Abstract

An apparent escalation in on-field corruption (doping and match-fixing) in professional sports has led to increasing numbers of athletes facing bans and a loss of livelihood as a consequence of decisions taken by sporting tribunals, as part of a regulatory system referred to as lex sportiva. This has led to challenges in domestic courts from athletes over the lawfulness and fairness of these proceedings (for example Pechstein and Kaneria). These challenges to the legitimacy of lex sportiva (and to the principle of the autonomy of sport) echo Foster’s (2003) critique of lex sportiva/global sports law as:"a cloak for continued self-regulation by international sports federations…a claim for non-intervention by both national legal systems and by international sports law… [which] opposes a rule of law in regulating international sport."The paper considers what is the ‘rule of law’ that regulates on-field corruption, and concludes that it is a complex web of law, since sports governing bodies now share with the state many aspects of the sanctioning of on-field corruption. The paper considers how the doctrine of ‘the autonomy of sport’ has informed the development of lex sportiva in regard to athlete corruption, and the competing claims of private sports law and national legal systems over the regulation of athlete corruption.

Highlights

  • As a contractual order based on the regulations of the sports federations, lex sportiva has been criticised for its a­ utonomy from national legal systems, thereby potentially qualifying it, in Teubner’s (1997) phrase, as a ‘global law without a state’

  • It is hard to see how the core principle of a system of arbitration with the protection afforded by Court of Arbitration for Sport (CAS) as tribunal of last appeal can be improved; so long that is as the tribunals, in particular CAS, apply recognisable legal norms and are independent from sports governing bodies (SGBs)

  • The alternative solution of disputes being raised by athletes of different nationalities before multiple jurisdictions arriving at contradictory decisions is avoided through lex sportiva and CAS; in the words of the German court in the Pechstein ruling ‘a uniform competence and procedure can preclude that similar cases be decided differently, and safeguard the equal opportunities of athletes during the competitions’

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Summary

Tom Serby

An apparent escalation in on-field corruption (doping and match-fixing) in professional sports has led to increasing numbers of athletes facing bans and a loss of livelihood as a consequence of decisions taken by sporting tribunals, as part of a regulatory system referred to as lex sportiva. This has led to challenges in domestic courts from athletes over the lawfulness and fairness of these proceedings (for example Pechstein and Kaneria).

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