The Autonomy of Sport: A Legal Analysis
Professor of Sports Law, Edge Hill University, member of the Sport and Citizenships’ scientific committee.
The current statutes of many major sports make reference to the need to protect the autonomy of sport. This is commonly justified as an important tool through which the values inherent to sport can be safeguarded from political, legal, and in the modern era, commercial influences.
Generally, these provisions suggest that sporting autonomy can be understood as referring to a range of sporting competences including the ability of a sports body, without undue external influence, to establish, amend and interpret sporting rules, to select sporting leaders and governance styles and to secure and use public funding without disproportionate obligations1.
“Lex Sportiva face legal uncertainty”
One of the most challenging aspects of sporting autonomy is the question of how to reconcile the rules of sports bodies with the laws of the land. It is claimed that due to the specificities of sport, sporting justice is better dispensed by those in the know, rather than those in the courtroom. As acknowledged by the European Court in Deliège, national federations “normally have the necessary knowledge and experience” to run their own affairs effectively2. Yet in other cases, the European Court has attracted criticism for allegedly substituting the knowledge and expertise of the sports governing body for its own. For example, in Bosman, it was alleged that the court overstepped the mark by not only dismantling the justifications presented in support of the transfer system but also suggesting alternative means of achieving competitive balance, such as a revenue sharing scheme3. Similarly, in Meca-Medina, the Court was criticised for establishing a methodological approach that placed the emphasis on the proportionality of sporting measures, in this case anti-doping requirements4. As Infantino pointed out, this method invites litigation and thereby creates legal uncertainty by transferring the responsibility for evaluating the proportionality of sporting rules from the competent and qualified sports governing body to judges5.
Judicial interference of the type Infantino observed in Meca-Medina is dangerous for the sports movement as legal uncertainty is one of the key factors constraining sporting autonomy and undermining the so called lex sportiva, the elaborate system of alternative dispute resolution (ADR) developed by the sports movement. As an alternative to litigation, ADR is cheaper and quicker and the costs are borne by sport and not the taxpayer. At the pinnacle of this system is the Court of Arbitration for Sport (CAS), a court delivering globally applicable sporting justice in a way that a national or European court cannot do. Its existence, it is claimed, justifies the non-intervention of ordinary courts into the affairs of sport.
“Sporting autonomy should be reconceptualised”
The counter argument is that the modern sports governing body has evolved into a complex organisation which should not be immune from judicial oversight. No longer do sports governing bodies simply act as sports regulators, they also pursue commercial ambitions, and this dual role can give rise to conflicts of interest and abusive conduct. It is claimed that the commercialisation of sport has meant that the interests of economically active athletes and undertakings have not been fully considered by sports bodies. Those disempowered within prevailing governance structures seek redress in law, as the Oulmers litigation revealed6. Equally, the current FIFPro complaint regarding the international transfer system reveals a frustration with the pace of change being achieved through stakeholder forums such as the European social dialogue7. Athletes have also expressed concern that the system of sports ADR, particularly the CAS, possess an inbuilt bias in favour of the sports governing bodies8 or that decisions rendered pay insufficient attention to workers’ rights enshrined in national or EU law9. Clubs have made similar complaints in this regard10. In addition, interested parties from related sectors, such as broadcasting, advertising and retail markets, complain that sporting autonomy is self-serving and damaging to their interests. These sectors look to courts to protect them from the actions of unaccountable sports bodies.
The debate on the merits of sporting autonomy versus legal intervention has become somewhat polarised and, rather unhelpfully, portrayed as a zero-sum game. Sporting autonomy should be reconceptualised as partnership between the sports movement and public authorities so that governance and ADR standards in sport reflect universally recognised standards, albeit adjusted to recognise the specificity of sport. Sporting autonomy is, then, not an absolute principle but is conditioned on sports bodies adhering to principles of good governance and fair dispute resolution. Without these adaptations, sporting stakeholders and related interests will be encouraged to take their disputes to ordinary courts, or public authorities will feel justified in imposing external regulation on sport.
1-Chappelet, J-L, (2010), Autonomy of Sport in Europe, Strasbourg: Council of Europe Publishing.
2-Deliège v Ligue francophone de Judo et disciplines Associeés Asb (Joined cases C-51/96 and C-191/97)  ECR I-2549, para. 68.
3-Case C-415/93 Union Royale Belge Sociétés de Football Association and others v Bosman and others  ECR I-4921, para. 110.
4-Case 519/04 P David Meca-Medina and Igor Majcen v Commission  ECR I-6991.
5-See for example, Infantino, G., Meca-Medina: a step backwards for the European sports model, p.8, accessed at: http://www.uefa.com/MultimediaFiles/Download/uefa/KeyTopics/480401_DOWNLOAD.pdf
6-SA Sporting du Pays de Charleroi, G-14 Groupment des Clubs de Football Européens v Fédération Internationale de Football Association (FIFA) (Case C-243/06), reference for a preliminary ruling from the Tribunal de Commerce de Charleroi lodged on 30 May 2006. Removed from the Court register by order of the President of the Court of 25 November 2008.
7-See at www.fifpro.org
8-See the Pechstein litigation. Case OLG München 15 January 2015 Az. U 1110/14 Kart.
9-See the Matuzalem litigation. Case 4A_558/2011.
10-See the SV Wilhelmshaven litigation before the Bremen Court of Appeal (2014).