Has lex sportiva flown the CAS’ nest?

Published 29 October 2013 | Authored by: Kevin Carpenter

Recently I was fortunate enough to be the external examiner for a sports law masters student. In reading his thesis there was a good analysis of the much-debated existence of a "sports law" and consequently the development of a "lex sportiva" (remarkably a relatively new term that has managed to fly in the face of the plain English/anti-Latin movement in the legal profession).

There seems to be a general acceptance from academic opinion on this subject that a lex sportiva exists and that it stems almost exclusively from the Court of Arbitration for Sport ('the CAS'). Since becoming active in sports law both academically and in private practice, I have never really viewed this as the case. Therefore, is the CAS still the principal driver of the development and application of a unique global body of law in the field of sport?

Undoubtedly the CAS has had a significant role to play in the development of certain areas of sports law. These include: anti-doping and eligibility disputes in Olympic sports and transfer issues in football. Indeed, despite there not being a binding precedent principle in the CAS, the "sport court" declares itself to be developing a lex sportiva in line with general principles of law. Perhaps before making such grandiose statements, the CAS should ask the professional sports of the USA and say Australia whether they consider there to be a lex sportiva applicable to their disciplinary and regulatory framework?

It is my view therefore that to understand the existence of a lex sportiva one can only consider the jurisprudence of the CAS as one piece in a larger sports law jigsaw puzzle. For instance it has been seen on numerous occasions how the laws of one seemingly small part of the world, the European Union, can have a worldwide impact on sport. Take for example the Bosman decision and perhaps the upcoming Striani complaint brought against UEFA's flagship Financial Fair Play Regulations. Not only are there other supra-national courts to consider, such as the Court of Justice of the European Union, but there are also now a number of either sport specific or national sporting alternative dispute resolution ('ADR') bodies coming into being. Take Sport Resolutions in the United Kingdom as one example. After all, for any sporting dispute between parties to go to the CAS there either has to be a provision in the contract between the governing body and the participants (usually the competition rules) that the CAS will be the final arbiter of any disputes or there has to be an agreement between the parties subsequent to the dispute arising to go down that particular legal route. In contrast, in the rules of a number of national football governing bodies, all appeals are dealt with in-house and aggrieved parties have then had to attempt to bring actions in the national courts.

Returning to the issue of EU Law, it is perhaps appropriate to mention the "specificity of sport" doctrine, another phrase unique to the world of sports law. Specificity of sport is an attempt by the EU to allow sport, as a unique industry and sector of society, to deviate from the fundamental principles of the European Union. However, there is great uncertainty as to how this is applied on a case-by-case basis. This is good for academics but unfortunately not so helpful for practitioners. The limitations of the CAS in this regard can be illustrated hypothetically by considering what the CAS could have done had the Court of Justice of the European Union in the Meca-Medina case said that the WADA Code was not compatible with EU law? I do not think their lex sportiva would have had much sway over the institutions of the EU.

This blog is not intended to be anti-CAS. I am a supporter as it is a unique and fascinating dispute resolution service that is used by a limited number of sports, although available to all, for a limited number of issues. Yet is that enough to sustain and justify a global lex sportiva with the CAS as the guardian? To develop a true appreciation of a lex sportiva one must surely look at decisions of governing bodies from all sports in all different countries and at the independent ADR services that are available in different jurisdictions. Indeed it must be remembered that the CAS is itself subject to the supervisory jurisdiction of the Swiss Federal Tribunal ('SFT'). I have not yet read any articles written subsequent to the Matuzalem ruling by the SFT as to what this means for the principle of lex sportiva. Perhaps before this case it was believed that although the SFT had powers to interfere with rulings of the CAS that in reality this would never happen?

The existence of a lex sportiva suggests a global body of sports law developing upon unique legal principles and is used often to legitimise sports law as both an academic and professional pursuit in its own right. However, to say the principal driver of this is the CAS is now too narrow. This cannot be so given that a number of high profile and commercially successful sports around the world do not utilise the services of the CAS. This is even so in areas where there are international sporting legal instruments in place, such as the WADA Code, because these cannot be imposed upon sports, but they have to voluntarily Register to them, which US professional sports, for instance, have chosen not to do. Acknowledging a wider concept of lex sportiva will in my opinion improve decision making and governance in sport worldwide. The ruling of the SFT in Matuzalem may make the CAS rethink its approach and its feeling of supremacy over the sporting legal agenda. Only then will it be true to say that there is a lex sportiva, which is still very much in its infancy.

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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