INTRODUCTION

The term sports law is fourfold in nature and encompasses:

  • traditional areas of law, such as contract, tort, criminal, administrative and EU law, as applied to disputes of a sporting origin;
  • the particular impact that a range of statutory provisions might have on sport; for example, legislation governing discriminatory and unsafe practices in a workplace or monopolistic or fraudulent behaviour in an industry;
  • issues of public and social policy otherwise influencing the legislature and the courts, from the allocation of resources to the allocation of risk; and
  • lex sportiva, where that term is taken to reflect the various internal administrative regulations and awards by dispute-resolving mechanisms in sport.

As a matter of practice, sports law tends to be concerned with the application of contract and commercial law principles to professional sport – and namely the application of such branches of law to disputes relating to the following "three pillars" of modern, professional sport i.e., disputes relating to the payment, sponsorship or endorsement of those who play sport for a living; disputes arising from decisions made by sports governing bodies; and disputes arising from the application of law to the holding of sports events.

Organisation of Sport

Organised sport is an extremely rule-bound activity, both in its playing regulations and its administration. On the former, the rules of cricket, for instance, currently consist of 42 “Laws”. Law
42, (fair and unfair play) has 18 sub-clauses, which try to allow for a bewilderingly wide range of player misconduct. Law 42 reflects the difficulties facing many sports in exercising their disciplinary remit in a fair and proportionate manner and especially over participants whose livelihood may depend on the sport. As regards administration, the governance of sport is now characterised by a complex pyramid of internal regulation. Using football as an illustration, the world governing body’s (FIFA’s) international regulatory reach from its headquarters in Switzerland to the local soccer pitch in England is based not only on its statutes, regulations and disciplinary codes but also through a series of supranational (UEFA), national (the FA) and regional associations, all with their own internal regulatory regimes and relationships. Moreover, this pyramid of governance must also take into account external bodies such as the World Anti-Doping Agency (WADA) and the remit of the Court of Arbitration for Sport (CAS) and also, of course, the norms and provisions of domestic and international law.

The volume of commercial and media activity in sport has increased dramatically. Many contracts concerning TV distribution rights, agency, sponsorship, ticketing, commercial data and employment, involving sportsmen are, quite simply, significant commercial agreements, e.g. Force India Formula One team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051; Rugby Football Union v Viagogo Ltd [2011] EWHC 764; International Management Group (UK) Ltd v Simmonds [2003] EWHC 177 (Com) and Attheraces Ltd v British Horseracing Board Ltd [2005] EWHC 3015 (Ch). The significance and potential of sport (e.g. professional football) as an “economic activity” was reflected, most prominently in the well-known decision of the European Court of Justice in Union Royale Belga de Societies de Football v Jean-Marc Bosman (C-415/93, ECJ) and Meca-Medina & Majcen v Commission for European Communities [2004] 3 C.M.L.R. 60.

In addition, during a similar period, there has been a parallel increase in awareness that loss and injuries sustained as a consequence of sporting activities may constitute the basis of a successful legal action. In Middlesborough Football & Athletic Club (1986) Ltd v Liverpool Football Athletic Grounds Plc [2002] EWCA Civ 1929, the Court of Appeal said:

“That success on the field brings financial reward cannot be doubted. Professional football is a business like any other. If a club is wrongfully deprived of a valuable player the courts ought not simply to throw up their hands and say that its loss is incalculable and so in law must be regarded as speculative and irrecoverable. Rather, they must value it as best they can using for the purpose all the opportunities afforded by the conventional processes of litigation.”

This change has been reflected in the availability and cost of relevant public and employer’s liability insurance policies and the growth of actions brought by alternative funding arrangements.

There has been particular growing litigation activity in:

  • negligence claims against fellow participants, e.g. Caldwell v Maguire [2001] EWCA Civ. 1054; [2002] P.I.Q.R. P6; Gravil v Carroll [2008] EWCA Civ 689 (tortious assault); Collett v Smith [2009] EWCA Civ 583;
  • claims against match officials, e.g. Smoldon v. Whitwirth & Nolan [1997] P.I.Q.R. P.133; Vowles v Evans [2003] EWCA Civ 318;
  • claims against supervisory and/or regulatory bodies, e.g. Watson (Michael) v British Boxing Board of Control Ltd [2001] Q.B. 1134; Aberavon & Port Talbot RFC v Welsh Rugby Union Ltd [2003] EWCA Civ 584; Wattleworth v. Goodwood Road Racing Co Ltd [2004] EWHC 140 (QB);
  • professional negligence claims in respect of medical treatment and advice, e.g. Brady v Sunderland AFC (unreported, November 1998, CA);
  • claims against schools and/or organising bodies, e.g. Chittock v Woodbridge School [2002] EWCA Civ 915; Mountford v Newlands School [2007] EWCA Civ 21; Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372;
  • challenges to anti-doping decisions, e.g. Korda v ITF Ltd, Independent, April 21, 1999, CA; Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447; Chambers v British Olympic Association [2008] EWHC 2028 (QB);
  • Environmental/nuisance claims, e.g. Lawrence v Fen Tigers Ltd [2001] EWHC 360.

The scope of judicial review in sport. The present state of the law is that parties to Sports Law disputes are limited to private law procedures and remedies. Judicial review is not available to challenge the decisions of a sporting body: R v Disciplinary Committee of The Jockey Club Ex p. Aga Khan [1993] 1 W.L.R. 909, CA and, e.g. R v Football Association Ltd Ex p. Football League Ltd [1993] 2 All E.R. 833 (approved in Aga Khan). In the final analysis, a party’s right to proceed by way of judicial review will depend upon the nature of the right infringed. Following the Aga Khan decision this requirement will present a claimant with an uphill task. There is no present indication that the Supreme Court is dissatisfied with this position. Hoffman L.J. in Aga Khan said “I do not think that one should try to patch up the remedies available against domestic bodies by pretending that they are organs of government.” In an appropriate case, the court may imply a term that the sporting body is under a contractual duty to the claimant to act fairly: R v British Council Ex p. Oxford Study Centre Ltd [2001] EWCA Admin. 207. However, the prevailing resistance of the English Courts to “interfere” with decisions of disciplinary tribunals is exemplified by the approach of the Court of Appeal in National Greyhound Racing Club Ltd v Flaherty [2005] EWCA Civ. 1117.

The impact of Human Rights Act 1998. The Human Rights Act 1998 provides that "public authorities" (including courts and tribunals) should not act contrary to the provisions of the European Convention on Human Rights; see Sch. l to the Act. By way of example, art. 6 of the Convention provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Act (s.6(5)) excludes from the definition of "public authority" a person who is performing a private act. It follows from the commentary above that, unless and until the Aga Khan decision is refined or reconsidered, the provisions of the European Convention will not by virtue of the Act bite on sporting bodies exercising, for example, disciplinary proceedings.

The courts have had no difficulty rejecting the argument that submission to an arbitration conducted by a sporting organisation subject to the supervision of the courts under the provisions of Arbitration Act 1996 is inconsistent with a party's Convention right to a fair and public hearing; e.g. Stretford v Football Association Ltd [2007] EWCA Civ. 238. Further, a party waiving his right to litigate a dispute in a compromise agreement will be held to his bargain: Leeds Utd 2007 Ltd v The Football League Ltd (Rule K arbitration 01/05/2008). Subject to the above, issues relevant to art. 6 will include: composition of the disciplinary tribunal, procedural delay and delivery of a reasoned decision; e.g. Marta Stefan v General Medical Council [2002] U.K.P.C. 10.