Understanding Sports Law And Its Scope And Applicability

Defining Sports Law and its Ambit

Discuss about the Sports Law.

While defining the ambit of sports law, academicians, lawyers and students are always faced with a dilemma as to gauge the scope of the law. To answer this question, there is a need for a better  understanding of sports and law individually to bring them together in the sphere of a law. Law is a wide rubric which has under its umbrella contract, tort, and corporate law and so on and so forth[1]. Therefore, the researchers feel in vain trying to ascertain the areas of law that could fill up the void regarding sports or whether there already exists a law that specifically denotes itself to the working sphere of sports. The essay will try to find answers to the ever illusive question of what sports law is and whether it is an independent law or it is a break up and amalgamation of various laws brought together to answer and define the scope and applicability of sports law. Just like tort, contract, labour, corporate law function independently, the question that arises in the present context is whether sports law also has an independent existence or now[2]. The essay will try to find answers to the basic question, that is, does sports law exist independently as a separate law or whether it is a combination of various laws that can be applied in the sporting context.

Sports law is a recent development in the legal arena. Recently, making lawyers are working exclusively for sports law because it is an upcoming area which demands legal attention and qualified dedication[3]. The debate that concerns sports law is still rife, whether sports law exists or not-in the basic crux of the statement. Therefore, the understanding of sports law warrants the identification of a specific area of law that is designated for dealing with sports law. The essay shall be divided into 1) incorporating views of various scholars to determine whether sports law exists or now, 2) what role can the legislation play into recognizing sports law and ensuring better protection legally, 3) the recommendations to overcome the lacunae.

Does sports law exist is a question that demands to be answered both academically and legally. While applying law in sports, it is essential to keep in mind fair play and fair competition along with fixing liabilities both criminal and civil. The first approach is to negate that sports law does not exist as a law but it is an amalgamation of separate facets of law. This view advocated by scholars Paul, Weiler in their article Sports and the Law have vehemently denied that sports law does not exist independently and that it is nothing but an amalgamation of separate laws like employment law, contract law etc.[4] In understanding sports law, it is imperative to take into consideration laws of intellectual property, defamation, contract which cover the essential elements of sports law[5]. The authors have also concluded in their strict approach of interpreting sports law is stating that sports law is a misnomer and that it is a term deceptive in its very term because no such branch of law exists that is specifically dedicated to deal with sports law. In their conclusion, qualified and experienced lawyers have submitted that sports law is a misleading term because any law applied in the sports industry should be termed as a sports law and there is no need for the legislature to develop a law exclusively to meet the needs of the players or teams. Disregarding the existence of sports law, the authors also contend that substantive areas of various laws and essential elements are brought together to make sure a legal area of law exists which is named sports law[6].

Viewpoints on the Existence of Sports Law

Before discussing at length as to whether sports law exists or not, it is essential to first know what sports law could cover and why it is important to deliberate on the existence of the same. Players enter into contracts with their team which is governed by contract law, in cases of dope test failures or situations arising out of bans. Not only restricted to contracts and agreements between the players, negligence, breach of contract and defamation are also parts of the sports industry. Its needs both regulatory as well as legislative measures to make sure the sports industry functions smoothly[7]. There is a strict need for acknowledgment of sports law because this area predominantly strives on contract and employments and in cases of breach, strict penalties are required[8].

Another approach is the middle path approach that does not commit to one conclusion that sports law exists or not but tries to take the middle path to gauge the applicability of sports law and also to ensure the necessity of a specific branch of law dedicated to the fulfillment of sports requirements. This approach is called the moderate approach which does not commit to the traditional path. The need for an effective sports regulation is for the state to interfere to make sure there are no unfairness and the sports fraternity functions smoothly and without glitches. The moderate approach questions the traditional view that sports law does not exist. It questions that sports law is considered a misnomer and a term used to deceive the legislature into believing a law exists that can be classified as sports law. Taking into consideration the federal approach of various countries, the moderate approach can be applied in a broader sense to understand that there is a growing need for special law top deal with sports. The state and the regulatory bodies are functionally specifically to ensure that no unfortunate event happens that can harm the reputation of the nation or the anything that disrupts sports[9]. Though the authors are not claiming that a special corpus of law exists that can be termed as sports law but they are of the opinion that taking into consideration the activities of the states and the agencies in dealing with sports matters, there is an assertive process of  acknowledgement of sports law. What is again important in understanding the situation in terms of law, the authors have coined a new phrase “sports and law” and not sports law to say that other than using sports law as a term it is more prudent to use sports and law to denote that there are some facets of sports that require the intervention of law.   Combining both the traditional and the moderate approach, it can be said that sports law does not follow any specific corpus, whereas it follows a unification of various laws coming together to meet the needs of ensuring sports functions in accordance with the mandates of the legislature.

The Middle Path Approach

Law can be defined as a set of rules and regulations that help in the regulation of human conduct and always mandate pecuniary sanctions and penalties in cases of failure. Sports is an indispensable part of human existence and sports has been celebrate and worshipped since time immemorial. The human civilization cannot think of a time when sports was not important and recognition of the essentiality of sports is a prerequisite in the essay defining the scope and ambit of sports law. In the early days, sports were a recreation played between people of similar or different communities and the aim was entertainment. With the passage of time, the dimension of sports has changed. It is not anymore a recreation or an entertainment but a competition between different nations, with huge amount of money depending on the players. Not only money, with sports comes, many regulations, rules that have been fixed by agencies or boards that have been set up by the government. Sports have many policies and regulations are an integral part of the game. Sports cannot be understood independently without the involvement of the state.  The state has a very important role to play in estimating the regulation of fairness in the sports. Sports have both social as well as economic implications and therefore, the state plays an important role in analyzing the special function of sports[10]. The state has ensured special rules and regulations to ensure that sports come under the umbrella of legislation.

In the early 1960s, there was no such law unique to sports law and that made the traditionalists confirm to the hypothesis that sports law in not a law within the meaning of law and therefore no independent status can be attributed to the definition of sports law. In trying to find whether sports law has any uniqueness that can give rise to the recognition of sports as an independent law, it is also essential to question if there exists any law that has special status reserved for accommodating sports. In the late 1970s, the scholars concluded that there are various sports related problems that require the inclusion of law and these laws are unique and specifically directed at sports. There are a few sports doctrines and rules that relate directly to sports and nowhere else. These laws are specific to sports. The very aim of sports law is to manage all issues that arise in sports and find legal solutions to regulate disputes that arise in sports. Sports can play a very significant role if a law is specifically dedicated to the regulation of the same[11]. To implement a law, it is very important to bridge the gap between practical and theoretical approach and that can only be done by applying theoretical knowledge in cases of sports and all matters related to sports. Sports cannot only be understood in terms of a specified region but it has to be understood as an international phenomenon because sports is not restricted to one country or one region but is played internationally across continents involving laws of different countries. Therefore, while understanding sports, it is important to understand sports in the light of international law and combine laws of different countries to come to a conclusion.  Scholars and academicians who were so content with negating that sports law is not a sports law, came to the defence of sports law, saying, there is a special need for sports law because of a few factors, like the uniqueness of the problems that accrue due to the peculiarity of sports problems[12].

The Importance of Acknowledging Sports Law

Taking example of the uniqueness of problems that accrue due to the necessity of specific laws in sports is need for gender neutrality laws. A glaring need for sports specific laws is need for laws that ensure there are no discrimination regarding employment in teams based on gender. There are various instances where men and women are treated differently in a team or in employment in regulatory bodies[13]. Though there are various statutes and laws that prohibit discrimination at work place based on gender, there is no law exclusively for sports law. The laws criminalizing discrimination at work place can be seen in domestic laws of all countries but there is no universal and unified law that can be ascertained to be applying only to sports. The Sherman Act, for example, in section 1 and 2 vehemently opposes sex discrimination but it has a more commercial application than a sports centric application. The generic laws can be applied to sports to meet the similar requirements but these laws cannot be termed to be sports law. The laws mandated by the Sherman Act can be said to be applicable in sports but that does not meet the requirement of the broad term of the essay, that is, is there a law which only applies to sports law. The function of the courts while applying these laws is by drawing analogies and applying laws that have a similar modicum. Cohen v Brown University[14] was a case that dealt at length with gender discrimination where it was held by the Court that a school is said to commit gender discrimination if it does not give due credence to the performance of the player and gives more emphasis on his gender.

Sports Law-a separate field of law cannot be used as a legal terminology that takes into account the assumptions forwarded by various scholars that a specific genre of law exists that can be termed as sports law. This assumption buttresses the fact that sports law related issues can be dealt with a specific law and that can be attributed to a specific field. The debate related to sports law is not country specific and no country has come up with any law in their domestic legislation that tries to address the issue related specifically to sports law. One opinion that advocates that a new area of sports law has been born, was said by Simon Gardiner, who said that the time is right and apt for us to consider that a new law has been born and that law owes its inception to the growing need for laws to protect and safeguard the interest of lawyers and sports field. Though sports law is a melting point of different law like criminal, civil, taxation, tort, contract but going by the recent development, it can be said that there is a growing demand of sports law and this law has started to come about. The difficulty in applying the substantive areas of law is that there is a need to demarcate the practical differences between the already existing laws and the laws that are coming about everyday due to the growing demand of sports. In the early days of sports, many principles of labour and employment law were used but the dimension has changed drastically and the age old principle of taking small parts of laws from different existing substantive laws and applying them to sports has become a difficulty.  Law is a cogent approach to dispute resolution and is not limited to that but brings in its ambit making of new rules, regulations that fit the current demand. These need practical approach, rules of conduct, sanctions from the government and the involvement of the legislature to come up with laws that are most suited to the present situation. While formulating laws for sports, the societal implications need to be kept in mind because sports cannot function independently and it needs to take into consideration the societal implications.  Before formulating any law on sports, the definition of sports needs to be understood in the light of the European Charter from the year 1992 under the guidance of the Council of Europe, which defines sports as “forming social relations and performing in competitions to obtain results”[15]. By analyzing the definition of sports, it can be concluded that sports is social phenomenon and therefore the laws need to keep in mind the social aspect of sports. The onus is on the society and the government to ensure that the social rights of the players are preserved and there is no infringement of those rights by the state. This can be achieved by applying rules and laws that preserve social rights of players. Not only social, sports also have economic implications that need to be safeguarded by the states because in recent times, big players are bought through bidding and contracts are signed which involve exorbitant amount of money. An example of such contracts existing in sports is the contracts governing football clubs or the cricket tournaments where players are bought by paying a large chuck of money. These are governed by contract law and the players enter into agreements for a specified period of time. In cases of breach of contract, the players are penalized and this is a basic principle of contract law which is applied in the present sporting context. The Treaty on the Functioning of the European Union in Article 165[16] defines sports and attached rights to sports. The definition of sports in the European Union Treaty in a generic definition that talks about social and educational aspects attached to sports and aims at providing better assistance to sports through laws and regulations. A landmark judgment in assessing the rights of players in Bosman v Union Royale Belge Societes de Football Association[17], which is also called the Bosman case was held. The European Court of Justice was concerned with the rights of the players including their right to freedom to move, their freedom to work and form associations and the case also concerned itself with the direct enforcement of article 39 of the European Court Treaty. The facts of the case were regarding the free movement of players in the European Union and what rights are attached to players when they move within the European Union. The case laid the groundwork for the free movement of players in the European Union and whether they can play in different teams within the European Union and in the teams of the Member States[18]. The decision was important because it put a ban on any restrictions that were imposed on players to move to different clubs and held that players are within their rights to move to different teams within the European Union and play in different teams. The important clause attached to the judgment was that when contracts impose restrictions on the players to stay within a country can only move to another team after the contract ends and the players did not have to pay any transfer fee.

International and Gender Law in Sports

In sports there are many crimes that happen on a daily basis, arising due to violence or in connection to rivalry which gives way to a need to put across a specific law that will regulate harmony in the sports[19]. With the growing violence in sports, there is a need for sanction on the players who violate the rules and there is a need for stricter penalties on players who do not comply with the rules of sports[20]. These are the founding stone on which the need for better enforcement of sports rights is laid which encourage sportsmanship and harmony on the field and off the field. These owe their origin to criminal justice system that players cannot physically harm any player on the field and they cannot cause violence while playing. As has been discussed earlier that sports is an international activity and that there needs to be internationalization of laws that there is unification of laws and the domestic laws should not interfere with the international law. There is a need for domestic legislations to comply with international laws and in cases where there is a conflict between the national and the unified international law, there should ways of harmonizing the conflict and the domestic legislations should be modified according to the international law. Taking into consideration all the eminent scholars and their views, it is important to attach internationalization to sports. This can only be done by discarding the traditional thought of approach that says sports law is a misnomer and that no law exists exclusively called the sports law[21].

Though there is a need for exclusivity in law while dealing with matters related to the dispute of sports, the learned scholars are of the opinion that in cases when a law is specifically designed to cater the needs of sports, the essence of the legislature will be gone because they are of the opinion that sports is a recreational activity and that no special attention should be given to sports[22]. By giving special attention to sports, the legislature shall be diminishing the essence of law and its essence. Some scholars are of the opinion that sports should be seen as a commercial transaction and nothing more than the status of business should be accorded to sports. The authors are very recluse to the idea of according any intellectual importance to sports and therefore they are opposed to the idea of giving any special treatment to sports. This view by scholars has attracted various opposition because by stating that no special laws should be attracted to sports is in a way diminishing the essence of sports. This is a very primitive thought process which needs to go away because unlike in the past where sports was only a recreational events, it has now become a very important part of social structure which needs strict laws that has to be implemented by the legislature. They were also of the opinion that the existing social norms are not adequate to meet the requirements of sports law and that sports law was a redundant concept. This view was further explained by Professor Carter where he explained in detail why this primitive thought process exists and why legislature is not ready to incorporate sports law in its realm. In his words, he explained this by saying that the legislature is not yet ready to deal with sports law as a separate entity because it views sports as an entertainment and nothing else. This has been found in various instances that validates sports as entertainment and a commercial transaction. An example of such is found in the 1998 issue of The Nation, where the editor was quoted as saying the product was a gross national product. This goes on to validate that since time immemorial sports have been seen as an entertainment and nothing more.   

Not only is there a strict adherence to the existing rules and regulations mandated by the state legislatures, there needs to be addition to the similar phenomenon because lives are involved apart from contractual obligations and commercial transactions. As has been said earlier and reiterating on the similar notion that societal intervention is essential in cases of sports, there is also a need for effective sporting laws. Keeping aside labour law implications in sports, there are antitrust issues involved too[23]. There are innumerable incidents asking place in the sports that fix individual liability which are guided by tort law. To avoid violence on the field, the contracts need to inculcate clauses related specifically penalizing violent behavior that can claim lives and jeopardize harmony on the field. There are constitutional aspects in sports law that also need to be considered while applying law in sports related matters. Constitutional law needs to be applied to respect individual rights and also mandate state intervention in sports arena. Constitutional law ensures that state is made responsible in cases of gross violation of rights of the players on the field. In doing so, the states have to be made responsible and therefore to attract their liability, it is essential that the states know their laws and when a law needs to be applied[24]. With the growing commercialization of sports, players want to trademark their products and commercialize on their name and fame. This is done by attracting intellectual property laws that expedite commercialization of the repute of a player. These are not immediate laws that need strict attention but with the passage of time, intellectual property has started to gain popularity. Character Merchandising[25] is a growing field in the realm of intellectual property rights where players are making sure that their names and persona are attached to a particular product and with the help of those products they can capitalize on their fame. Sports law has many sources of origin-these can be international treaties, national and domestic regulations which prescribe the code of conduct for sports agencies and players. The basic sources of sports are international regulations and constitutional laws. In considering the need for a specific field of law, it is essential to ensure that what parts of sports need special attention and what constitutes a defined attention. The laws that are proposed to be specifically designated for sports are the one that should meet the requirements of equality, harmony and harmony that are the basic principles of any law. There is a need for set up of regulatory bodies that concern themselves with the substantive areas of law.

After analyzing all the perspectives of substantive laws and after fixing the liabilities of all the players and the regulatory bodies, it is mandatory to ask one simple question that what constitutes a law and when it is the time to conclude that a particular area needs more attention than others[26]. After deliberating on various topics that have been stated earlier by erudite scholars, the debate still remains rife-whether sports law is an independent law or an amalgamation of various laws whose principles collide to make a law specifically designed to deal with the key issues of law[27]. Therefore answering the debate from the perspectives of lawyers and scholars, it is important to understand the need for a definite law that will answer all questions related to the doubts of sports law. The litigation, both criminal and civil brings our attention to a specified facet of law and why it needs so much attention. The answer lies in the intention of the legislature in fixing great attention to the things that happen on and off the field that need the attention of the state. What makes sports law a requirement is because it inherently demands that proper and crisp laws are made that pay great attention to the interest of the players. Sports law demands both statutory and regulatory attention and that is the basic idea behind the essay, to provide recommendations and come up with areas that need special attention[28].

Some landmark cases that have shaped the course of sports law are the Boston Celtics Ltd Partnership v Shaw, Deli v University of Minnesota, Rodgers v Georgia Tech Athletic Association. These cases laid down various principles and incorporated laws of statutory principles. Celtics Ltd Partnership v Shaw[29] dealt with arbitrators’ powers to negotiate and the court rejected in the case the claim of the players saying that the court is not within its powers to grant any injunctive reliefs. Deli v University of Minnesota[30] is a contract case that dealt with promissory estoppels. Rodgers v Georgia Tech Athletic Association[31] is a case related to breach of contract which fixed the responsibilities of the coach stating that he was entitled to damages and demanded that he hold the position of responsibility being the head of the team. In the case of Rooney v Tyson[32], the court held that players playing in their independent capacity constituted a contract and that came with a time clause and the contract started with the beginning of the career and ended with the end of the contract. Sports law governs many relations-relation of principal agent, relation of teacher and student. This relation was brought into light by the case of Zinn v Parrish[33], where it was held that a court has the authority to apply good faith principle and this shall be in addition to the already existing statutory mandate of duty of care.

Brown v Pro Football Inc[34].  laid down the inter-relation between antitrust laws and labour laws. The court held that collective bargaining is a part of the contractual terms and those parties had the power to negotiate and bargain to reach a better deal. Nabozny v Barnhill[35] was a tort case that dealt with the injury sustained by a player during the match and the remedies he was entitled to. Veronica School District 47J v Acton[36] was a case related to drug testing in sports and the court held that while drug testing by the authorities did not constitute any infringement of privacy and that drug testing done by governmental authorities did not invade the privacy of the players and therefore it was not enough to invoke the tenets of the Fourth Amendment[37]. The lawyer practicing in the field of sports law has to be equipped in the area of law dealing with both criminal and civil practice. The sports lawyer has to discharge a wide array of functions, including constitutional practices. Not only the rights of the players but the sports law have to regulate the interests of the agents, athletes and the coaches[38].

Taking into consideration all the relevant aspects of substantive law that can be applied to sports law; it is difficult to come to one conclusion regarding the existence of sports law and whether it exists independently or not.  From basing the debate on academic grounds towards moving in a direction to incorporate legal values, the passage of sports law is laden with various debates. The question to decide whether the debate of sports law should include two distinct spheres, that is sports and law or whether the debate should be regarding the legality of sports and law, that is understanding them as two branches that can be incorporated to include principles of substantive law[39]. Taking cue from the already mentioned academicians, there are various opinions that corroborate or deny that sports law has an existence devoid of any existing law. This debate is seen from an academic point of view because incorporating existing laws into sports to meet the needs of sports has been over emphasized in the course of this essay.

Conclusion                                                                                                                                        

Recently, many firms, advocates have started to practice in the area of sports law and that gives a clear idea about the necessity to incorporate substantive laws in sports. Compiling all the arguments advanced by scholars, lawyers and academicians in the present debate regarding the existence of sports law as an independent law devoid of any substantive law reference, a definite conclusion cannot be reached. Some are of the opinion that sports law exists and some say that sports law is deceptive because no such law exists that can exist independently[40]. Countries with the most robust legislation have advocated the need to come up with laws that deal with sports exclusively to give it a specific identity. There needs to be strict compliance with the legislative norms and the laws identified to be related to sports law should confirm with the already existing substantive and procedural laws. With the advent of sports and sporting facilities, there is an immediate need of a law specifically designed to meet the requirements of sports. Sports cannot grow without the sanction of the state and to ensure that sports conforms with the principles of fairness, competition and good faith, sports law need to be read as an exclusive domain of law.

101 F.3d 155 (1^st Cir. 1996)

166 Ga. App. 156 (1983)

334 N.E. 2d 258 (ILL. App. Ct. 1995)

461 F. Supp. 11 (ND III. 1977)

511 N.W.2d 46(1994)

515 U.S. 646 (1995)

518 U.S 231 (1996)

908 F2d 1041

956 F. Supp. 213 (NDNY 1997)

Alexander, Charlotte S., et al. "The University of Pennsylvania Law School Fifth Annual Sports Law Symposium The Changing Landscape of Professional Sports." (2018).

Brandt, Andrew, et al. "A Changing Game: Challenging the Status Quo in Sports Law." Jeffrey S. Moorad Sports Law Journal 23.2 (2016): 363.

Buttaro, Andrew. "Antitrust's Outlier: Consumer Welfare and Wage Restraints in Professional Sports." U. Denv. Sports & Ent. LJ 19 (2016): 1.

C-415/93

Clark, Sherman J. "Why Sports Law." Stan. L. & Pol'y Rev. 28 (2017): 151.

Devine, Cathy. "Sex, sport and justice: reframing the ‘who’of citizenship and the ‘what’of justice in European and UK sport policy." Sport, Education and Society 21.8 (2016): 1193-1212.

Edelman, Marc. "How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change." Rutgers UL Rev. 68 (2015): 809.

Ellmer, Eva MM, and Steven B. Rynne. "Professionalisation of action sports in Australia." Sport in Society (2018): 1-16.

Ericsson, K. Anders. The road to excellence: The acquisition of expert performance in the arts and sciences, sports, and games. Psychology Press, 2014.

Evans, James Cullen. "A Criminal Justice System without Justice: The News Media, Sports Media, & Rap's Influence on Racial Crime Disparities." U. Miami Race & Soc. Just. L. Rev.5 (2015): 117.

Hill, Katelynn. "Sports Law in Law Reviews and Journals." Marq. Sports L. Rev. 27 (2016): 259.

https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1517&context=sportslaw

Jackson, Steven James, Mike Sam, and Minhyeok Tak. "The problems and causes of match-fixing: are legal sports betting regimes to blame?." Journal of Criminological Research, Policy and Practice just-accepted (2018): 00-00.

Jones, Alison, and Brenda Sufrin. EU competition law: text, cases, and materials. oxford university Press, 2016.

Kornbeck, Jacob. "Bosman and Athlete Welfare: The Sports Law Approach, the Social Policy Approach, and the EU Guidelines on Dual Careers." Liverpool Law Review 38.3 (2017): 307-323.

Kornbeck, Jacob. "Bosman and Athlete Welfare: The Sports Law Approach, the Social Policy Approach, and the EU Guidelines on Dual Careers." Liverpool Law Review 38.3 (2017): 307-323.

Maheshwari, Arushi. "Character Merchandising: Scope and Limits." (2018).

Mitten, Matthew J., et al. Sports law and regulation: Cases, materials, and problems. Wolters Kluwer Law & Business, 2016.

Mitten, Matthew J., et al. Sports law: governance and regulation. Wolters Kluwer Law & Business, 2016.

O’Brien, John. "Essays in sport and the law [Book Review]." Sporting Traditions 33.1 (2016): 112.

Rees, Jonathan HL. "Doping in Sport and the Law." (2017): 1.

Ross, Stephen F., et al. "Sports and the Law: Text, Cases, and Problems, 5th." (2015).

Serby, Tom. "The state of EU sports law: lessons from UEFA’s ‘Financial Fair Play’regulations." The International Sports Law Journal 16.1-2 (2016): 37-51.

Thorpe, Holly, and Nida Ahmad. "Youth, action sports and political agency in the Middle East: Lessons from a grassroots parkour group in Gaza." International review for the sociology of sport 50.6 (2015): 678-704.

Treaty on the Functioning of the European Union, Art 165