Writing on Sports Law has been more challenging for me than I expected. Right from my “eureka moment” when I realized that sports law is an area of law I would like to specialize in, I began anticipating the right time to write on this exciting subject. Initially, I thought I could start when I began my LLM in Sports Law. Later, I reasoned that I may have to wait until I complete my LLM program. But then I realized that if I waited till then, the imposter syndrome would keep compelling me to wait till I handle my first Sports Law case and then till the next milestone, and then on and on in an unending cycle.
I realized there is never a perfect time to start something. I love Sports Law and for several months before beginning my LLM program devoted myself to understanding it by consuming as much material as possible. All the material I have consumed, and the incredibly brilliant lecturers I have listened to over the past two months, have not necessarily made me qualified, in the true sense of the word, to write about the subject of Sports Law. However, they have made me highly curious, and I think most of what is required to write on a subject is curiosity. Thus, writing this piece about Sports Law is not my attempt to be professorial; it is essentially an adventure into something I love, and an attempt to get my readers to become interested too.
WHAT IS SPORTS LAW?
In my early days of trying to demystify Sports Law, my then-nascent mind could not focus on much, but after some research, I discovered that it was more complex than I thought. By literal definition, Sports Law is simply the body of rules that guide and control the entire sports industry. The sports ecosystem is complex and unique, and sports law can be seen as the set of rules that guide the functionality and operation of the world of sports. The rules that ensure even within this unique spectrum, there is a constant delivery of justice and fairness.
This definition of sports law has been a source of robust debates over the years. For instance, some jurists have argued that Sports Law is not an identifiable and substantive area of law but merely deals with how other “established” areas of law like Contract Law, Torts Law, Intellectual Property Law, Administrative Law, et al impact sports.
SPORTS LAW OR THE LAW OF SPORTS?
It appears the jury is still out as to the status of “Sports Law”, but it seems that there has been an increased willingness to recognize sports law as a unique area in and of itself. I believe sports is unique enough and overwhelmingly deserving of its field of law. It is pertinent at this juncture to examine the metrics and yardsticks for conferring an area the unique status of legal autonomy or “substantive legitimacy”. What factors were evaluated before granting areas like Environmental Law, Labor Law, Computer Law, and Entertainment Law substantive legitimacy? The answer is twofold: first, these areas were granted substantive legitimacy because they became significant; and second, because orthodox substantive areas of law were inadequate to deal with the emanating technicalities.
Thus, if the existing substantive areas of law adequately cover the full depth of Sports Law, it cannot plausibly be considered as deserving of its substantive legitimacy.
AREAS OF LAW THAT INTERSECT WITH SPORTS.
As earlier mentioned, many substantive areas of law overlap with sports and some are more appropriate than others. The following subheadings contain brief explanations of the most impactful areas of law within sports.
CONTRACT LAW: Contract law is one of the obvious substantive areas that has firm roots in the world of sports. Contracts are formed on all levels of sports; between players and clubs, between clubs and leagues, between leagues and sponsors/broadcasters and, you can argue, between fans and clubs. Lawyers, agents, and executives are frequently called upon to examine, draft and interpret contracts as part of their jobs. Contracts within sports are guided by the same guidelines and tenets that guide contracts outside sports by and large. That is to say that for instance, just like in every area that contract law applies to, within sporting contracts, the required validity elements of capacity, offer, acceptance, competence, mutuality of agreement, etc., have to be present albeit to varying degrees.
LABOUR LAW: Labour law is prominent in sports because sports are inundated with all manner of employees. Athletes are the primary actors in the sports ecosystem and are employees entitled to several protections under the law. Except for football, players of all the major team sports within the United States are represented by Labor Unions who sign Collective Bargaining Agreements (CBA) with the leagues and their owners. Within Europe, players of the Euro league (the continental basketball league of European teams) formed the Euro League Players Association in 2018 and have a CBA in place that mirrors that of the NBA Players Association in many ways. Labour Law has a significant impact in the sports world.
ANTITRUST LAW: Antitrust law fundamentally exists within sports for the promotion of competition and the restriction of unlawful methods to gain a monopoly. In the United States, Acts like the Sherman Antitrust Act and Clayton Act prohibit monopolies and trade restraint. Within Europe, Articles 101 & 102 of The Treaty on the Functioning of the EU prohibit anti-competitive behavior and abusive behavior by companies holding dominant market positions. Antitrust law is important within sports because sport thrives on uncertainty and fair competition. First, federations are somewhat monopolistic by their nature and have immense power to regulate sports nationally or internationally as the case may be. The existence of antitrust laws ensures that power is not abused. Second, sporting teams have disproportionate financial reach and commercial might. The most powerful teams mustn’t act illegitimately to further entrench their power.
INTELLECTUAL PROPERTY LAW: IP Law deals with the protection of intangible symbols and assets owned by companies by recognizing exclusive rights. IP Law abundantly impacts the sports world, because sporting organizations, franchises, and leagues are only identifiable through their trademarks—logos, badges, and uniforms. Sports organizations also profit through the exclusive distribution of those trademarks. IP law within sports also deals with the distribution of copyrightable interest in broadcasting rights and the likes.
Several other areas like Torts Law, Business Law, Agency Law, etc., all have some form of impact on sports law. I will not talk about them in great detail in order not to make this article excessively long.
In determining whether sports law deserves its intrinsic substantive legitimacy, several questions need to be answered: First, do the areas of law highlighted above adequately deal with all issues of sports within their purview? Does orthodox contract law, for instance, deal with all the issues emanating from sporting contracts? If standard Tort Law principles were applied in an unfettered manner to sports would the sports world still function effectively? If European Competition Law was followed stricto sensu, would facets of sports like transfer windows or even national competitions still exist within Europe? Lastly, will anti-doping laws (which have now been considered universally important) exist without the development of a unique framework for it within sports law jurisprudence? The answer to most if not all these questions is an emphatic NO in my humble opinion.
I believe that the existence of Sports Law is in essence premised on the notion that sport is unique. Sports stakeholders have for decades successfully defended the “specificity of sport”, basically the notion that sport has inherent characteristics which set it apart from other economic and social activities thereby making it “worthy” of an insulated system of control and regulation. The point must be made that sport is an undeniably special area of human endeavor. It is up there with organized religion as one of the most defining and influential human activities in the world.
Sport is a global phenomenon, and for its integrity, there must be uniform enforcement of rules by delegated federations. Its intrinsic global nature inevitably raises jurisdictional issues and its internal unique technicalities require not just its substantive legitimacy but its own system of redress altogether. The Court of Arbitration for Sport is somewhat existentially analogous to the International Court of Justice. States operate Industrial courts with specially trained judges to address unique commercial disputes. The willingness of governments globally to encourage deviations, and insulated systems of legal jurisprudence and redress should make the substantive legitimacy of Sports Law a settled issue. For its gravitas, for its immensely robust following, and its unlikeness, it seems unquestionable that sports law deserves its substantive legitimacy.
1) What is Sports Law, Tim Davis. here
2) ‘Is There a Lex Sportiva’, Michael J. Beloff here
This is an excellent article with so much intellectual juice; It quenched my intellectual thirst. Thank you, sir.