Lex sportiva: новая концепция управления спортом

Ш Ходжимуратов

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Sh.

А

.Khodjimurotov,

Teacher at “International commercial law” Depart-

ment of TSUL

LEX SPORTIVA: A NEW CONCEPT IN SPORTS

GOVERNANCE

Abstract:

the article highlights the legal nature of the

concept of lex sportiva, as well as an analysis of the prac-
tice of its use in the Court of Arbitration for Sport. The his-
tory of formation and the internal structure of lex sportiva,
the origin of the concept of “lex sportiva” is considered. In
addition, special attention is paid in the article to studying
the role of the Court of Arbitration for Sport in the emer-
gence of the concept under consideration. A comparative
analysis of the normative complexes lex sportiva and lex
mercatoria is carried out. Moreover, the author focuses on
the trans-national character of lex sportiva, as well as the
interaction and correlation of this concept with internation-
al sports law.

Key words:

lex sportiva, court of arbitration of sport,

sports disputes, lex mercatoria, precedent, transnational
legal order.

Аннотация

:

в

статье

освещается

правовая

приро

-

да

понятия

lex sportiva,

а

также

анализ

практики

его

использования

в

Спортивном

арбитражном

суде

.

Рас

-

сматривается

история

становления

и

внутренней

структуры

lex sportiva,

происхождение

понятия

«lex

sportiva».

Кроме

того

,

в

статье

особое

внимание

уде

-

ляется

изучению

роли

Спортивного

арбитражного

суда

в

возникновении

рассматриваемой

концепции

.

Прове

-

ден

сравнительный

анализ

нормативных

комплексов

lex sportiva

и

lex mercatoria.

Вместе

с

тем

,

автор

акцен

-

тирует

внимание

на

транснациональный

характер

lex

sportiva,

а

также

на

взаимодействии

и

взаимосвязи

этой

концепции

с

международным

спортивным

пра

-

вом

.

Ключевые

слова

:

lex sportiva, c

портивный

арбит

-

ражный

суд

,

спортивные

споры

, lex mercatoria,

преце

-

дент

,

транснациональный

правопорядок

.

Аннотация

:

мақолада

lex sportiva

тушунчасининг

ҳуқуқий

табиати

ёритилган

бўлиб

,

шунингдек

,

унинг

спорт

арбитраж

судида

қўллланилиши

ва

амалиёти

бўйича

таҳлиллар

олиб

борилган

. Lex sportiva

тушунчасининг

келиб

чиқиши

тарихи

,

унинг

шаклланиши

ва

ички

тузилиши

масалалари

кўриб

чиқилган

.

Бундан

ташқари

,

ушбу

мақолада

мазкур

Концепциянинг

пайдо

бўлишида

спорт

арбитраж

судининг

роли

ва

аҳамиятига

алоҳида

эътибор

қаратилган

. Lex sportiva

ва

lex mercatoria

норматив

комплекслари

бўйича

қиёсий

таҳлиллар

олиб

борилган

.

Шунингдек

,

муаллиф

томонидан

lex

sportiva

концепциясининг

трансмиллий

характерига

ҳамда

унинг

Халқаро

спорт

ҳуқуқи

билан

ўзаро

таъсири

ва

алоқасига

алоҳида

урғу

бериб

ўтилган

.

Калит

сўзлар

:

lex sportiva,

спорт

арбитраж

суди

,

спортга

оид

тортишувлар

, lex mercatoria,

прецедент

,

трансмиллий

ҳуқуқий

тартибот

.

In contrast to commercial arbitrations, specialized

sports arbitration courts not only effectively resolve sports
disputes, but also achieve a high degree of such efficiency
by providing a case-law in their decisions. The role of
precedent in resolving disputes was discussed in the UCI

v. Jogert [1], decision, in which the CAS noted that, alt-
hough arbitration is not based on the principle of stare
decisis (the prevailing power of precedent), the decisions
of the CAS form a case law of sports and contribute to
enhancing legal predictability in international sports law.
And although previous CAS decisions are not binding,
they can and should be taken into account by the CAS
Arbitration Groups considering subsequent cases in order
to establish the legality and protect the rights and interests
of sports bodies and athletes. The practical application of
an authoritative array of case law in the framework of the
CAS and national sports arbitration has been greatly facili-
tated by the introduction of open public access to most
arbitral awards.

In addition, the role of the CAS is not only to interpret

the regulations of sports federations, but more to identify
the most effective standards and create a harmonized
unwritten set of rules that reflect the best practice of law-
making and law enforcement in the field of sports. Thus,
CAS develops standards for international sports federa-
tions.

The concept of lex sportiva is a neologism, which is in-

creasingly used to denote the system of transnational
sports norms. In the narrow sense, lex sportiva comes
down to the decisions of CAS, which formulated a number
of principles dictated by the rules and regulations of the
adjacent legal order and the circumstances of the sports
competitions and events themselves. These principles
have been developed with the aim of ensuring the unity of
the transnational law and order in the field of sports.

It is believed that for the first time the term lex sportiva

was put into circulation on the initiative of the current CAS
Secretary-General Matthew Reeb simultaneously with the
publication of the first Digest of CAS awards 1986-1998.
Already in the preface to the second Digest of CAS
awards for 1998–2000, Mr. Reeb wrote that the first Digest
testified the fact of the formation of lex sportiva in the pro-
cess of considering CAS disputes. The neologism of lex
sportiva cannot be considered Latinism, since the adjec-
tive “sportiva” is not Latin in origin. Therefore, it is believed
that the term lex sportiva was created by analogy with the
medieval term lex mercatoria.

Lex sportiva is an interesting example of global legal

pluralism, is outside the framework of state regulation and
is formed in the process of resolving international sports
disputes between private actors. Lex sportiva is an auton-
omous regulatory system that includes the Olympic Char-
ter [2], the World Anti-Doping Code [3], which is an exam-
ple of public-private regulation of sporting legal relations,
norms of international sports federations and national
sports bodies that establish the rights and obligations of
private actors within an international sports family. The
source of their legality is a high degree of self-fulfillment of
these norms, which is finally confirmed through an appeal
to an external arbitration div, the competence of which is
written directly in the contract between the parties.

The concept of lex sportiva is so new that, even in the

recent 2005, CAS itself decided in its decision that the
content and limits of this concept are too vague and am-
biguous to be used to determine the specific rights and
obligations of the sports association in relation to the ath-
lete. In a later decision, the CAS already agrees with the
existence of such a concept. The case concerned the le-
gality of applying sanctions to the whole team when a pos-
itive doping test was detected only in one of the members
of such a team. CAS decided that within the framework of
lex sportiva there is no principle that would unequivocally

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require disqualification of the team for the use of doping by
one of the athletes during the competition. In this case, the
CAS noted the priority of the general principles of lex spor-
tiva over the contractual norms of international sports fed-
erations.

The validity of the allocation of lex sportiva was men-

tioned in another CAS decision: “Sports law has been de-
veloped and strengthened for many years, especially by
settling disputes by arbitration courts, resulting in a num-
ber of unwritten legal principles - a kind of “lex mercatoria”
for sports, which both national and international sports
federations must comply, regardless of the presence or
absence of such legal principles in their laws and regula-
tions, as well as regardless of whether these principles are
consistent with Applicable domestic law, provided that
such principles do not violate the norms of public order in
each particular case.

Nafziger notes that lex sportiva, based on the principle

of stare decisis, contributes to the speed of arbitration,
predictability and stability of decisions, the CAS sequence
when considering similar cases. The precedent nature of
the CAS decisions and the equivalence of these decisions
contribute to the formation of a system of mutually agreed
principles of lex sportiva.

Scientists around the world fill the term lex sportiva

with a completely different meaning. Some reduce his
understanding solely to the decisions of the CAS, while
others believe that lex sportiva is nothing more than the
aggregate of unwritten legal principles applied by the CAS
when dealing with sports disputes. There are those who
generally deny the existence of this unique legal phenom-
enon in the field of sports. A number of scientists are con-
vinced that lex sportiva is a branch of international sports
law, the specificity of which is to apply the principles of
international law in the field of sports through an appeal to
CAS.

Carter defines lex sportiva as a set of transnational ar-

bitration principles, which are formed by transnational as-
sociations of private entities. Cassini, in turn, identifies the
concept of global sports law and lex sportiva.

Ken Foster singles out, within the framework of the lex

sportiva system, a set of general moral rules for sports
competitions, defining it as an internal law of sports, which
Foster calls lex ludica. This is a kind of author's interpreta-
tion of the fair play system (“fair play”) [4].

Papaloukas’s idea is completely valid, which notes that

the concept of lex sportiva as an autonomous and inde-
pendent legal order is not identical to international sports
law, which by its very nature is intended to regulate rela-
tions between states. Therefore, the concept of lex sporti-
va covers the global, not the international sports system.

The history of sports has a rather long history. As not-

ed by the famous French scientist, Professor Philip Gest,
long before the emergence of laws on sports and, espe-
cially, the regulatory and systematic systematization in this
area, people already ran a race and overcame obstacles,
competing among themselves. And already then there
were rules that determined the height of the jump, the
length of the racetrack and the conditions of the competi-
tion.

Sports regulatory regulation as a form of regulation ex-

ists independently of legal regulation authorized by the
state, and has a very long history. Already in the Ancient
World, relations in the field of sports were regulated by
communities and the first prototypes of sports organiza-
tions. However, the laws on sports began to appear only in

the late XIX-early XX centuries. Gradually, the process of
implementation of lex sportiva in sports law began.

Sports activities for a long time remained outside the

sphere of legal regulation. This can be explained by the
free sports, and accordingly the lack of interest in it from
the government.

Lex sportiva as a legal phenomenon governing interna-

tional private sporting relations, is fairly new and little stud-
ied. In general, the prevailing opinion in foreign literature is
that lex sportiva is an autonomous set of norms that are
transnational in nature and regulate relations in the field of
sports.

For the further effective use of lex sportiva in the set-

tlement of disputes, it is necessary to codify the principles
that are part of this regulatory system in a single docu-
ment. It is logical that such a codification was carried out
within the framework of the CAS, since it is he who plays
the key role in the formation of unwritten legal principles.
Such a document would allow structuring the principles
that govern the CAS in resolving disputes by classifying
into groups of sports affairs and a brief description of the
approaches to solving each group of disputes. Such a set
of rules could be something like the Unidroit Principles [5],
which will be applied not only to CAS, but also to national
sports arbitration. The creation of an organization similar
in its functions to the International Institute for the Unifica-
tion of Private Law (UNIDROIT) [6] could also be expedi-
ent. This organization could, in cooperation with CAS,
work to unify the norms governing international private
sports relations.

The rules, which are created by international sports

bodies, largely resemble similar rules within the framework
of lex mercatoria. Not without reason in scientific circles
they speak about the similarity of the concepts of lex spor-
tiva and lex mercatoria. These two sets of norms have a
number of signs that allow speaking about the similarity of
their legal nature. They are characterized by the same
goal of functioning - increasing the efficiency of regulating
a certain sphere of international private relations with the
help of a special regulatory system. Both regulatory com-
plexes were created outside the framework of the official
legislative activity, directly by the subjects of the corre-
sponding sphere of public relations. Both systems are
autonomous legal systems that are not part of either the
system of international law or any national legal system.

However, differences exist in the conditions of use of

these systems. Thus, lex mercatoria can be applied only if
there are conditions that are not required for the applica-
tion of lex sportiva: first, by applying national law (if the
parties have chosen this right or if it is applied by virtue of
a corresponding reference) to which lex mercatoria has
been incorporated; secondly, through the direct application
of lex mercatoria, if the parties did not choose the applica-
ble law, and the arbitrators found it possible to apply lex
mercatoria. If you simulate a situation in which a national
sports federation, an athlete or any other participant in
international sports relations refuses to sign any document
subordinating them to lex sportiva, this refusal will not
mean the automatic subordination of the relevant subject
to the national law and order. However, such a subject will
be deprived of the right to participate in all Olympic com-
petitions.

Both international trade and international sports are

characterized by special dispute resolution procedures.

The main differences between lex sportiva and lex

mercatoria are reduced to different sources of these regu-
latory systems and the presence of the element opinio

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juris, i.e., a sign of legal obligation. The sources of lex
mercatoria most often include international conventions,
recommendations of international organizations, general
principles of law, customs, usages, model contracts,
codes of model rules and arbitral awards. The sources of
the lex sportiva E.A. Vostrikova include all of the above
with the following reservations:

- a small number of international treaties in the field of

Olympic sports, such as the Nairobi Treaty on the Protec-
tion of the Olympic Symbol of 1981 [7], the UNESCO
Convention Against Doping in Sport in 2005 [8] and other
few solid law documents;

- such a structural element of the lex mercatoria as

recommendations of international organizations in the
case of lex sportiva is replaced by the rules of international
sports organizations that are of solid law and have a
common character, i.e. they are legally bound;

- the absence of any lex sportiva codifications and

codes of model rules at the moment;

- a large variety of standard documents (contracts,

forms, etc.). Athletes participating in the Olympic Games,
for example, fill out a special application form, according to
which they agree, including the CAS jurisdiction in the
event of a dispute during the Olympic Games;

- according to the thought prevailing in foreign litera-

ture, the beginning of the formation of lex sportiva was laid
by the decisions of CAS, which had a precedent character.

In the aspect of legal obligation, lex mercatoria is sig-

nificantly inferior to lex sportiva. In particular, the
UNIDROIT Principles [9] and the Principles of European
Contract Law may be applied only with the consent of the
parties to international agreements. These documents are
advisory in nature and are related to soft law. In contrast,
documents lex sportiva, in particular, the rules of the Inter-
national Olympic Committee (hereinafter - the IOC) and
sports federations, apply to participants of the competition,
regardless of their consent.

Lex sportiva is a more advanced system compared to

lex mercatoria, since it already has a clear hierarchy of
norms, system integrity, the ability to regulate all types of
international private sports relations, and the mandatory
nature of the norms of international sports organizations.

From the very beginning of the emergence of this field

of human activity, the regulation in the sphere of sports
was private and transnational in nature. Sports organiza-
tions form an institutional structure that is transnational in
nature. The urgent need to regulate international sports
relations at the global level has contributed to the emer-
gence of a transnational by nature law and order known to
us today as lex sportiva, which has no absolute analogues
in other branches of social relations.

Sport is a favorable starting point for the development

of transnational private law. In 1956, the book of the fa-
mous American lawyer Philip Jessup, “Transnational Law”
[10] was published. Jessup proposes to use the term
“transnational law” to describe the rule of law, consisting of
norms of international public and international private law,
as well as norms that are not part of these two regulatory
systems, and regulate legal relations and events that go
beyond the borders of one state. The transnational law
defined in this way is intended to accumulate all legal
norms, regardless of their origin, that go beyond a particu-
lar legal order into a single system.

In the field of sport, the concept of transnational law

developed by Jessup is particularly relevant. It allows you
to include in this new rule of law rules of a private nature,
developed by international sports federations and the IOC.

This also includes the few international legal norms con-
tained in the UNESCO Convention Against Doping in
Sport in 2005 [11], the Council of Europe Anti-doping
Convention 1989 [12], the European Convention on Spec-
tator Violence and Misbehaviour at Sports Events and in
particular at Football Matches of 1985 [13], the 1985 Inter-
national Convention against Apartheid in Sports. Another
component of transnational sports law is the so-called soft
law. We cannot ignore the norms of national law applica-
ble to transnational sports relations, in particular, the
Swiss Association Law, because the IOC and most inter-
national federations have their headquarters in Switzer-
land.

Jessup goes even further in his assumptions, noting

that any judge (national or international, public or private)
who has to resolve a transnational dispute may choose a
transnational rule that he considers most appropriate be-
cause of his inner conviction and in the interests of justice.

Of course, such a position does not find support

among the judges of state courts, who follow clear rules in
determining the law they should follow when resolving a
dispute. But the arbitrators of the CAS have enough op-
portunities for freedom of action in the designated area. As
part of the appeal proceedings, in addition to the applica-
ble rules and regulations chosen by the parties and the
law of the country in which the federation, association or
any other sports div that made the decision appealed,
have a permanent seat, CAS may also apply the rules of
law that it considers acceptable in each specific case. The
practice of SED shows that his chambers interpret this
position differently. The chamber of ordinary production,
which deals with cases of first instance, applies the rules
of the relevant sports bodies, sometimes refers to the na-
tional law, and may generally prefer the unwritten princi-
ples of sports law. At the same time, the Chamber ad hoc
should resolve disputes in accordance with the Olympic
Charter, relevant regulations, general principles of law and
the rules of law that it considers appropriate.

Findings. Thus, lex sportiva can be defined as a pri-

vate autonomous legal order, which is formed on the basis
of CAS decisions and which includes the principles, cus-
toms and norms of international sports federations and
organizations aimed at regulating legal relations arising in
the field of sports. CAS activity is a vivid example of the
existence of a transnational sphere of regulation of sport
relations. Finally, the desire of sports bodies to self-
regulation and autonomy found expression in the concept
of lex sportiva, whose popularity is growing every year. In
many ways, CAS creates not only lex sportiva, but also lex
specialis for sports. This CAS fully takes into account the
specifics of the sports sphere of legal relations, which are
complicated in structure and expanding in space.

References and literature

1. http://autobus.cyclingnews.com/results/1998/jan98/

jan27a.html

2. https://stillmed.olympic.org/Documents/olympic_ch

arter_en.pdf

3. https://www.wada-

ama.org/sites/default/files/resources/files/wada-2015-
world-anti-doping-code.pdf

4. https://en.wikipedia.org/wiki/Fair_Play
5. https://www.unidroit.org/instruments/commercial-

contracts/unidroit-principles-2016

6. https://www.unidroit.org/
7. http://admin.theiguides.org/Media/Documents/WIP