no practical impor-tance. Proponents of the first argument (sports law does exist) suppos-edly do so partly out of a wish to enhance the status of the subject3,which does not necessarily mean that advocates of the latter argument(sports law does not exist) can be said to be motivated in any way by awish to belittle that status. Nonetheless, those who advocate the exis-tence of ‘sports law’ clearly choose Latin terminology in order to lendthe subject a semblance of classical antiquity, sometimes using the alter-native term ‘lex ludica’4, even though this is a rather unfortunate choicesince it might come across as faintly ludicrous if incorrectly translated(‘playful law’). The question of whether ‘sports law’ exists is not of enor-mous importance, but nor is unimportant according to Beloff.5 Mittenand Opie remark that the academic study of the law regulating sport isrelatively new. In effect, they say, there is no consensus amongst schol-ars and academics who regularly examine the rapidly growing body ofrules and case law that governs the sports industry as to whether ‘sportslaw’ is an independent area of the law or merely the application of gen-eral legislation, which would better be labelled as ‘sport and the law’.The debate revolves around the question of whether the area displaysthe unique and coherent characteristics of a separate collection of rulesor whether principles from more established legal disciplines merelyappear to be finding particular or special application.6 Davis has out-

lined a possible assessment framework for answering this question inrelation to the subject of ‘sport and the law’. But before defining thatframework, those criteria, he comments that there are, roughly speak-ing, three views or positions.a. the traditional view that ‘sports law’ does not exist: no separately iden-

tifiable body of law exists that can be designated as sports law and thepossibility that such a corpus of law will ever develop is extremelyremote; according to this interpretation, ‘sports law’ is nothing moreand nothing other than an amalgamation of elements from differentsubstantive areas of law that are relevant in the context of sport; theterm ‘sports law’ is then incorrectly chosen since sport as an activityis governed by the legal system as a whole;7

b. the moderate position contends that ‘sports law’ has the capacity todevelop into an independent area of law; in 2001, when Davis’ arti-cle is published, proponents of this view identify developments thatwould appear to point in that direction; they draw attention to thede facto unique character of certain issues in sport that require spe-cialised analysis and the in some cases unique application of the lawto sport; and:

c. ‘sports law’ is a separate area of the law; supporters of this view high-light the increase in legislation and court case law specific to sport asa sign of this. Commentators argue that those who view sports lawmerely as an amalgamation of various other substantive areas of thelaw ignore the present-day reality that very few substantive areas ofthe law fit into separate categories that are distinct from and inde-pendent of other substantive areas of the law; overlaps exist not onlywithin sports law, but within other areas of law as well; the inter-dis-ciplinary nature of sports law has in any event not helped the case forestablishing the existence of a separate legal discipline; the support-ers of this view argue, additionally, that the unwillingness to recog-nise sports law as a specific body of law appears to reflect the inclina-tion of some intellectuals not to take sport seriously. In this regard,they emphasise the tendency to marginalise the academic study ofsports rather than treat it as any other form of business.

The debate on the existence of sports law as an independent field of lawis not extraordinary given that questions about the legitimacy of newfields of law are not uncommon. Similar controversy accompanied theemergence of ‘computer law’, for example. Such diverse areas of the lawas employment law, health law and environmental law ensured similarfates until they became generally recognised as specific fields of law. Theprocess of recognising a new area of the law is slow-moving, because itis connected with a fundamental process of change in society. Inherentin this process of transformation is the development of new behaviour-al patterns and forms of cooperation that seek acceptance. Whether aparticular field of law ought to be recognised as such is not an exact sci-ence. The process of identifying, designating and naming areas of thelaw is a complicated matter and is, to a certain extent, often arbitrary;there is no official recognition procedure. It is a process whereby legalpractitioners and academics determine that the law is increasingly beingapplied to a new area of society. According to Davis8, at the end of theday, the answer to the question of whether sports law is recognised asan independent area of the law may depend on the perceptions of thosepractising, teaching and conducting academic research into that sportslaw.

2.1. Assessment frameworkWhich factors or criteria can be applied in order to determine whetheran independent legal area exists?

Davis lists no fewer than eleven in his article. While these factors area guide, their meticulous application need not necessarily provide adefinitive answer to the question of whether an independent sports lawdiscipline exists. The factors are:1. unique application by courts of law from other disciplines to a spe-

cific context;2. factual peculiarities within a specific context that produce problems,

requiring specialised analysis;3. issues involving the proposed discipline’s subject matter must arise

in multiple, existing, common law or statutory areas;

1 Cf. Timothy Davis, ‘What Is SportsLaw?’, in: Marquette Sports Law Review,Vol. 11, Spring 2001, p. 211.

2 See also below under 3.1. Lex sportiva.3 By way of oratio pro domo.4 Cf. also below under 3.4. Lex ludica.5 Michael J. Beloff Q.C., ‘Is there a Lex

Sportiva?’, International Sports LawReview (2005) p. 49.

6 Matthew J. Mitten, Hayden Opie,‘“Sports Law”: Implications For TheDevelopment Of International,Comparative, And National Law AndGlobal Dispute Resolution’, Marquette

University Law School Legal StudiesResearch Paper Series, Research PaperNo. 10-31, June 2010, pp. 3-4 and n. 6, p.4.

7 The classical representative of this posi-tion is the eminence grise of sports law inEngland, Edward Grayson: ‘Sport andthe Law’, 2nd ed., London 1994, p.XXXVII. A recent publication in this tra-dition is, for example, Laura Donnellan,Sport and the Law: A Concise Guide,Dublin 2010.

8 Th. Davis, op.cit. supra n. 1, pp. 211-214.

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4. within the proposed discipline, the elements of its subject mattermust connect, interact or interrelate;

5. decisions within the proposed discipline conflict with decisions inother areas of the law and decisions regarding a matter within theproposed discipline impact another matter within the discipline;

6. the proposed discipline must significantly affect the nation’s (or theworld’s) business, economy, culture or society;

7. the development of interventionist legislation to regulate specificrelationships;

8. publication of legal casebooks that focus on the proposed discipline;9. development of law journals and other publications specifically devot-

ed to publishing writings that fall within the parameters of the pro-posed field;

10.acceptance of the proposed field by law schools; and:11. recognition by legal associations, such as bar associations, of the pro-

posed field as a separately identifiable substantive area of the law.

Davis himself has not applied this assessment framework explicitly andsystematically to sport. If we nonetheless apply the above criteria, whichare not always clearly formulated, to ‘sport and the law’ then there is nodoubt that we can conclude in 2011 that an independent area of the lawexists that is fully deserving of the name ‘sports law’.

The above listed factors particularly concern the internal cohesionwithin the area concerned and its own, special, independent charac-ter which distinguishes the area from the legal environment. This isprobably most systematically expressed in the term ‘sport specificity’that has been developed in the context of European law. This termindicates the extent to which the European Court of Justice in partic-ular has recognised exceptions to regular law, because in some casesthe rules of organised sport cannot be dispensed without this render-ing it impossible to complete sports competitions in a correct andproper fashion.9 A now classic example, in consequence of theLehtonen case10, is the recognition of only two periods during a com-petitive season within which professional footballers can move fromone club to another (in the summer, after the end of the season, andduring the so-called winter break).11 As such, this rule is contrary tothe freedom of movement of workers in the European Union, butwithout this rule there would be a risk of falsification of competitionbecause, for example, a club that is in danger of relegation could sud-denly and at the last moment be bolstered by an injection of funds byexternal backers which are not available to their competitors at thattime. This would compromise the existence of a fair and even com-petition for all participants. It is clear that the particular characteris-tics of sports organisations deserve special attention, which can leadto exceptions if these exceptions are unavoidable.12 Factors 1 and 2 areconsequently met. Conflicts (see factor 5) are not always settled infavour of the sports rule, however. A good example is the 6+5 ruleadopted by FIFA. The rule implies that only 5 foreign players may beselected per team in any match; the other players must be domesticplayers. This rule discriminates on the basis of nationality and cantherefore not be applied within the European Union. Such a rule isnot indispensable in order to guarantee a strong national team, forexample. Talented young or experienced domestic players can alsoimprove abroad. The Dutch national team is a good example of a teamcomprising many international players who ply their trade in the best

foreign leagues, thereby strongly benefiting the standard of the nation-al team. The special nature of sport is also expressed through the appli-cation of factor 7. There are many countries in the world with a gen-eral, national Sports Act. Such countries are generally considered asbelonging to the group of interventionists. The so-called Football Act(Voetbalwet) aimed at combating unwanted behaviour by supportersand other acts of vandalism is an example of special regulatory provi-sions in the Netherlands. The international community similarly makesits voice heard: anti-doping conventions have been accepted by theCouncil of Europe and UNESCO, for example.

There is also broad compliance with the other factors, which are part-ly of a practical rather than substantive legal nature, such as the publi-cation of legal casebooks, specialised journals, academic teaching andresearch, as well as the existence of specialised associations, at manyplaces around the world (see factors 8 to 11, inclusive).13

There is also sufficient institutional connection or interrelationshipin organised sport (cf. factor 4). Around the world organised sport isstructured pyramidically, with the universal organisations for each sport,such as FIFA for football and the IOC for Olympic sports, at the top.There is a ‘world court’ for sport, the Court of Arbitration for Sport(CAS) which is located in Switzerland, and a World Anti-Doping Agency(WADA), in which the international community is also officially a stake-holder. Which leaves factor 3, the second part of factor 5 and factor 6.Matters that are sport-related occur in many different fields of law. Sportslaw has an inter-disciplinary character, and according to this factor thatwould argue in favour of the existence of an independent field of lawrather than against it (factor 3). It is evident that internal decisions ofsports organisations sometimes impact on another matter within thefield of law of which the rules of organised sport form an inextricablepart. If, for example, FIFA were to repeal its agents’ rules, that wouldautomatically have repercussions for the rules relating to player trans-fers as a whole (factor 5.b). Finally, it goes without saying nowadays thatsport, and hence sports law, are of considerable economic, cultural andsocial importance at a national as well as international level. In England,professional football is labelled an ‘industry’, reflecting the fact that foot-ball has become a marketable product and a business sector in its ownright. Thanks to commercialisation and the sale of TV rights, huge sumsof money now pass hands in professional sport.14 Events such as theOlympic Games and the Football World Cup are watched by billionsof people around the world (factor 6).

In summary, there is sufficient phenomenological and legal inter-relationship and external distinctness to designate ‘sports law’ an inde-pendent substantive area of the law.

3. What is ‘sports law’?That such a thing as ‘sports law’ exists in 2011 would therefore appearto be a wholly justifiable position to take, at least when one adheres tothe assessment framework provided by Davis. The following questionmay now be asked: what is sports law, what are the elements of sportslaw, what can it be deemed to cover?

Firstly, however, an observation, in particular regarding the nature ofsports law. Beloff says that a distinction can be made between ‘horizon-tal law’ - a body of rules which applies across the full range of relevanthuman activity - and ‘vertical law’, which is a body of rules driven by asingle human activity. Torts or competition law fall into the first cate-

9 The concept of the “specificity of sport”has also become established beyondEuropean Sports Law (see below under3.6.) on a worldwide scale, for example inthe FIFA player’s status and transfer regu-lations, the rules of the FIFA DisputeResolution Chamber (DRC) and perti-nent CAS jurisprudence (cf., the Webster,Matuzalem and De Sanctis transfer “buy-out” awards of CAS).]

10 Case C-176/96.11 So-called transfer windows.12 Apart from that, in this author’s opinion,the old-fashioned tradition of one transfer

window (between two full competitions atthe start of the football season) would besufficient and fair, since it prevents thecomposition of teams being changed dur-ing the winter break which unduly dis-torts the initial balance of strengthbetween clubs during competition.]

13 Mitten and Opie (op.cit. supra n. 6, p. 3en noot 3) comment that in spite of thefact that almost all areas of the law - indi-vidually and in combination - regulatecompetition (including broad and impor-tant areas such as competition law, the lawof obligations, intellectual property law

and employment law), relatively few aca-demics teach sports law or are scholars ofsports law. According to the AALS (TheAssociation of American Law Schools)Directory of Law Teachers 2009-2010,there are only 120 professors teachingsports law, while more than 340 are spe-cialised in competition law, 1800 in con-stitutional law and 360 in employmentlaw. These three fields of law are the mainareas of public law regulating sport in theUnited States. So, there is scope for agreater focus on sport on these fields oflaw. See the website of the ASSER

International Sports Law Centre(www.sportslaw.nl. under ‘The Centre’)for a global listing of International andNational Sports Law Associations, SportsLaw Centres and Sports Law Journals.

14 Real Madrid, for example, tops the worldranking list of clubs in terms of annualturnover for 2010 with more than EUR438million. The total turnover of all pro-fessional clubs exceeded four billion eurosfor the first time last year (according todata from accountancy firm Deloitte, aspublished in NRC Handelsblad on 11February 2011).

gory. Sports law, like aviation law and banking law, falls substantiallyinto the latter.15

Focused literature research then reveals that the following distinc-tions are explicitly made or the following terminology is explicitly usedto designate sports law, or sections of it: lex sportiva, global sports law,transnational sports law, lex ludica, public international sports law (‘thelaw of nations of sport’) and European sports law. These categories arediscussed successively below. It is noticeable that the term ‘lex sportiva’repeatedly occurs in one meaning or another as if it were a benchmarkin this regard. Incidentally, all the authors are, of course, adherents tothe position that sports law does exist as an independent substantivearea of the law.

3.1. Lex sportivaNafziger comments that the arbitral decisions and opinions of the CASin practice provide guidance in later cases, strongly influence later awardsand often function as precedent. By reinforcing and helping to elabo-rate established rules and principles of international sports law, the accre-tion of CAS awards is gradually forming a source of that body of law.This source is referred to as ‘lex sportiva’. He adds that the concept ofa lex sportiva is normally limited to the case law of the CAS.16 Fosterpoints out that the CAS itself has recognised the existence of precedenteffect in accord with its own earlier arbitral awards. 17, 18

Casini says that the number of arbitral decisions made by the CAShas increased to the point that a set of principles and rules has devel-oped relating in particular to sport: this ‘judge-made law’ has been giventhe name ‘lex sportiva’. This name, which calls to mind well-known des-ignations such as ‘lex mercatoria’ or ‘lex electronica’, has been readilyadopted and its meaning has been extended over time, effectively inorder to refer more generally to the transnational law produced by sportsorganisations.19

Foster comments that in 2005 the CAS was not so sure whether aconcept of ‘lex sportiva’ exists at all. The CAS said that it was not pre-pared to take refuge in such uncertain concepts as that of a ‘lex sporti-va’, as had been advocated by various authors. The exact content andthe boundaries of the concept were still far too vague and uncertain toenable it to be used to determine the specific rights and obligations ofsports associations towards athletes20. Since this comment of the CASthere had been no further references to it in the published awards of theCAS until the recent arbitration of Anderson et al v IOC21, whichappeared to signal the acceptance that such a concept exists.22

Erbsen comments that the CAS has developed a fascinating body ofcase law that unfortunately has acquired a misleading name that obscuresits nuances. An increasingly popular interpretation of the history of theCAS in the first two decades of its existence suggested that the CAS had

created an entirely new body of international sports law called ‘lex sporti-va’. Commentators do not agree on what ‘lex sportiva’ means, but manyshare the belief that it exists. The term’s inscrutability increases its allure,combining the legitimising cachet of Latin with the malleability ofobscure concepts such as ‘lex’ and ‘sport’. Erbsen goes on to say that theconcept of a ‘lex sportiva’ cannot meaningfully describe or explain thejurisprudence of the CAS. When it was first used, the term evoked visionsof an emerging, new form of sports regulation that probably helped theCAS to gain recognition and establish itself as a respected and author-itative tribunal. The term has outlived its usefulness, however. Lex sporti-va has become a collective name that encompasses many different typesof lawmaking and unites a diverse collection of variables under an over-simplified motto. Descriptive and normative scholarship in relation tothe CAS would benefit from a more subtle interpretation of how theCAS has adapted general legal principles to the circumstances of dis-putes involving athletes and sports officials. According to Erbsen, theidea that the resolution of international sports disputes through arbi-tration is creating a ‘lex sportiva’ had gained increasing resonance overthe previous decade. The term ‘lex sportiva’, which was only thoughtup in 199023, now appears in the CAS’ official descriptions of itself, inthe case law of the CAS, in articles by academic specialists in sports lawand academics who study general international law, in textbooks, in lec-tures, speeches and presentations given by sports officials and informal-ly at academic conferences and gatherings of experts in this field. Thereis nonetheless considerable disagreement about the sources of law andthe forms of reasoning that are encompassed by ‘lex sportiva’, with Erbsenreferring in particular to Foster (see below) and Nafziger (see above).The increasing use of ‘lex sportiva’ as an amorphous euphemism forlegal innovations affecting international sport causes problems, he says.24

3.2. Global sports lawFoster wonders whether a definable concept called ‘international sportslaw’ exists and proposes that a distinction be made between ‘interna-tional sports law’ and ‘global sports law’. International sports law canbe applied by national courts. Global sports law, on the other hand,implies a claim of immunity from national law. Foster states that someauthors have used the concept of ‘lex sportiva’ in a superficial mannerto describe what is happening with the globalisation of sports law. Heargues that ‘lex sportiva’ should be equated to global sports law. To define‘lex sportiva’ as global sports law is to express that ‘lex sportiva’ is a labelfor permanent self-regulation by international sports federations. It isa claim for non-intervention by national legal systems as well as inter-national sports law and thus opposes the regulation of internationalsport by public law. Foster further explains his position that it is neces-sary to distinguish between the concepts of international and global

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15 Michael J. Beloff Q.C., op.cit supra n. 5,p. 52. For example, in the context of thetopical fight against sporting fraud, inparticular match fixing in relation to legalor illegal sports betting within the frame-work of national or international organ-ised crime, a distinction can be madebetween measures that are horizontallyapplicable (e.g.to episodes of corruptionin the private sector, independently of thedifferent business sectors concerned) andmeasures that have been specificallyadopted to address sporting fraud andmatch fixing in particular (‘vertical law’);cf., Negotiated procedure EAC/25/2011,Study on the legal framework applicableto sporting fraud, notably match-fixing,in the EU Member States, EuropeanCommission, Directorate-General forEducation and Culture, Annex 1 - Termsof Reference, para. 3.2., p. 4.

16 James A.R. Nafziger, ‘Lex Sportiva’, in: 1-2The international Sports Law Journal(ISLJ) (2004) p. 3; also included under thetitle ‘Lex Sportiva and CAS’ in: Ian S.Blackshaw, Robert C.R. Siekmann and

Janwillem Soek (eds), The Court ofArbitration for Sport 1984-2004, TheHague 2006, p. 409. See also: James A.R.Nafziger, International Sports Law, NewYork 2004, p. 48.

17 Devyatovski v IOC, 2009 A 1752.18 Ken Foster, ‘Lex Sportiva: TransnationalLaw in Action’, in: 3-4 The InternationalSports Law Journal (ISLJ) (2010), p. 20;paper presented during the Lex SportivaConference at Pelita Harapan Universitas(UPH), on 22 September 2010 in Jakarta,Indonesia, organised in collaborationwith the Indonesia Lex Sportiva Institutaand with the support of the Ministry ofForeign Affairs of Indonesia, the NationalOlympic Committee, the T.M.C. AsserInstituut and the Indonesian footballleague.

19 Lorenzo Casini, ‘The Making of a LexSportiva:The Court of Arbitration forSport Der Ernährer’’, Draft paper for theMax Planck Institute InternationalConference on ‘Beyond Dispute:International Judicial Institutions as Law-Makers’, Heidelberg, June 14-15, 2010, p.

3 (the most recent version appeared asIILJ International Law and JusticeWorking Paper 2010/5 under the title‘The Making of a Lex Sportiva: TheCourt of Arbitration for Sport ‘TheProvider’’, see: http://www.iilj.org/publi-cations/2010-5.Casini.asp; the final ver-sion appeared under the title ‘TheMaking of a Lex Sportiva by the Court ofArbitration for Sport’ in German LawJournal (GLJ) 2011Vol. 12No. 05, pp.1317-1340.

20FIFA v WADA, CAS 2005/C/976 and986.

21 CAS 2008/A/1545.22Ken Foster, op.cit. supra n. 17, p. 20.However, see previously also,CAS/2004/A/704, suggesting that CASdecisions constitute a ‘lex sportiva’ thatsubsequent CAS panels should consider.

23MacLaren says that the term ‘lex sportiva’was coined by the acting SecretaryGeneral of the Court of Arbitration forSport. Matthieu Reeb, at the time of thepublication of the first Digest with awardsof the CAS in the period 1986-1998

[Berne, 1998], in: Richard H. McLaren,‘The Court of Arbitration for Sport: AnIndependent Arena for the World’s SportsDisputes’, Valparaiso University LawReview (2001) p. 379, footnote 11; in theintroduction to the Digest of CAS AwardsII 1998-2000 [TheHague/London/NewYork, 2002], Reebwrites that the Digest of CAS Awards1986-1998 recorded the creation of a lexsportiva through the arbitral awards of theCAS (p. XXX). The term ‘lex sportiva’ isnot a pure Latinism, since the adjective‘sportiva’ is not Latin, the term ‘lex sporti-va’ obviously was created by analogy withlex mercatoria; see generally, Boris Kolev,‘Lex Sportiva and Lex Mercatoria’. In:The Interational Sports Law Journal(ISLJ) 2008/1-2, pp. 57 and 60-62.

24Allan Erbsen, ‘The Substance and Illusionof Lex Sportiva’, in: Ian S. Blackshaw,Robert C.R. Siekmann and JanwillemSoek (eds), The Court of Arbitration forSport 1984-2004, The Hague 2006, pp.441, 443-444.

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sports law as follows. International law deals with the relations betweenstates. International sports law can therefore be described as the princi-ples of international public law that are applicable to sport. Global sportslaw, by contrast, can be provisionally defined as a transnationalautonomous legal order created by the global private institutions thatgovern international sport. Its main characteristics are, firstly, that it isa contractual legal order and, secondly, that this legal order is not gov-erned by national legal systems. It could therefore be described as a legalorder ‘without a state’. It is a sui generis set of principles that have devel-oped from transnational legal norms based on the rules of internation-al sports federations and the interpretation of those rules. This is a sep-arate legal order that, from a global perspective, is autonomous. It impliesthat international sports federations cannot be regulated by nationalcourts and governments. They can only be regulated by their own inter-nal institutions or by external institutions which they themselves haveinstalled or mandated for that purpose. Foster considers the fundamen-tal distinction between international and global sports law to be cru-cially important. He reports that various authors have recently arguedfor the distinctiveness of international sports law and in doing so havedescribed it as ‘lex sportiva’. This usage confuses and merges interna-tional sports law with global sports law, contrary to his own definitions.25

Foster comments further that one of the claims made for the workof the CAS is that it is developing a ‘lex sportiva’. The jurisprudence ofthe CAS is an ‘international sports law’, it is argued. It involves morethan the application of international law or of general legal principlesto the resolution of sports disputes. A distinct jurisprudence is emerg-ing, it is claimed: a unique set of universal legal principles that is usedby the CAS in its adjudications. According to Foster, the concept ‘lexsportiva’ is an imprecise term covering several different concepts. It canbe helpful to distinguish different uses. The ‘lex sportiva’ is little morethan the proper interpretation and application of the regulations ofsports organisations - a lex specialis that is applicable to the governanceof international sport because its source exists in the constitutional ordercreated by sports federations to administer sport. In a wider sense, the‘lex sportiva’ can be extended to those general principles that can bederived from the diverse practice of sports federations and the rules andregulations by which they govern themselves. This is a restricted, butspecific use of the concept of ‘lex sportiva’. Foster says that it correspondsroughly to his own definition of a global sports law, which he equateswith ‘lex sportiva’. This concept has several important elements. It isessentially a transnational autonomous private legal order. This legalorder is constituted by the regulatory and constitutional order estab-lished by international sports federations. It was created by and has itorigin in the private global institutions that govern sport and consistsof custom and practice of international sporting federations. Globalsports law is a private system of governance with its own global forum,the CAS.26

Casini says that sport rules are genuine ‘global law’, because they arespread across the entire world, they encompass both international andnational levels and they directly affect private actors. Hence the globaldimension of sport is, in the first place, normative. A ‘global sports law’has emerged, which consists of the whole body of norms and standards

that have been set and are implemented by sports organisations. Globalsports law encompasses the rules that have been set by central sportsinstitutions such as the IOC, the international sports federations andWADA, and by national sports associations such as national OlympicCommittees and national anti-doping organisations. Global sports law,therefore, is highly heterogeneous. Casini uses the term ‘lex sportiva’ inthe broad meaning of ‘global sports law’. So the term ‘global sports law’includes all the definitions that academics have so far provided to describethe principles and rules of sports organisations.27

3.3. Transnational sports lawLatty analyses the self-regulation of transnational sport taking the con-cept of ‘transnational law’ as the starting point: law made by private par-ties, without the intervention of states and across their borders, andintended to regulate activities in the community concerned. This analy-sis shows that the ‘lex sportiva’ is constructed from the legal systems ofthe international sports federations which are, to a certain extent, cen-tralised by the legal order of the International Olympic Committee(IOC), assisted by the activities of the Court of Arbitration for Sport(CAS) and the World Anti-Doping Agency (WADA). The ‘lex sporti-va’ is comparable to the ‘lex mercatoria’ and the canon law of the glob-al Catholic Church. They constitute global, extra-nationally applicablerules. Latty evaluates the degree of autonomy of the ‘lex sportiva’. Largelyfreed from national rules and only embodied in a decentralised inter-national legal order, the ‘lex sportiva’ is nonetheless substantially restrict-ed by European law.28

3.4. Lex ludicaAccording to Foster, the rules of the game (‘sporting law’) can be dis-tinguished as an independent set of norms and standards, separate fromthe concept of ‘lex sportiva’. He proposes to call these principles ‘lexludica’.29 They encompass two types of rules that are unique because ofthe context of sport in which they occur and are applied. One type cov-ers the actual rules of the game and their application, or enforcement,by referees and other match officials. The second type is what can betermed the ‘sporting spirit’ and covers the ethical standards that shouldbe respected by sportsmen and women. So, the concept of ‘lex ludica’includes both the official rules of the game and the principle of fair playin sport. They are principles of ‘internal’ sports law and governance.30

3.5. Public international sports lawWax points out that public international sports law, a central compo-nent of international sports law, has so far received little attention.Defined in a positive manner, public international sports law can beconsidered as including all norms of international public law that areapplicable to legal issues concerning sport and according to which thesubjects of international public law allow themselves to be directly orindirectly governed. Defined in a negative manner, public internation-al sports law includes all norms that are not connected with the rulesand regulations of national and international sports organisations, EUsports law or national sports law. Public international sports law relatesin particular to the following four areas: the struggle against apartheidand other forms of discrimination in sport, peacekeeping during theOlympic Games and preventing and combating violence in connectionwith sporting events (matches), the prevention of and fight against dop-ing in sport and the question of recognising a ‘right to sport’ as a humanright. These four areas can, in turn, be subdivided into two categories.The struggle against apartheid (against racism in general) and otherforms of discrimination, the question of the recognition of a ‘right tosport’ as a human right as well as the prevention of and fight againstdoping in sport involving the actual practice of sport: in these cases, itis possible to refer to a public international sports law ‘in the strict sense’of the term. Peacekeeping during the Olympic Games and preventingand combating violence in connection with sporting events (matches)by contrast do not pertain to the practice of sport as such, but are direct-ly related to them (in a spatial sense). This category involves public inter-national sports law ‘in the broader sense’.

Public international sports law is a key component of internationalsports law. At a time when sport is becoming increasingly ‘juridified’,

25 Ken Foster, ‘Is There a Global SportsLaw?’, in: Entertainment Law, Vol. 2, No.1, Spring 2003, pp. 1-2, 8.

26Ken Foster, ‘Lex Sportiva and Lex Ludica:The Court of Arbitration for Sport’sJurisprudence’, in: Ian S. Blackshaw,Robert C.R. Siekmann and JanwillemSoek (eds), The Court of Arbitration forSport 1984-2004, The Hague 2006, pp.420-421.

27 Lorenzo Casini, op.cit. supra n. 18, pp. 2-4.

28 Franck Latty, ‘Transnational Sports Law’(to appear in: 1-2 The InternationalSports Law Journal (ISLJ) (2011), paperpresented during the Lex SportivaConference at Pelita Harapan Universitas(UPH), on 22 September 2010 in Jakarta,

Indonesia, organised in collaborationwith the Indonesia Lex Sportiva Institutaand with the support of the Ministry ofForeign Affairs of Indonesia, the NationalOlympic Committee, the T.M.C. AsserInstituut and the Indonesian footballleague. See also: Franck Latty, La lexsportiva - Recherche sur le droit transna-tional, Études de Droit InternationalVolume 3, Leiden-Boston 2007.

29 In the CAS award AEK Athens and SKSlavia Praha v UEFA, ‘lex ludica’ isdescribed as a set of unwritten legal prin-ciples, a sort of lex mercatoria for sports(CAS 1998/200 at para. 156); see also,CAS 2009/A/1768 at para. 5.2, with refer-ence to CAS 1998/200.]

30 Ken Foster, op.cit. supra n. 24, p. 421.

public international sports law is the appropriate means of correctionfor which the internationalisation of sport currently has a need. On theone hand the statutes and regulations of the international sports organ-isations find their ‘doubles partner’ in public international sports lawfor the regulation of international sport. On the other, public interna-tional sports law is the suitable instrument for regulating internationalsport in precisely these areas (and hence for achieving its goals) whichdepending on the nature of the issue manage to evade the powers of thesports organisations, argues Wax.31

3.6. European sports lawDoes such a thing as European (EU) sports law exist? Weatherill saysthat the simple answer to this question is ‘yes’, but that simple answerstend to be misleading, and that this is the case here, too. There is sucha thing as EU sports law in the sense that since the entry into force ofthe Lisbon Treaty on 1 December 2009, sport has been explicitly recog-nised as an area in which the European Union has authority to inter-vene. However, this observation can be misleading in two quite differ-ent senses. Firstly, it ignores the fact that while December 2009 was cer-tainly a notable milestone in the shaping of EU sports law, the relevantnewly introduced Treaty provisions are in fact cautiously drafted andlimited in their scope. They emphatically do not elevate the EU to theposition of ‘sports regulator’ in Europe. So one should not get too excit-ed about these provisions. Secondly, a focus solely on the Treaty reformsof 2009 fails to recognise that for some 35 years the EU has already exert-ed an influence on sports governance in Europe. Beginning with itsfamous judgment in Walrave and Koch in 1974, the European Court ofJustice has subjected sport to the requirements of what was thenCommunity (EC) law and is now EU law, in so far as it constitutes aneconomic activity. So sport was not brought within the explicit scopeof the EU Treaties until December 2009, but well before that date, sport,though unmentioned by the Treaty, was required to comply with itsrules in so far as it constituted an economic activity. That meant, pri-marily, that sporting practices were to be tested against the prohibitionsin the Treaty against practices which are contrary to fair competition,which obstruct inter-State trade or which discriminate on the basis ofnationality. So an EU sports law (of sorts) has developed as a result ofthe steady accretion of case law where sporting rules exerted an econom-ic effect and interfered with the fulfilment of the EU’s mission. The EUdid not stipulate how sport should be organised, but it did rule outchoices that contravened the Treaty. The core of EU sports law is there-fore an established pattern with sporting practices being checked todetermine whether they comply with the commercial law of the EU,and most clearly in relation to freedom of movement and competitionlaw. When making this assessment the special characteristics of sporthave always been taken into account, and since 2009 that is explicitlyrecognised in the Lisbon Treaty. However, EU law is anything but broadin scope. There is very little legislation at EU level that pertains direct-ly to sport, and its ‘negative’ effect - the Treaty prohibitions - is prima-rily focused on practices which are anti-competitive or which obstructinter-State trade. The EU has little to do with determining propertyrights, contract law or crime. So there is such a thing as European, orEU, sports law; it is of practical and intellectual interest, but it is quitedifferent from and far less systematic and comprehensive than one wouldexpect of sports law at national level.32

3.7. SummaryA further analysis of the above overview of the different views aboutwhat ‘sports law’ is, what forms part of it, reveals the following picture.The first thing to note is that the concept of a ‘lex sportiva’ evidentlyplays a crucial role. It is also the oldest term in the debate. However, dif-ferent authors interpret it differently. Nafziger adheres to the ‘classical’view that the concept of a ‘lex sportiva’ is restricted to the ‘judge-madelaw’ of the CAS. Erbsen, incidentally, is of the opinion that the term isan unfortunate choice. He also observes that different meanings areattached to ‘lex sportiva’, which does nothing to aid clarity in relationto it.

Foster has introduced the concept of a ‘global sports law’, suggestingthat the concept of a ‘lex sportiva’ be equated with it. Latty talks of a‘transnational sports law’ in this connection. Both essentially under-stand the same thing by it, namely the rules and institutions of the inter-national sports organisations and the accompanying jurisprudence, orcase law. Their interpretation of the concept ‘lex sportiva’ is thereforebroader than that of Nafziger since it covers more than just the jurispru-dence of the CAS. In addition, Foster uses the term ‘lex ludica’ to referchiefly to the rules of the game themselves.

Wax has emphasised the importance of assigning public internation-al sports law its own place within international sports law. Finally,European (EU) sports law can be distinguished as a regional public vari-ant (Weatherill).

4. A reassessment of content and terminology

4.1. ContentIt is evident from the above that the debate in literature concerning what‘sports law’ is has so far taken place in a manner that is barely conduciveto creating clarity. There is still no cohesive vision that systematicallycompares and assigns a place to all possible elements and aspects. Thepurpose of this contribution to the debate is therefore to introduce struc-ture in terms of content and terminology so as to engender a reassess-ment of them which will dispel the existing lack of clarity regarding thesubject matter.

First and foremost, it may therefore be assumed that ‘sports law’ (or‘a’ or ‘the’ sports law, if one wishes) does exist as a separately identifiablefield, and hence substantive area of, the law. The concept ‘sports law’ isnevertheless made up of the elements ‘sport’ and ‘law’. It is ‘the law ofsport’. The first question is therefore: what do we understand by ‘sport’in this connection? This is followed by the question of what we under-stand by ‘law’ in this context.

What is ‘sport’? In order to answer this question there is no need hereto further examine existing (abstract) definitions of the concept of ‘sport’and the choice between them. We can limit ourselves in this connec-tion to referring functionally to one of the factors in the assessmentframework of whether sports law exists, namely: that the various aspectsof the subject matter in question connect, interact or interrelate (factor4). The existence of such a connection, interaction or inter-relationshipis most clearly evident in the institutional structure of organised sport.Organised sport is transnational by nature. National associations foreach sport are affiliated with regional, continental and international,global sports federations. This produces a pyramid, with, taking footballas an example, in the Netherlands the Dutch football association, theKNVB, regionally UEFA and globally FIFA in charge. Organisationallyand administratively, the sports world spans national borders. In addi-tion to national championships, there are also European and worldchampionships in each sport. Alongside this there exists an OlympicMovement and there are Olympic Games which unite all Olympic sportsrecognised as such, with the IOC at the head. Both nationally and inter-nationally, organised sport constitutes an independent social sector.‘Sports law’ therefore pertains above all to the law that applies to organ-ised sport represented in the structure as outlined.

This can be both amateur and professional sport. It encompasses, atall levels of the pyramid, competitive sport in which championships canbe contested and won. This means that recreational sports or leisuresports that are not practised competitively or in any organised sense,however important they may be from a social perspective, will not ini-

8 2011/3-4

31 Andreas Wax, ‘Public InternationalSports Law - A ‘Forgotten’ Discipline?’,in: 3-4 The International Sports LawJournal (ISLJ) (2010), pp. 25, 28; paperpresented during the Lex SportivaConference at Pelita Harapan Universitas(UPH), on 22 September 2010 in Jakarta,Indonesia, organised in collaborationwith the Indonesia Lex Sportiva Institutaand with the support of the Ministry ofForeign Affairs of Indonesia, the NationalOlympic Committee, the T.M.C. AsserInstituut and the Indonesian footballleague. See also: Andreas Wax,

Internationales Sportrecht - Unter beson-derer Berücksichtigung desSportvölkerrechts, Tübinger Schriftenzum internationalen und europäischenRecht Band 90, Berlin 2009.

32 Stephen Weatherill, ‘Is There Such aThing as European Sports Law?’, in:Global Sports Law and Taxation Reports(GSLTR) 2010/1; also in: TheInternational Sports Law Journal (ISLJ)(2011) pp. 38-41. See also: StephenWeatherill, European Sports Law:Collected Papers, The Hague 2007.

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tially be studied in the context of sports law. That is not to rule out thestudy of this type of practice of sport, which may also include physicaleducation at school, in advance, however. But there is little sense in con-ducting an academic debate about the precise definition of the conceptof sport in this regard. The boundaries are fluid. There is also a grey areabetween what constitutes ‘sport’ and what is simply a ‘game’. A responsemust naturally be formulated where an issue of law arises in relation towhat constitutes a ‘game’ also. A person who goes out jogging on theroad in an independent capacity only needs to observe the rules of theroad and is not subject to any sporting rules. The essence of sport, andhence of sports law, is to be found however in the sport that is encom-passed by the most suitable response to the question in factor 4 of theassessment framework.

That brings us to the question of what ‘law’ is in relation to ‘sport’.In principle it can be stated that in the widest sense (lato sensu) all ‘law’that pertains to ‘sport’, as the latter concept is explained further above,constitutes ‘sports law’, is ‘sports law’. So this includes not just all therules and regulations that have been drawn up by organised sport itself,but also all other law that has been accepted by national states and theinternational community in order to regulate ‘sport’. This is supple-mented by the combined jurisprudence of courts or other law-admin-istering bodies of organised sport itself as well as that of ‘ordinary’courts33, both national and international. If we label the law of sportitself as the ‘private’ part of sports law then it seems obvious to desig-nate all other law as ‘public’. Naturally, the private, or autonomous part,has a public base: it concerns the application of general public law, inparticular in the context of the law of associations, to the specific socialsector known as sport or it is law that has, at least by definition, beencreated in the public context. Sports organisations too cannot disen-gage themselves from the regular jurisdictions of which they are a part.If one were to bring together all existing law within a single frameworkcontaining the various areas of the law and then were to introduce sportinto this framework, a picture (configuration) would emerge compris-ing a great many blank spots of varying severity. These are all those areasthat are not covered by ‘sports law’ or where the law has not been appliedto sport. The International Court of Justice and the InternationalCriminal Court in The Hague, for example, have never yet had anyinvolvement with sport, nor is it really conceivable that it should,although nothing should be ruled out in advance, of course.34 Sportslaw therefore relates solely to a single, specific social sector.

Although the public part of sports law is of an incidental nature andthe private part structural, we choose to begin with a further explana-tion of what can be considered as belonging to the public part becausethis relates to the environment of sport, how it is placed within a broad-er social framework, and is by definition of a higher legal order. Therules and regulations which sport has set itself are intended to legislate

the sector from within and therefore constitute the private core or essenceof sports law. The public part can be divided into national and interna-tional sports law. The clearest example of national sports law in a pub-lic sense is the national Sports Act which exists in some fifty countries.There are also countries that have included a provision on sports law intheir Constitution.35 This is legislation of general application that isintended to define the position of sport in society and hence to regu-late the relationship between government and sport (‘sport governance’).It is customary to distinguish between interventionist and non-inter-ventionist countries.36 The Netherlands belongs to the latter group andtherefore has no provision in its Constitution, let alone a Sports Law.Within Europe it is the southern countries such as France, Portugal,Italy and Spain where governments traditionally have more involve-ment with sport. Countries where sport is still in its infancy in terms oforganisation and/or where sports law is still in the first stage of devel-opment attach great importance to having a Sports Law. Indonesia andChina are random examples in this regard.37 Apart from national, gen-eral Sports Laws there are also examples of special legislation aimed ata particular field. A well-known example is the Dutch law that specifi-cally targets football hooliganism, also commonly referred to as theFootball Act, and which has been drafted along the same lines as itsEnglish counterpart.38 There are also special Anti-Doping Laws in Europeand elsewhere.39 An example of national sports legislation that causeda lot of commotion at the time of the 2010 Football World Cup in SouthAfrica is the criminalisation of participation in acts of ambush market-ing (the ‘Bavaria girls’).

In addition to public national sports law, there also exists public inter-national sports law. The revival of the ekecheiria, the longest lasting trucein history and hence international law from the earliest times (in thefield of sport), has seen the United Nations engage in internationalpeacekeeping during the Olympic Games of the modern era through aseries of resolutions which since 1993 have consistently been passed witha view to preserving the ‘Olympic Peace’ at the forthcoming OlympicGames. 40 Between 1968 and 1993, standard resolutions against apartheidin sport were adopted by the General Assembly of the United Nations.1977 saw the adoption in New York of the International Declarationagainst Apartheid in Sports, followed by a corresponding UNConvention in 1985. The UN Security Council imposed a sports boy-cott against South Africa due to apartheid. The global UNESCOConvention of 2005 aims to combat doping in sport. At a regional level,the Council of Europe adopted an anti-football hooliganism conven-tion as early as 1985, followed by an anti-doping convention in 1989.41

And the sports provision in article 165 of the Lisbon Treaty is anotherrecent example of ‘public regional sports law’ which can, incidentally,be classified under European (EU) sports law.42 At EU level also sportsboycotts have been imposed in the past, an example being that against

33 Civil courts as well as criminal courts.34 Cf. as an example of a ‘casus belli’ - in thenew meaning of legal proceedings on war- an event such as the border conflictwhich El Salvador and Honduras wagedwith one another in the 1960s following aseries of football matches which escalatedout of control (casus belli in the tradition-al sense) (see: Richard Kapu�ci�ski, TheSoccer War (Wojna futbolowa), 1978.

35 See: Janwillem Soek, ‘Sport in NationalSports Laws and Constitutions:Definition, Ratio Legis and Objectives’,in: The International Sports Law Journal(ISLJ) 2006/3-4, pp. 28-31 and 33-35.

36 André-Noël Chaker, Good governance insport - a European survey, Council ofEurope Publishing, Strasbourg 2004, pp. 9-11.

37 See: Law Number 3 Year 2006 of theRepublic of Indonesia concerningNational Sports System. In China, the1995 Sports Law is currently beingreviewed, see James A.R. Nafziger and LiWei, ‘China’s Sports Law’, in: The

American Journal of Comparative Law,Volume XLVI, Summer 1998, Number 3,pp. 453-483.

38 See: Peter T.M. Coenen, ‘At Last, aFootball Law in the Netherlands?’, in:The International Sports Law Journal(ISLJ) 2009/3-4, pp. 59-61 and 64-65;Geoff Pearson and Mark James, ‘TheLegality and Effectiveness of UsingFootball Banning Orders in the Fightagainst Racism and Violence at SportsEvents’, in: Simon Gardiner, RichardParrish, Robert C.R. Siekmann (eds), EU,Sport, Law and Policy: Regulation, Re-regulation and Representation, TheHague 2009, pp. 535-554.

39 See: Hans-Georg Koch in: Klaus Viewegand Robert Siekmann (eds.), LegalComparison and the Harmonisation ofDoping Rules - Pilot Study for theEuropean Commission, Beiträge zumSportrecht Band 27, Berlin 2007, pp. 95-158 (Part II.B: Public Law).

40Andreas Wax, op.cit. supra n. 31, p. 26.Francis G. Jacobs, ‘Tourism, sports and

other forms of leisure from the point ofview of international law, General reporton the twenty-fourth A.A.A. Congress’,Nicosia, 22 to 27May 1972, Annuaire del’A.A.A./Yearbook of the A.A.A. 1972/73Volume 42/43, La Haye/The Hague 1975,p. 52, says that the Games of Greek antiq-uity were an early example of the influ-ence of sport on the development of inter-national law and that these Games cantherefore also be seen as one of the firststeps towards the creation of true interna-tional law between ethnically related, butcompletely autonomous city states.

41 For the activities of the Council of Europein the field of sport, see: Robert C.R.Siekmann and Janwillem Soek (eds), TheCouncil of Europe and Sport: BasicDocuments, The Hague 2007. Regardingthe combating of football hooliganism inthe European Union, see: ‘FootballHooliganism with an EU Dimension:Towards an International LegalFramework’, Final Report AGISProgramme 2003, T.M.C. Asser Instituut,

The Hague 2004; also: Hans Mojet andRobert Siekmann, ‘Legal Aspects ofCombating Football Hooliganism inEurope’, in: Simon Gardiner, RichardParrish, Robert C.R. Siekmann (eds), EU,Sport, Law and Policy: Regulation, Re-regulation and Representation, TheHague 2009, pp. 499-533.

42 See: Robert Siekmann and Janwillem Soek(eds), The European Union and Sport:Legal and Policy Documents, The Hague2005; see in particular regarding the‘sports article’ in the Lisbon Treaty:‘Lisbon Treaty and EU Sports Policy’,Study for the European Parliament, com-missioned to the T.M.C. Asser Instituutand Edge Hill University andLoughborough Universities, September2010. See also, Stephen Weatherill,‘Fairness, Opennes and the SpecificNature of Sport: Does the Lisbon TreatyChange EU Sports Law?’, in: TheInternational Sports Law Journal (ISLJ)2010/3-4, pp. 11 and 14-17. For a compari-son of types of ‘continental sports law’ see:

Nigeria.43 Finally, reference is made in this connection to the interna-tional Nairobi Treaty on the protection of the Olympic Symbol of thefive rings (1981).

The rules and regulations which sport has set itself in a self-regula-tory capacity (the private, autonomous, non-governmental part of sportslaw) can be divided firstly into Olympic law and the law of the nation-al, regional and international organisations for each sport. 44 The law ofthe Olympic Movement (Lex Olympica) is laid down in the OlympicCharter and everything associated with it.45 The law of the sports organ-isations can be divided into the rules of the game (in football: Laws ofthe Game), which are identically applicable around the world, on theone hand, and Constitutions, rules and regulations pertaining to admin-istrative (institutional) and thematic aspects of the sport concerned, onthe other. The competition regulations can also be included in this cat-egory.46 Many rules have a transnational character, meaning that theyare compulsorily applicable up to national level, or ought to be convert-ed into a corresponding set of national rules and regulations. A goodexample in this regard, in the anti-doping field, is the WADA Code,which to a certain extent can also be characterised as ‘semi-public’ becausenational governments are officially involved in administering the WADAand the Code has effectively been legitimised by the UNESCOConvention against doping in sport.47 The doping rules of theNetherlands Institute of Sports Judicial Administration (NederlandseInstituut Sportrechtspraak) are an almost entirely faithful copy of theWADA Code, which must therefore be largely or fully complied within its application. In the past each national sports association and inter-national sports federation had its own doping rules, until, in 2004, har-monisation was achieved by means of the WADA Code.48 Further well-known examples, in the field of football, are the rules regarding the sta-tus and transfer of professional footballers and regarding players’ agents,which are about to be abolished as such.49 At a regional level, referencecan be made, for example, to the safety and security regulations of UEFA,the European football federation, which are of particular importancein combating football hooliganism.

In sport, the role fulfilled by criminal law and ‘ordinary’ courts incivil disputes in regular society is assigned to disciplinary bodies andforms of arbitration at the various geographical levels for each sport.50

In this system, the Court of Arbitration for Sport performs the generalfunction of ‘International Court for Sports’, while also acting as theappeal court in doping cases and ad hoc during Olympic Games.51

Football has its own important international body for resolving disputesin transfer matters: FIFA’s Dispute Resolution Chamber.52

4.2. Terminology‘Sports law’ can therefore be considered as consisting of public and pri-vate national, regional and international (in the sense of: universal, glob-al) sports law. Strictly speaking, the term ‘lex sportiva’ could be used tocover the concept of sports law in its entirety, since ‘lex sportiva’ meansliterally ‘sports law’ and as such is a neutral designation. The ‘exotic’

Latin nature of the name means it could also be deemed ideally suitedto this designation, since this lends it a very clearly distinctive and exclu-sive character (cf. lex mercatoria). The term purportedly underlines thatsports law is something distinct, a separately identifiable field, and hencesubstantive area of, the law. However, several objections may be raisedagainst the use of ‘lex sportiva’ in this general, broad meaning. For exam-ple, that this innovation goes too far, leading as it does to further ter-minological confusion, and that is in no one’s interest. From a purelyacademic perspective this may be correct: after all, every researcher isentitled to develop his own, new conceptual framework as well as whathe considers to be appropriate terminology in that regard, provided hegives his reasons for doing so. In this case, however, it would not be verypractical to act in this way. Firstly: sports law, or sections of it, is nottaught at university level anywhere under the name ‘lex sportiva’.53 Inliterature, moreover, we find agreement on one thing at least, namelythat ‘lex sportiva’, while it may not pertain exclusively to the jurispru-dence of the highest judicial body in sport, the CAS (Nafziger), nonethe-less in any event encompasses nothing more than the autonomous rulesof organised sport itself and the associated jurisprudence (private sportslaw) (Foster, Latty). It is important not to disrupt a conceptual frame-work that has already developed and about which, as in this case, con-sensus exists to a certain extent, in advance with one’s own brand of rea-soning. A pragmatic approach is preferable here. In the private mean-ing, ‘lex sportiva’ is ‘global sports law’ (Foster), or even better ‘transna-tional sports law’ (Latt), which should then not be limited in its mean-ing to the global, or at least the international and regional level. Lexsportiva can - to continue the Latin terminological thread - indeed besaid to consist of lex sportiva internationalis (universalis), regionalis andnationalis. Thanks to the transnational, cross-border, or even suprana-tional character, if one will, of the private part of sports law, this part ofsports law constitutes de facto a single, continuous body of law. Anyonereferring in a general sense to international sports law is implicitly alsoreferring to its national variant. Unlike international public law, privatesports law knows no boundaries. There is nothing comparable to thesovereignty of national states in the sports world. While sport may beorganised along national lines, the boundaries between the associationsare in effect nothing more than dotted lines (by comparison, nationalboundaries rather are solid lines). The clearest example of this is pro-vided by the rules of the game for each sport. The rules of football asadopted and expounded by FIFA are the same all over the world, mak-ing it unique.

As law consists not just of legislation, but also of jurisprudence, orcase law (‘judge-made law’), I prefer the meaning of the use of ‘lex sporti-va’ in the broad sense rather than the use of the term in the strict sense(CAS). Law, however, is not just formal, written law, but also practiceout of which customary law may have arisen. This is addressed rarely,if at all, in the ‘sports law debate’, however. But this source of law canalso operate in the private sector. An interesting example of the ques-tion of whether customary law can be said to exist is provided by the

10 2011/3-4

James A.R. Nafziger, ‘A Comparison ofthe European and North AmericanModels of Sports Organisation’, in: 3-4The International Sports Law Journal(ISLJ) (20080 pp. 100-108; see also:Stephen Weatherill, ‘Resisting thePressures of “Americanization”: TheInfluence of European Community Lawon the “European Sport Model”‘, in: S.Greenfield and G. Osborn (eds), Law andSport in Contemporary Society, London2000, p. 155 et seq.; also included in:Stephen Weatherill, European Sports Law:Collected Papers, The Hague 2007, pp.155-176. See in general also, Robert C.R.Siekmann and Janwillem Soek, ‘Towards aTypology of (International) ComparativeSports Law (Research)’, in: TheInternational Sports Law Journal (ISLJ)2011/1-2, pp. 41-51 and 54.

43 See: R.C.R. Siekmann, ‘The SportsBoycott of Nigeria: Sports, Politics and

Human Rights’, in: The InternationalSports Law Journal (ISLJ) 2008/1-2 pp.121-124.

44A distinguishing feature of internationalsports federations (Ifs) amongst (private)international organisations is their ‘nor-mative’ functions, which possibly con-tributes one more, minor argument toconsider ‘sports law’ as a separate area oflaw]

45 See: Alexandre Miguel Mestre, The Lawof the Olympic Games,The Hague 2009.

46See: Robert C.R. Siekmann and JanwillemSoek (eds), Basic Documents ofInternational Sports Organisations, TheHague/Boston/London 1998.

47 See: Lorenzo Casini, ‘Global HybridPublic-Private Bodies: the World Anti-Doping Agency (WADA)’, in:International Organizations Law Review6 (2009) pp. 421-446; See also, RobertC.R. Siekmann, ‘Anti-Doping Law in

Sport: The Hybrid Character of WADAand the Human Rights of Athletes inDoping Cases (ProportionalityPrinciple)’, in: The International SportsLaw Journal (ISLJ), pp. 89-96.see in gen-eral: Paul David, A Guide to the WorldAnti-Doping Code - A Fight for the Spiritof Sport, Cambridge 2008.

48Robert C.R. Siekmann, Janwillem Soek,Andrea Bellani (eds), Doping Rules ofInternational Sport Organisations, TheHague 1999. See also: Janwillem Soek in:Klaus Vieweg and Robert Siekmann (eds),Legal Comparison and the Harmonisationof Doping Rules - Pilot Study for theEuropean Commission, Beiträge zumSportrecht Band 27, Berlin, pp. 159-561(Part III: Sport Rules and Regulations).

49 See Robert C.R. Siekmann, RichardParrish, Roberto Branco Martins,Janwillem Soek (eds), Players’ AgentsWorldwide: Legal Aspects, The Hague

2007; see also, Roberto Branco Martinsand Gregor Reiter, ‘Players’ Agents: Past,Present …Future?’, in: The InternationalSports Law Journal (ISLJ) 2010/1-2, pp. 7-12. Roberto Branco Martins is initiator anddirector of the Dutch professional footballplayers’ agents association ProAgent andgeneral manager of the EuropeanFederation of Football Agents (EFAA).

50 See: Robert C.R. Siekmann and JanwillemSoek, Arbitral and Disciplinary Rules ofInternational Sports Organisations, TheHague 2001; see also: Ian S. Blackshaw,Sport, Mediation and Arbitration, TheHague 2009.

51 Ian S. Blackshaw, Robert C.R. Siekmannand Janwillem Soek (eds), The Court ofArbitration for Sport 1984-2004, TheHague 2006.

52 See: Frans de Weger, The Jurisprudence ofthe FIFA Dispute Resolution Chamber,The Hague 2009.

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rules of football. It is customary, it is seen as a moral duty (fair play), fora player possessing the ball to hit the ball out of the play if an opponentis lying injured on the ground and is unable to play on. It is then cus-tomary, the opponent has the sporting duty, not to give the ball to oneof his own players from the throw-in, but to return it to the other teamthat had kicked the ball out of play. The party with the throw-in derivesthe right to throw-in the ball again from the fact that the other teamhad knocked the ball out of play, constituting an infringement: the ballshould remain in play, otherwise it is not possible to play football. Thisunwritten rule may well be ‘soft law’ rather than customary duty andlaw, since the referee does not have the power to enforce this unwrittenrule of fair play. Or can he claim this power by innovatively invokingthe principle of ‘unsporting behaviour’ (formerly: ungentlemanly con-duct) in disrespect for the game, which is explicitly provided for by thelaws of the game (Law 12)? After all, the custom of giving the ball backis based on a gentlemen’s agreement. But how then should the game berestarted? By having the throw-in taken by the other team? The laws ofthe game make no provision for this. By awarding a direct free kick tothe other team? That is not possible, since the ball is not then validlyreturned into play. The player taking the throw-in could be given anofficial caution (yellow card), if one were to reason along these lines. Oris the offence deemed to have taken place at the moment the teammatereceives the ball, so that a free kick would be possible? But who shouldthen be shown a yellow card: the player taking the throw-in, or the play-er receiving the ball from the throw-in, or both? Very rarely is a throw-in taken ‘mistakenly’ or ‘incorrectly’ - even in professional football.When it does happen, it is greeted by loud disapproval from opponentsand spectators alike.54 The custom of hitting the ball out of play whenan opponent is injured is under pressure nowadays, however, because itis increasingly assumed in professional football that it is the referee’sduty to stop play. That is indeed true, but only in case of serious injuries.There is therefore a tendency to play on when an opponent is lyinginjured on the pitch. Might he just be feigning injury, for example, inorder to break up the opponent’s rhythm? Professional footballers donot throw the ball straight to an opposing player, anyway, but to a team-mate who then kicks the ball as far as possible towards the opponent’sgoal or another safe area, so as not to incur any disadvantage from thecustom. That teammate, of course clearly could be sanctioned by thereferee for unsporting conduct in disrespect for the game.55

The rules, or laws, of the game are distinguished as a separately iden-tifiable category of sports law (Foster). However, I consider ‘lex ludica’- a similarly ‘exotic’ term, due to its evidently Latin roots - not as a typeof sports law alongside ‘lex sportiva’, but rather as a part of it, a sub-species. The direct inter-relationship is best illustrated by the exampleof the footballer who is ordered to leave the field of play after being givena red card by the referee and who can subsequently be given a one ortwo match ban as a disciplinary measure. That rules of the game whichare not as such assessed by any ‘ordinary’ court are most autonomousin practice may be a particular feature of those rules, but that does notjustify them being considered as an entirely independent category, or

even being excluded from sports law. On the contrary, without the Lawsof the Game sports would be non-existent and, as a consequence thesame would apply to sports law! So, from this perspective lex ludica infact might be considered as the hard core of sports law.

In my opinion, ‘sports law’ in the broader sense consists of more than‘lex sportiva’ and the subspecies ‘lex ludica’. It should also be seen asencompassing the public part (national, regional and international).There is no generally accepted, specific terminology in use for this partand its sub-parts. The German term Sportvölkerrecht (Wax) is so far theonly suggestion, but when translated into the lingua franca of interna-tional sport, English, it is rendered quite unusable in a terminologicalsense: ‘public international sports law’, ‘the law of nations of sport’? Andwe shouldn’t forget the national variant also (‘public national sports law’or ‘national public sports law’?). On the other hand, ‘European sportslaw’ (Weatherill) has become a standard term. We know that this doesnot refer to the private regional variant of ‘lex sportiva’.

In order nonetheless to produce a comprehensive nomenclature forthe entire field of ‘sports law’, one might wish finally to consider the fol-lowing solution, as an attempt to unravel the terminological knot.Admittedly, it is a theoretical, purely academic solution that runs con-trary to what is generally understood by the terms ‘lex sportiva’ (the lawsof sport) and ‘lex ludica’ (the rules, or laws, of the game). ‘Lex sportiva’would then stand for public sports law (the ‘law’ that governments seton sport), which can be divided into ‘lex sportiva nationalis’ and ‘lexsportiva internationalis’ (or ‘regionalis’, such as European (EU) sportslaw), and ‘lex ludica’ which would then designate sporting rules and therules, or laws, of the game (the ‘law’ that sport sets for itself ), whichmight also be divided into ‘lex ludica nationalis’, ‘internationalis’ (or‘regionalis’), with the Laws of the Game belonging qualitate qua to the‘lex ludica internationalis’. This solution would be based on the ideathat we only have two ‘termini technici’ available to us in sports law:‘lex sportiva’ and ‘lex ludica’ (with additionally ‘Lex Olympica’, of course,as the designation for the law relating to an international series of com-petitive events). The advantage of using the neologisms ‘lex sportiva’and ‘lex ludica’ in this sense would also be that they are commonly usedinternational technical terms which, as Latinisms, do not require trans-lation into various national languages. As such, they are even more suit-able than the umbrella label ‘sports law’, which is derived from the lin-gua franca of sport, English. From this perspective, ‘lex sportiva’ mightbe distinguished in English with ‘sporting law’ and ‘lex ludica’ with‘sportive law’ (‘game-law’) so that the triplet sports law / sporting law /sportive law would arise, in which case the oral pronunciation of eachof these terms in practice must be very clear, of course! Finally: why usethe term ‘lex sportiva’ for the public part and the term ‘lex ludica’ forthe private part? Could they not just as easily be used differently, name-ly the other way round? The reason is that, in terms of their literal mean-ings, ‘lex ludica’ is closer to sport as a game (and that is, after all, thebasis of sport as it is practised, see: the ‘hard core’ constituted by therules, or laws, of the game) and ‘lex sportiva’ as a more general, moreneutral term is, as it were, by definition further distanced from this des-ignation and lends itself more readily to association with ‘government’.

The sharp ‘bright line’ definition and designation of an area of thelaw could, incidentally, also be added as an additional (X) factor to Davis’assessment framework (no. 12). If this X factor is then applied to thepresent area, ‘sports law’, then the outcome is not entirely positive, asis evident from the above.

5. The hard core of sports lawIn Davis’ assessment framework, which I took as my reference point inorder to determine whether such a thing as ‘sports law’ exists, to whichthe answer was ‘yes’, it is evidently factors 1, 2, 5 and 7 (unique applica-tion of law from other disciplines to sport; specific, and from a legalviewpoint problematical, context of sport; conflictual nature of the rulesof sport with other areas of the law; interventionist legislation for sport,which would also therefore include conventions by way of internation-al legislation) that chiefly determine the response to this question. Theycan be considered as the ‘hard core’ of the assessment framework. Theseare all factors or criteria that determine the distinctive nature of an areaof law relative to the legal environment of other areas of the law. They

53 Jakarta (Indonesia) is the only place tohave a Lex Sportiva Instituta. It wasfounded several years ago by Dr HincaPandjaitan, a honorary member of theHague International Sports Law Academy(HISLAC(a)) which was established inDjakarta in September 2010, and is theprivate initiative of a law firm that is notofficially connected with any university.

54 A famous example of the ball not beingreturned to the other team occurred on 13February 1999 during the FA Cup tiebetween Arsenal and Sheffield United,when Nwankwo Kanu, making his debutfor Arsenal, mistakenly took a ball from ateammate that was intended for the oppo-nent and crossed it for Marc Overmars toscore the winning goal. Arsenal managerArsène Wenger subsequently offered tohave the match re-played. This happened,and Arsenal won again 2-1.

55 The in-depth study of the Laws of theGame of Association Football in a histori-cal and comparative (in particular, teamsports) perspective will be undertaken bythis author in the coming years.Especially, the Laws on the off-side ruleand offences (‘fouls and misconduct’) areof critical importance, the latter for thebenefit of their further improved applica-tion also to be examined from the per-spective of generally recognised principlesof criminal law (cf., the concepts of care-lessness, recklessness and excessive forcealready having been introduced in Law12). See, in this context, Sir Stanley RousC.B.E. and Donald Ford M.A., A Historyof the Laws of Association Football,Published by F.I.F.A., Zurich,Switzerland, 1974.

are therefore not only relevant for determining whether sport and lawmake up ‘sports law’, in other words whether sports law exists, but itcan also be argued that they determine where the ‘hard core’ of the con-tent of sports law might be found (stricto sensu). The core of why sportslaw exists, sports law is sui generis, also constitutes the core of what sportslaw is, what makes it special. Of course, all sports law - as describedabove in 4.1. and furnished with its own terminology in 4.2. - is by defi-nition special, since it pertains to all law that is related to sport. But thatshould not be a reason in itself to practice sports law as an intellectual-ly interesting, academic discipline. I am not therefore concerned herewith this sports law ‘in the broader sense’. What interests me is thedynamism that occurs when sporting rules are tested against the gener-al norms of regular society, and what the outcome then is or could/shouldbe. How do the rules by which the subculture of organised sport regu-lates itself fit into the legal framework of the rest of society? From theperspective that has been outlined, the emphasis is therefore placed onthe study of ‘judge-made law’. As, globally, the Court of Arbitration forSport (CAS) is both the ultimate and the key body in this regard, it isunderstandable that Nafziger is keen to use the term ‘lex sportiva’ sole-ly for the jurisprudence of the CAS.

Sporting rules are applied and interpreted by the CAS - also includ-ing in the light of regular. general public legislation and regulations.The disputableness of some CAS awards, however can be illustrated bythe following example. According to the disciplinary law of UEFA, theEuropean football governing body, clubs are responsible for the con-duct of their supporters. In the ‘football hooliganism’ case of FeyenoordRotterdam versus UEFA56, the CAS confirmed this rule, even in thosecases where the club is not to blame for the misconduct of its fans.UEFA’s rule and the arbitral award of the CAS, which confirms the rule,are clearly incompatible with the fundamental principle under the ruleof law and of criminal procedure of ‘no punishment without guilt’. Inhis Rotte