Lex Sportiva Research Articles

Implementation of Lex Specialis in Sports Jurisdiction

The present study sets out the implementation of Lex Specialis in Sports Jurisdiction. It presents an introduction to Sports Law and the rules of Lex Sportiva and Lex Olympica. Following the introduction, this paper presents the concept of Sports Jurisdiction and the competence of the Sport Arbitral Bodies to rule on the constitutionality of the law. Furthermore, this study focuses on the necessity for the establishment of an International Sports Constitutional Charter with special rules for international sports activities and the establishment of a special International Sports Court. Finally, is investigated the application of the Lex Specialis Derogat Legi Generali Principle in Sports Law. In particular, this study points out that Special rules of sports law prevail over ordinary rules of law, according to the general principle of law Lex Specialis Derogat Legi Generali. It is highlighted that Sports Law is not a subcategory of international law, as International Sports Law, but a different kind of law, Lex Sportiva/Olympica. Lex Sportiva/ Olympica is an international “unethnical” law, which exists in parallel to the international law. It constitutes a sui generis sports law legal order, imposed heteronomously on the sporting world by various international organizations.

Community Law (Lex Communitas) as a Modern Stage in the Lex Mercatoria Development

The concept of the medieval lex mercatoria is experiencing a renaissance in the context of the global spread of information and communication technologies and the scaling of cyberspace. Globalization was replaced by networkization, which gave rise to the phenomena of networks, network communities, network communications, and network law. The author has chosen an appropriate research angle — a look at the lex mercatoria through the prism of the current network world order. This led to the conceptualization of lex communitas as «community law», which is the main object of the study. Lex communitas is considered as a modern historical form of lex mercatoria, mediating the non-state rule-making of international professional communities, the multiplying functional subsystems of which include lex informatica, lex sportiva, lex constructionis, lex petrolea, lex proprietas intellectualis, lex cryptographia, sustainable business law (sustainable business law), etc. Affiliation with one or another professional community is the basis for the application of the norms of lex communitas. This approach, in a sense, opens up prospects for posing the problem of the grounds for legitimacy, of ways to legitimize the norms of non-state regulation in the subject area of private international law. The concept of lex communitas correlates with how the modern system of resolving cross-border private law disputes is being transformed, increasingly moving to an extrajudicial plane: from international commercial arbitration to platform and decentralized systems. The paper attempts to identify certain features of the current stage of development of the lex mercatoria, the quantitative composition of the norms of which is rapidly multiplying in parallel with the ongoing qualitative changes in the system of regulation of cross-border private law relations.

Structural and Functional Interaction between International Law and lex sportiva and Technical Methods of Transforming their Norms

INTRODUCTION. The purpose of the article was to examine how two different regulatory entities - international sports law and lex sportiva - interact with each other in structural and functional terms. When characterizing the structural interaction, the author set herself the task of identifying the place of each of these normative complexes in the system of a larger whole. When analyzing functional interaction, the author viewed her task as considering the process in two aspects: static (delineation of the limits of regulatory influence) and dynamic (interference of regulatory efforts). As a result of studying the dynamic aspect of functional interaction, the techniques of incorporation, legitimation, and reference were characterized; the author gave the examples of the incorporation of the norms of the International standards adopted in addition to the World Anti-Doping Code into an international legal act - the 2005 UNESCO Convention against Doping in Sport, legitimation of the norms of the 2014 Council of Europe Convention against Manipulation of Sports Competitions through the adoption of the 2015 Code of the Olympic Movement on the Prevention of Manipulation of Competitions, and two types of reference: references to the World Anti-Doping Code in an international treaty - the 2005 UNESCO Convention against Doping in Sport of 2005 and references to international legal acts in the field of human rights in the FIFA Statutes (starting from 2016) and inthe FIFA Human Rights Policy of 2017. MATERIALS AND METHODS. The author listed the applicable international legal acts and acts of lex sportiva, studied the scientific works of leading representatives of domestic and foreign doctrine on such issues as the criteria for recognizing a specific branch of international law, the subject of regulation and the nature of transnational law, the interplay between international law and lex sportiva. Among the general scientific methods the author utilized substrate (substantive), structural and systemic approaches; comparative and hermeneutic approaches should be mentioned as the specific scientific methods used. RESEARCH RESULTS. As a result of the analysis of the structural interaction of the two regulatory orders, the author identified the place of international sports law in the system of international law and the place of lex sportiva in global law. When considering the static aspect of functional interaction based on the analysis of the content of the principle of autonomy of sport, a number of exclusive subjects of regulation by lex sportiva were identified. In the course of studying the dynamic aspect, the author characterized three types of transformation - the transfiguration of norms and their transition from one normative order to another - from the point of view of legal technique (incorporation, legitimation, reference). DISCUSSION AND CONCLUSIONS. In the author’s opinion, international sports law is a branch of public international law at the stage of its formation, and lex sportiva is an institution of transnational global law formed as a result of the activities of non-governmental actors. The study of the static aspect of the functional interaction between international sports law and lex sportiva indicates that the issues regulated by sports organizations in an autonomous manner include the establishment of rules for sports competitions, as well as issues of the internal life of sports organizations. The dynamics of transnational processes significantly expands the interaction between international sports law and lex sportiva and the transition (transformation) of norms from one regulatory complex to another in such areas as the fight against doping, countering the manipulation of sports competitions, introducing international legal standards in the field of human rights protection.

Harmonization of Lex Sportiva Framework

As sources of sports law the doctrine of sports law of the Russian Federation names the regulatory legal acts of the Russian Federation and the regulations developed by non-state sports organizations, which is referred to as lex sportiva. With regard to the regulatory legal acts of the Russian Federation, it can be stated that they are classical sources of all branches of law. The same one cannot say about lex sportiva, which is inherent exclusively in sports law. Moreover, it is customary to perceive lex sportiva as a single complex of homogeneous norms. The author suggests that this approach is not entirely correct, and proposes to reconsider it. In this regard, this study is aimed at studying the lex sportiva as a complex system consisting of the regulations of non-state sports organizations, lex ludica and lex specialis. The author attempts to introduce such categories as lex ludica and lex specialis into the doctrine of the domestic sports law, which allow us to state that there is some heterogeneity of lex sportiva. In conclusion, the author outlines the structure of lex sportiva and attempts to determine the legal nature of individual elements of lex sportiva.

Human rights in the Olympic Movement: The application of international and European standards to the lex sportiva

The promotion of the Olympic ideals is strongly correlated with the effective protection of human rights in the sporting context. However, countless practical examples of violations of athletes’ human rights have shown how the link between sport and human rights is continuously placed under strong pressure. Taking into consideration the thesis according to which human rights are an indirect legal source of the lex sportiva, this study analyses the gaps in the protection of the fundamental rights of athletes. By verifying the potential effects on the sporting juridical bodies’ competences and on the effective implications in sporting affairs for the European Court of Human Rights, the hypothesis of an emerging incorporation of human rights in sports legal orders will also be investigated. At the end of these pages, by identifying the limits and perspectives of the judicial protection of athletes’ human rights, we should also be able to evaluate if, and to what extent, a reform of sport justice bodies is urgently needed in order to guarantee the function of sport as an instrument of peace and sustainable development, vehicle of rights, and source of social inclusion.

The concept of legal space: A topological approach to addressing multiple legalities

AbstractThe notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.

The effective application of international human rights law standards to the sporting domain: Should UN monitoring bodies take central stage?

This work aims to reflect on the role that UN human rights monitoring bodies—both charter and treaty based—could play in tackling human rights violations of athletes rights occurred in the sporting domain. While recognizing the autonomy of sports associations in the application of their own lex sportiva, the author maintains that the perspective and concrete recommendations provided by UN human rights mechanisms could help (i) raise human rights standards applied by sporting associations and (ii) more effectively combat discriminatory and other harmful or unfair practices in sport. Thus, the purpose of the analysis is twofold. First, the work will examine the reasons behind the absence of a significant UN human rights mechanisms/bodies practice so far. Secondly, it will support that autonomy of sport should not imply that athletes could be prevented from having access to these mechanisms seeking concrete recommendations regarding changes in situations of discrimination or application of such harmful or unfair practices. While identifying certain obstacles to individual access, the work advocates for a more decisive action of these mechanisms in this regard. In particular, through Committees’ General Recommendations and Concluding Observations, on the one hand, and special procedures of the Human Rights Council’s pronouncements, on the other.

STАTUTА PSSI DALAM HIERARKI PERATURAN PERUNDANG-UNDANGAN DI INDONESIA

AbstractThe legal standing of PSSI statute is still a pros and cons among legal experts and football activists in Indonesia. This is because there are two views, namely the first view that the pssi statute is Lex Sportiva that has national legal immunity, while the second view considers the pssi statute can not override the national law in force in Indonesia. This research uses normative legal research methods. Based on the research conducted, the Statute of PSSI as Lex Sportiva is only the rule of play and not as the rule of law as stated in Article 7 paragraph (1) of the Law on the Establishment of Legislation containing the types of laws and regulations in Indonesia. Future arrangements regarding the position of the PSSI statutes can be made by revising the laws of the national sports system or by issuing new laws and regulations governing the division of authority between the Government and PSSI as well as applying criminal sanctions related to persecution and scoring arrangements in football matches. Keyword: PSSI Statute; Lex Sportiva; Sports Law;

Trends in the development of modern lex sportiva on the example of anti-doping rules in Russia

Trends in the development of modern lex sportiva on the example of anti-doping rules in Russia

САМОРЕГУЛИРОВАНИЕ В СФЕРЕ ФИЗИЧЕСКОЙ КУЛЬТУРЫ И СПОРТА РОССИИ

Aim. The paper aims to determine the status of self-regulation in physical education and sport based on state regulation. Materials and methods. The norms of Russian legislation in physical education and sport, as well as in self-regulation were studied. Attention is paid to Russian and foreign doctrine on lex sportiva and self-regulation in sport. Moreover, world practices in sports management were studied. Results. It was proved that there was no single regulatory system for physical education and sport in the Russian Federation. It was established that there was no common understanding of the activities that made up physical education and sport. Researchers believe that this domain consists of a professional and entrepreneurial activity that is regulated by both public and private law. The national sports federations, which set standards and rules independently, also play an important role in such regulation. The autonomy of the issue can be also demonstrated through the existence of a specialized permanent arbitration institution. Conclusion. The existing regulatory system has sufficient prerequisites for establishing self-regulatory physical education and sport organizations. If Russian sports federations acquire the status of self-regulatory organizations and sports clubs become the members of such organizations, when the best way of regulating public relations in physical education and sport can possibly be achieved.

Influence of insolvency of a football club in Poland on the right to participate in league games

The study is devoted to the issue of the impact of sports club insolvency in Poland on the right to participate in league games. In this respect, not only the regulation of insolvency law is of the key importance. There are also crucial organizational rules established by the sports association (the Polish Football Association—Polski Związek Piłki Nożnej) determining admission to league games of only such sports clubs which have adequate financial liquidity. It should be stressed that the Polish Football Association (hereinafter “PZPN”) regulations do not allow to take part in competitions sports club in bankruptcy. This topic has become particularly relevant in 2020 in the context of the economic consequences of the unexpected pandemic of SARS-CoV-2. The paper deals with some legal aspects of lex sportiva and with the basic model of organization of the professional football league in Poland as well.

Human rights in sport: interaction of international legal and сorporate standards

INTRODUCTION. In some areas of international sports regulation, it is lex sportiva (for example, the establishment of rules for sports competitions) or the law created by the State / States (for example, the fight against crime in sports) that plays a dominant role. In a number of areas, international sports law and lex sportiva exercise regulatory impact simultaneously. The purpose of the article is to examine how these two sets of regulations contribute to the observance of human rights in sport. The author's three goals were to analyze the process of interference of regulatory efforts based on examples of prohibiting discrimination, using lex mitior, and countering doping in sports.MATERIALS AND METHODS. In each case, the author listed the applicable international legal acts and acts of lex sportivа, studied the domestic and foreign doctrine, used the jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Arbitration for Sport (CAS).The author utilised such general scientific methods as the substratum (content), structural and system approaches. The comparative and hermeneutical approaches should be named as specific scientific methods that were used.RESEARCH RESULTS. Th author characterised the content of the international legal and corporate standards that have been formed in the spheres of prohibiting discrimination, using lex mitior, and countering doping. As a result of their comparison, she comes to the following conclusions: international law and lex sportiva are unanimous in their intent to eliminate discrimination in sports; lex sportiva seeks to apply the legal standard of lex mitior; in the field of anti-doping, a number of inconsistencies have been identified between international legal and corporate standards recognized by lex sportiva.DISCUSSION AND CONCLUSIONS. The prohibition of discrimination is an example of harmonization, as a result of which the requirements of international sports law and lex sportiva complement and strengthen each other. The second case is an example of the successful reception by lex sportiva of the legal concept of lex mitior, which is well-known to national and international law. When countering doping at the present stage, it is lex sportiva that dominates, and the failure to fully comply with the requirements of "due process" and, in particular, with the presumption of innocence in respect of professional athletes is a cause of concern to the academic community and the ECtHR.

The Judgment of Sport Jurisdiction Bodies on Doping Cases

This paper studies how sport jurisdiction bodies encounter doping cases when they are called upon, hear the parties involved, and decide in the first or second instance on the sanctions imposed. In any case, the attitude of the sports authorities plays a crucial role not only in the implementation of the regulations, the issuance of decisions and therefore the creation of Lex Sportiva, but also in the attitude of the sports community towards doping. The present study is based on the use of interpretive and jurisprudential review as the core of the methodological approach. Then, there is a comparison between the decisions of the National and International Federations, the WADA (World Anti-doping Agency) and the decisions of the CAS. (Arbitration Court for Sports). The research showed how the attitude of the bodies differs not only in the severity of the crises but also in the imposed sanctions. Through CAS decisions, it is clear that as the authority of the bodies increases, so does the rigor they display. In particular, WADA always appears stricter in doping cases and often brings them before CAS demanding stricter sanctions than those already in place. On the other hand, the International Federations often appear less strict, while the national federations often show the most lenient attitude. Furthermore, there is a difference in the decisions and argumentation of CAS, which comes either from the different legal culture of the referees or from the more tolerant interpretation concerning the athlete objective responsibility. In short, it is observed that the treatment of doping cases lacks stability.

FIFA and Human Rights – a Research Agenda

This special issue of the Tilburg Law Review aims to study the intersection between human rights and the way the Federation Internationale de Football Association (FIFA) governs and shapes football. The objective of this editorial is threefold. First, it highlights three different areas of research into the link between FIFA and human rights, namely its human rights impacts (section 2), policies (section 3) and responsibilities (section 4). Secondly, it maps existing research on FIFA and human rights for each section, thereby introducing some of the issues dealt with in more detail by the articles in this journal. Finally, it strives to contribute to the definition of a research agenda at the intersection of transnational law, lex sportiva, and (business and) human rights, by highlighting the questions that arise from linking a transnational private actor like FIFA to human rights (section 5).

Constitutionalizing FIFA: Promises and Challenges

FIFA’s reformation process, which began with the World Cup bid in 2010 and culminated in the explicit inclusion of human rights in FIFA’s statutes since April of 2016, exemplifies how transnational sports law (lex sportiva) can undergo processes that contribute to the protection of human rights. In fact, when viewed through the lens of societal constitutionalism, FIFA’s reformation process can be analyzed as a process of emergent constitutionalization. This paper provides the requisite empirical investigation and applies Teubner’s theory on societal constitutionalism to study FIFA’s reform process. FIFA has effectively formulated limitative rules by introducing human rights to their private ordering. This marks a decisive evolutionary step in the way sport related disputes are settled by the Court of Arbitration for Sport (CAS). Given FIFA’s new statutes, human rights no longer just apply subsidiarily (if at all), but directly. Further going re-specialization and regime-specific application of human rights can also be observed in FIFA’s reformation process. Human rights are positivized by a process formed like a ‘patchwork quilt’, entwining pressure from NGOs, private ordering, contracts, CAS decisions, and national courts decisions. Each part represents a valuable contribution to FIFA’s ‘common law’ transnational, social constitution. But this self-evolving constitution can be effective only when coupled to regimes of reflexivity and enforceability. Our case study reveals that FIFA’s reformation process already features high levels of reflexivity. Nevertheless, it is lacking in regimes of enforceability. It remains an outstanding question to what extent FIFA can be held accountable for human rights violations. Here, the societal constitutionalist lens draws attention to the normative importance of society for limiting the negative effects which FIFA has on its environment.

CORRUPTION IN MATCH-FIXING WITHIN SPORTS: THE NEED TO REGULATE FUTURE LEGISLATION (A COMPARATIVE STUDY AND LESSON FROM THE AUSTRALIAN SYSTEM OF LAW)

The Indonesian football league has been devastated greatly because of match-fixing, a problem that has caused the decline of the country’s achievements in international events. The ongoing mechanism of using sports law or lex sportiva is considered ineffective because it provides no deterrent effect on offenders. The country may learn from Australia, who has gained many international sports achievements by previously eradicating match-fixing in sports, including football. Australia has included match-fixing among acts of sports corruption, and offenders may be sanctioned both by receiving criminal punishment from a law authority and disciplinary sanction from a sport or football authority. To prevent and address the involvement of gambling syndicates in many instances of match-fixing in football matches, the country has enacted a national policy on the codes of conduct and anti-match-fixing measures in sports and established a special unit to coordinate the law authority and sports authority. Although it has a different system of law, Indonesia may learn from Australia in eradicating match-fixing in football and may have many great achievements in international events as a result.

The legal phenomenon of lex sportiva in the international sports law

The development of sports law is directly related to the nature of sports, whose legal relations must have uniformity and stability, achieved through regulation by special rules created by international and national sports organizations – lex sportiva. This paper is devoted to lex sportiva as one of the most important tools for regulating cross-border relations in the field of sports. The author examines the origin and legal nature of lex sportiva as well as its impact on national legislation in the field of sports. Moreover, the author elaborates on possible meanings of this notion: lex sportiva as a set of rules of self-regulation, as a set of decisions of the Court of Arbitration for Sport, as a legal principle, as a phenomenon of implementation, and as a criterion for determining the amount of compensation. The author discusses the use of lex sportiva by the Court of Arbitration for Sport in the context of dispute resolution, since this court has formed an extensive judicial practice throughout its existence, which, together with the rules of national and international sports organizations, forms an important part of lex sportiva. In this regard, the author draws parallels with the related source of cross-border law – lex mercatoria, and also considers situations in which there are conflicts between lex sportiva and the norms of international law and rules of national legislation. In the field of sports, such legal conflicts are resolved by the principle of lex specialis derogat legi generali, according to which the rules of lex sportiva prevail over national law, providing a principle for the autonomy of sports. The first mention of the recognition of this principle is contained in the sources of law of the European Union. Finally, the author comes to the conclusion that the generally recognized two-dimensional understanding of lex sportiva as a doctrine and as a set of norms of self-regulation in sports is outdated, since it does not fully reveal the essence of the legal phenomenon, since it does not reflect all its properties which are manifested in the situations of legal regulation of relationships in the sports field. The exclusive role of lex sportiva is predicted to resolve international legal and organizational conflicts in the field of sports caused by the COVID-19 pandemic.

LEX MERCATORIA AND LEX SPORTIVA: PECULIARITIES, SIMILARITIES AND DIFFERENCES

International law rules with regard to the regulation of sports activities at the universal and regional levels developed by states and international intergovernmental organizations have formed a set of norms ensuring international cooperation in the field of sport, namely, international sports law.What is the nature of the set of rules governing cross-border relations in the field of sport? They are mainly the result of rule-making carried out by the International Olympic Committee (the IOC) and the international Olympic Sports Federations. The article analyzes the approaches proposed by Western authors and applicable to the solution of the issue under consideration, elucidates the main provisions of the concepts of unified law governing relations between groups proposed by Georges Scelle, transnational law proposed by Phillip C. Jessup, and true international law proposed by C. Vedder.However, the best explanation for the interaction between national sports associations and international nongovernmental organizations of the Olympic Movement is provided by lex sportiva. Lex sportiva is similar to lex mercatoria that is used to regulate international trade. Both complexes have such properties as normativeness, non-systematicity, autonomy in the regulation and resolution of disputes. However, lex sportiva is characterized by a greater degree of institutionalization than lex mercatoria. There are two factors that contribute hereto: a pyramidal structure of the Olympic movement and activities of the Court of Arbitration for Sport (CAS) in Lausanne that was founded in 1983 at the IOC initiative. A greater degree of institutionalization of lex sportiva provides the right method for selection of norms and contributes to a stronger regulatory order in the field of Olympic sport.At the present stage, there is a tendency whereby the law created by States perceives useful designs that have arisen in non-legal regulatory complexes giving them legal effect. Therefore, modern lawyers should familiarize themselves with the content of the norms and rules emerging in non-legal complexes in areas of their concern in order to foresee what impact such norms can have on the development of the legal norms in the near future.

К вопросу о «Lex sportiva» как источнике спортивного права

This article is devoted to the study of the concept “lex sportiva” as a source of sports law and the analysis of its nature.

Basketball Arbitral Tribunal (BAT) as a \u2018lawmaker\u2019: the creation of global standards of basketball contracts through consistent arbitral decision-making

The ‘lawmaking’ of arbitral institutions has been a recurring issue in international arbitration. It is widely accepted that international arbitral tribunals do not have a forum, thus are relatively autonomous from the legal orders constituted by the states. Nevertheless, their adjudicative powers are always limited by the concept of international (transnational) public policy. Due to that arbitral institutions often aim at the creation of a consistent jurisprudence based on the universally accepted general principles of law. This has also been true for sport arbitration, where the ‘supreme court’ for sport CAS developed a set of principles called lex sportiva, governing transnational sport competition. Nonetheless, in sport, also BAT—established to solve contractual disputes in basketball—has become a true ‘lawmaker’. The uniqueness of BAT arbitration creates vast opportunities to unveil the general principles of law governing contractual relations in basketball. At the heart of it lies the default decisional standard ex aequo et bono that allows arbitrators for a certain degree of flexibility in their decision-making. In addition, a simple and flexible procedure equips them with a unique power over arbitration process. Finally, the voluntary character of BAT arbitration (unparalleled in sport arbitration) and its popularity within the basketball community reinforces arbitrators’ mandate to decide what is just and fair in basketball contracts. Due to that BAT established a significant presence in the landscape of sport arbitration and contributed to the development of contractual standards that global basketball relies on.