Sport matters. It matters to those who play, whether for pleasure or profit. It matters to those who follow matches, whether live on screen or in print. Sport can arouse profound emotions, sometimes joyful, sometimes sad.
Sport inspires loyalty, especially – but not only in – football, where it attaches to club teams, even those without a single player from the city or town or area which gives the club its name. Sport is significant in terms of economics, representing 1 per cent of the world economy which equates to approximately one trillion US dollars of annual activity. Sport is significant in terms of politics, however much it is argued that it should not be. Consider the recurrent debate as to which national federations should be invited to send teams to the Olympics and whether invited teams will accept an invitation.
English law has never provided a comprehensive definition of sport. As in so many areas of the law, context is all important. Recognition in law as a sport has implications for matters such as lottery funding and value-added tax. Ruling that bridge was not a sport, the European Court of Justice said, “The concept of sport … is limited to activity satisfied in the ordinary meaning of the term ‘sport’ characterised by a not negligible physical element.” All sports are games but not all games are, in law, sports.
A negligible physical element is a necessary, but hardly a sufficient, description of sport. To qualify sport as a physical activity must surely have rules which govern how it must be played.
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Such rules – a match’s length, the weight of a discus, the width of a goal mouth, the type of footwear – are not compelled by the laws of physics or by some moral code. Subject always to the need to comply with the law of the land, they are constantly under review by sports’ governing bodies (SGBs) that are influenced by such considerations as the safety of participants, the enjoyment of spectators, the demands of television or the broadening of participation.
The rules define how the sport must be played, how victory is achieved, who should adjudicate whether the rules themselves have been complied with, who can enforce compliance, and who can administer a sanction (and of what kind) for breach of the rules.
A fundamental element in sports law – the so called ‘field of play rule’ – is that as long as referees or umpires (or other officials), assisted by technology, exercise their judgement or discretion in good faith, their decisions are beyond challenge otherwise than in so far as the rules of the sport themselves provide – for example, by on-the-spot applications to juries of appeal.
So, prima facie, the rule creates a sphere of autonomy into which even appellate sports tribunals, let alone courts, must not trespass. There are various justifications: the fear of constant interruption to the course of play by lawyers, the problems of rewriting a result after the event, the need to strengthen the match official’s hand and an arbitrator’s or judge’s perceived lack of expertise in the technical side of sport.
Beyond the boundaries of the field of play rule, sporting disciplinary offences contrary to the relevant code and other sports-related disputes are ever more frequently resolved by sport-specific tribunals, usually chaired by specialist sports lawyers rather than in the courts. In the UK, Sport Resolutions sits at the apex of domestic bodies. CAS, to whose jurisdiction during the course of this century most major global sports and all Olympic sports have subscribed, sits at the equivalent international apex. There is limited scope to challenge the decision of either body in the courts on grounds analogous to judicial review. Neither in Switzerland, nor in the Strand, will judges second guess the merits of the decisions of sports expert tribunals.
The major object of sport-specific law is to ensure that there be, as far as possible, fair competition, so that the result of a contest (luck apart) depends on talent and commitment and not on some form of cheating.
In Ivey v Genting Casinos, the Supreme Court was concerned with a card game of chance, Punto Banco.
In his leading judgment, Lord Hughes (obiter) gave examples of cheating in sport, paramount among them the taking of performance-enhancing drugs – the most pervasive problem in modern sport.
The major object of sport-specific law is to ensure that there be, as far as possible, fair competition, so that the result of a contest (luck apart) depends on talent and commitment and not on some form of cheating.
There is all but universal consensus that such taking is unacceptable. Since the turn of this century the World Anti-Doping Code, in its various versions, policed by the World Anti-Doping Authority (WADA), applies to almost all sports. WADA decides what are prohibited substances and can police the code by prosecutions for its breach.
Key to the Code is the strict liability rule. Faced with a charge of an anti-doping rule violation for presence in his bodily fluids or use of a prohibited substance, it is no defence for an athlete to claim that he was the victim of mislabelling, contaminated stock, or faulty advice from anyone at all.
As was explained by a CAS panel, “It is the trust and reliance of clean athletes in their sport, and not the trust and reliance in their physicians and coaches, which merit the highest priority. At the starting line, a doped athlete remains a doped athlete regardless of whether he or she has been victimised by their coach.” In this instance, the interests of the many have to be preferred to the interests of the one.
The result achieved by a doped athlete cannot stand and for pragmatic reasons, the advantage is presumed. The degree of care taken to avoid the infringement comes into play only when deciding whether, and for how long, the athlete should be subject to a period of ineligibility, taking account of factors such as age, degree of education in anti-doping and experience.
Anti-doping rules have to be compatible with the general law. They have generally resisted challenges that they fail that test. A striking instance is provided by the case Meca-Medina and Majcen v Commission where the European Court of Justice found that anti-doping rules were prima facie anti-competitive but that they were justifiably so.
The anti-doping regime can only work if tests can be administered out of competition as well as in it. To that end, athletes subject to it have to provide details to their anti-doping organisations of precisely where they are at any time, so as to be available for testing – the so called ‘whereabouts rule’. This is a huge intrusion of privacy, but it is the price which is laid down to be paid for participation in their sport. The presumption is three strikes, three missed tests, and you’re out.
Cheating in sport is not confined to doping. It is multi-layered, often fuelled by gambling. The follower of sport relishes its unpredictability, but for the gambler, predictability is all important. At its most serious, cheating is coincident with criminal law and amounts to corruption. At another level, it can be a breach of the civil law of an express or implied contract not to cheat. At yet another level it falls foul, not of the criminal or civil law at all, but only of the codes or rules of the game. It becomes a regulatory offence.
The three Pakistani cricketers persuaded (in aid of a purported betting coup) to bowl three no-balls at particular junctures in a test match against England at Lord’s in 2011 (so called ‘spot fixing’) were found guilty of a breach of the ethics code of the International Cricket Council, and later in the High Court also of conspiracy to cheat.
Forms of sport-specific cheating are plural and various: selecting ineligible persons for a team, claiming non-existent or less serious disabilities to improve one’s classification in Paralympic sports, breaking the rules as to engine construction in motor racing, or ball tampering in cricket.
Where criminal and regulatory offences coincide, the public authorities can (but sport’s governing bodies cannot) issue subpoenas or witness summonses and can access bank accounts to compensate the privilege against self-incrimination, which may not apply in sports disciplinary cases.
The sanctions in these two fora differ significantly. Courts can imprison but not ban. Sports tribunals can ban, but not imprison. Both, however, ordinarily have the capacity to fine.
The ordinary courts of law have a role to play in their traditional spheres of crime, tort and contract, but each of them is influenced by the so called specificity of sport.
Specificity also has its effect in statute in the context of the Competition Act 1988 (much influenced by European jurisprudence), but no less notably in the anti-discrimination law contained in the Equality Act of 2010, which outlaws (subject to certain exceptions) indirect or direct discrimination against persons with protected characteristics, but where there are sporting exceptions for disability, age and sex and gender reassignment. The first two of these occasion little controversy – the need for modifications in the interests of fair competition are obvious. Not so much the third.
No one seriously disputes the organisation of separate sporting competitions for men and women where physical strength, stamina, or physique are major factors in determining success or failure and in which one sex is generally at a disadvantage in comparison with the other. The vexed issue is: what does ‘woman’ mean in this context? Does it include females with differences of sexual development (DSD), intersex persons, persons reared as women but with male (not female) chromosomes, or persons born male who (post-puberty) self-identify as female ie transgender people?
Caster Semenya (the South African 800m runner who was required by World Athletics regulations to reduce her levels of testosterone as the quid pro quo to compete in women’s events) has challenged the validity of the regulations before the European Court of Human Rights (ECtHR), having failed before CAS and the Swiss Federal Tribunal. The hearing has taken place, but at the date of this article the decision is still awaited.
As to transgender athletes, the guidance from the International Olympic Committee (IOC) – the body at the summit of world sporting governance – has changed over time but has recently asked global bodies to give equal consideration to the inclusion of athletes and fairness for women when drawing up eligibility criteria. Given the ambiguity of this steer, there has been no consistency in the choice made by international federations or national SGBs.
The majority of sports have always taken a binary view that there are women’s events and there are men’s events, and the defining and dividing factor has always been biological. Biology, indeed, has been the factor which creates different categories in all areas of sports – such as multiple weight categories in boxing and age categories in track and field. So, to admit someone who identifies as a female but whose male biology is unchanged to compete in those sports which are affected by biology, would create an unprecedented exception to a hitherto well-established sports-wide principle.
If the science still confirms that male biology gives an advantage in terms of sports prima facie, sport’s governing bodies should respect that fact in the interests of its guiding principle of fair competition. Whether the human rights of the distinct minority category of transgender women should trump the consideration of the cis-gender women majority is outside the scope of this lecture. It will ultimately be for the legislatures or courts to decide this contested issue.
The American poet Grantland Rice wrote, “For when the one great scorer comes to mark against your name” he writes not that you won or lost but “how you played the game”.
This concept of the spirit of sport, much discussed during the last Ashes series, distinguishes it from law. As the preamble to the MCC Laws, “Cricket owes much of its appeal and enjoyment to the fact it should be played, not only according to the laws but also within the spirit of cricket.” There is, of course, nothing to stop the spirit of cricket, or of any sport, being part of a legally binding conduct code; indeed, oddly, the International Cricket Council Code of Conduct for Players does precisely that. At least, if not embodied in that particular way, the spirit of sport could be deployed as an aid to interpretation of open textured sporting rules.
I fear that the spirit of sport is more breached than observed, especially in football with the so called professional foul, theatrical diving to win a penalty and running down the clock to prevent a late comeback by the currently losing team. However, I emphasise, this occurs not just in football. We recall examples of fair play in sport precisely because they are so few.
Fair play in sport may always be more an ideal than a reality. After all, WG Grace, the most famous of English cricketers, was once clean bowled and he simply reset the stumps with the explanation: “These people”, pointing at the spectators, “have not come to see you bowl, they have come to see me bat.”
In the modern game, money, reputation, career and national pride means that winning at almost all costs has firmly taken pride of place.
The full recording of this lecture can be found at:
innertemple.org.uk/sportslaw
Michael Beloff KC
Blackstone Chambers
Five times an Olympic Arbitrator for the Court of Arbitration for Sport (CAS) and Chair of the Ethics Commissions of international cricket, athletics and skiing. His memoir MJBQC: A Life Within and Without the Law is published by Hart. The third edition of his book Sports Law also published by Hart, written together with Rupert Beloff, Catherine Beloff and Professor Jack Anderson is in preparation.
