Transnational law in action.

Foster, Ken

What's interesting about the concept of lex sportiva?

Lex sportiva is a fascinating legal concept, especially to legal theorists as well as sports lawyers and practitioners, for several reasons.

* It is global, transnational and stateless. It is not just international law but transnational law (1); and CAS has become an important example of successful global governance. So Yi has argued 'in a time of increasing global complexity, the CAS represents one of the world's more successful attempts at bringing order to transnational issues ... a working, functioning international tribunal that can serve as an example for future efforts at transnational dispute resolution.' (2)

* It is an example of global legal pluralism akin to lex mercatoria. Lex mercatoria is not created by international agreement between states but by private commercial interests. It is not enforced by state sanctions but by arbitral awards that are recognized by states. In a similar manner Mitten and Opie describe lex sportiva thus 'For legal theorists, the evolving body of lex sportiva established by CAS awards is an interesting and important example of global legal pluralism without states arising out of the resolution of Olympic and international sports disputes between private parties. It is an emerging body of international law with some similarities to lex mercatoria, a much older and well established body of international commercial law that has developed in the essentially private domain of commercial activity based on custom and arbitration awards.' (3)

* As a private contractual order, it has a degree of autonomy. Its norms come from two main sources. First from the regulations of international sporting federations, which create a private contractual order and also from the WADA code, which is a hybrid of public-private norms and institutions.

* It is a variety of Alternative Dispute Resolution used to settle inter-national sporting disputes and so can be seen as part of a wider 'privatization' of sports law, which takes issues away from national courts by reference to contractual agreement.

What is 'lex sportiva'?

Is there such a concept to discuss at all? In 2005 CAS itself was not so sure. It said that 'the Panel is not prepared to take refuge in such uncertain concepts as that of a "lex sportiva", as has been advocated by various authors. The exact content and the boundaries of the concept of a lex sportiva are still far too vague and uncertain to enable it to be used to determine the specific rights and obligations of sports associations towards athletes.' (4)

Since that comment there have been no further references to it in the published awards of CAS until the recent arbitration of Anderson et al v IOC (5), which appeared to accept that such a concept exists. In discussing whether team sanctions were allowed when an individual member of the team was guilty of a doping offence, the panel said that it did 'not discard the theoretical possibility that an established principle of lex sportiva might serve as legal basis to impose a sanction on an athlete or a team.' (6) The panel however found no evidence of such a principle and concluded that it saw 'no definite pattern in international sports law that could support the argument that a general principle of lex sportiva has nowadays - let alone in 2000 - emerged and crystallized to the effect that a team should inevitably be disqualified because one of its members was doped during a competition. The matter is still subject to the multifarious rules that can be found in the regulations of the various International Federations.' (7) This is an especially interesting use of the concept for it implies that there are principles above and beyond the contractual rules of inter-national sporting federations that can be employed to settle cases.

Conversely, there is an emerging academic consensus as to both the existence and the content of the concept of 'lex sportiva'. For example, Lenard confidentially claims that 'That a lex sportiva currently exits is beyond debate. You cannot read a CAS opinion or a brief to CAS that does not cite prior arbitral opinions.' (8)

Nafzinger endorses this view with a wider notion that lex sportiva has three essential elements. He says 'a fully developed lex sportiva would help apply three values that the principle of stare decisis serves: efficiency of the legal process, predictability or stability of expectations: and equal treatment of similarly situated parties.' (9)

Several authors agree that precedent is a key element in establishing that there is a lex sportiva, as opposed to individual decisions on the merits by arbitrators. Kaufmann-Kohler in 2006 appeared to accept that an emerging lex sportiva was hallmarked by an increasing use of precedent in CAS awards and so concluded that 'a coherent corpus of law, some call it lex sportiva, is being built.' (10) Mitten and Davis also stress the significance of precedent in building a body of principles. They say 'Nevertheless, although the CAS is an arbitral tribunal and the majority of its arbitrators have a civil law background, it is ironic that CAS awards are forming a body of lex sportiva.' (11) They later point out that the principle of equal treatment of cases used by CAS contributes to the development of a set of consistent principles even without the explicit use of precedents (12). CAS itself has recognized the power of precedent. In Devyatovskiy v IOC (13) the CAS panel said 'In accord with previous CAS rulings on earlier versions of the "Different Analyst" Rule, the Panel applies a strict interpretation of the above rule.' (14) This is a strong acceptance of the need for consistency in interpretation of the rules thus ensuring equal treatment and fairness to athletes

From the published academic literature it is possible to see various uses of the term 'lex sportiva'.

* A narrow view is that lex sportiva and the jurisprudence of CAS are synonymous. What is decided by CAS arbitrators constitutes the corpus of lex sportiva. The fallacy of this equation can easily be shown by reversing the statement. The jurisprudence of CAS is wider for it has many sources (15). Many arbitrations are specifically governed by Swiss law. Each award now specifies the governing law, which may be a national law other than Swiss. Beyond national laws (16) it can be seen that 'general principles of law' and principles derived from 'the practices of international sporting federations which have crystallized into a norm' are also used. There are even awards that refer to 'Aequo et bono' as a guide to decision making. (17) This is specifically authorized by the CAS Code which states 'The Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorise the Panel to decide ex aequo et bono.' (18)

* Conversely there is a view, very well argued by Erbsen (19), that the jurisprudence of CAS treated as a lex sportiva, includes nothing distinctive that justifies treating it as a distinctive concept and so CAS functions as no more than a forum for contractual interpretation of documents.. He says 'Lex sportiva is now an umbrella label that encompasses several discrete methods of lawmaking, distilling a medley of variables into an oversimplified motto.' (20) Erbsen identifies four types of norms within CAS jurisprudence:- a norm which applies a clear interpretation of a contractual text - an offsetting norm which allows the incorporation of fair and equitable principles to modify formal norms- norms to assist in the interpretation of ambiguous texts - norms that allow textual gaps to be filled by using general legal principles. (21) He argues that these are functions that are no more than the normal legal task of interpreting texts and offer nothing distinctive. CAS does not thereby create a 'new form of substantive law' and so 'the Lex Sportiva label thus overstates the novelty of international sports law while understating its nuance.' (22)

* A broader version of this view argues that CAS uses a set of unwritten legal principles which embody the use of doctrines and sources beyond the written contractual documents of international sporting federations. This view is distinguishable from that of Erbsen above and is well expressed in the Anderson award above. Although the lex sportiva is a private legal order created by contract and reinforced by agreements to arbitrate, this does not mean that it is expected to be limited to the sole task of interpreting the source documents of international sporting federations. Lex sportiva thus can incorporate other sources, norms and principles in the task of interpretation.

* Others argue that Lex sportiva is just a branch of international sports law. Nafzinger has consistently argued for this categorization. He wrote in 2004 that it is 'limited to arbitral awards within the larger sphere of international sports law. Although by one interpretation the term is very broad, nearly coinciding with the term "international sports law," (23) the present commentary adopts the normal limitation of the concept to CAS awards.' (24) This implies that it can be seen as the application of international law principles to the context of sport through the forum of CAS. Gilson also seems to see lex sportiva as sub-branch of international sports law. He defines it thus 'CAS awards have been recognized as developing a lex sportiva, that is, a set of guiding principles and rules in international sports law.' (25)

* An even wider definition is that it is simply the application of general principles of law to sport. In FCP v FIRS (26) the panel said of the most appropriate rules that 'Ces regles sont constituees pour l'essentiel des principes generaux du droit applicables au sport (lex sportiva).' (27)

* Alternatively it could be seen as sub-category of arbitration. Carter has described 'a developing body of transnational arbitral principles - though not particular to sports disputes' which come from the transnational networks of private actors. (28) Unfortunately he does not specify the content of these 'transnational arbitral principles' but it does hint at a wider argument about the privatisation of law and the removal of disputes from courts to arbitration tribunals.

* Casini has recently argued that lex sportiva is included within a 'global sports law'. He argues that a global sports law 'has emerged, which embraces the whole complex of norms produced and implemented by regulatory sporting regimes'. (29) Within this definition he then specifies three main sources for this law. These are the transnational norms set by international sporting federations, 'hybrid' public-private norms produced by agencies such as WADA and international law itself. (30) Thus global sports law is highly heterogeneous. (31) Casini concludes 'In this paper, the term lex sportiva is used in a broad sense as a synonym of "global sports law". The formula "global sports law" thus covers all definitions so far provided by legal scholarship (such as lex sportiva or "international sports law") in order to describe the principles and rules set by sporting institutions.' (32)

* Latty sees lex sportiva as a manifestation of transnational law. He says 'L'etude de la lex sportiva necessite que soit precisee la notion de droit transnational et etablie la pertinence de son application au champ sportif. (33) This is very similar to lex sportiva as a global sports law.

I have argued elsewhere (34) that it is crucial to distinguish between international sports law and global sports law. This usage limits international sports law to signifying general principles of law, especially those derived from international law, that are applicable to sport. This means that the field of regulation, international sport under the jurisdiction of international sporting federations, is unique but not that the applicable law is different, adapted or unique to the context. The concept of global sports law can then be applied to a unique field of transnational law and regulation that has distinctive features. These unique features are first that its norms come from the rules and regulations of international sporting federations, which even if juridified, are distinct from legal sources; second that its legitimacy rests on contract; third that it has a unique forum of interpretation in CAS; and finally but most importantly it is global and transnational outside the review of national courts giving the decisions immunity and autonomy. Papaloukas likewise summarises the distinction thus: 'when one mentions the term Lex Sportiva meaning a separate, autonomous and independent legal order, one cannot refer to an international sports law, which by definition should be governing relations between states. Therefore the term Lex Sportiva should refer to a global sports system and not an international sports system. (35)

Characteristics of lex sportiva

What then are the characteristics of a lex sportiva? My definition is that it is characterized as being a private autonomous legal order established by contract between international sporting federations and those subject to their sporting jurisdiction and which then emerges from the statutes and regulations of federations as interpreted by institutions of alternative dispute resolution.

Each element of this definition is important. First, there has to be a private and autonomous order. The constitution of norms that govern sport is assumed to stem from the quasi legislative role of the international sporting federations rather than the application of general norms of law or laws of specific national regimes. It is this key distinction that separates lex sportiva from other legal orders and prevents it being merely a sub division of national, European or international law. The claim is further that it is autonomous, reflecting the desire of the Olympic movement especially but international sporting federations generally to be self regulating and free from interference by national governments. To be a genuine transnational legal order requires this degree of autonomy. Lex sportiva claims immunity from judicial review in national courts. (36) The concept implies that it is outside the jurisdictional competence of national courts, that a conflict between national law and lex sportiva norms will be resolved in favour of the latter and even that national systems of regulation are inapplicable.

Second, it is a contractual order. The fact that now every competitor is theoretically linked by contract to the sporting federation is the legitimising factor of lex sportiva. This includes an agreement to submit all disputes to the relevant private arbitration body and normally also a clause that prohibits any proceedings before a national court. For example (37) Article 28 of the Constitution of the Commonwealth Games Federation provides that

1. Any dispute arising under or in connection with the interpretation of this Constitution or the Regulations shall be solely and exclusively resolved by mediation or arbitration by the CAS according to the Code of Sports-Related Arbitration.

2. The decision of the CAS shall be final.

And in the Olympic Games (38) also

 The Appellants accepted the jurisdiction of CAS by signing the
 declarations described in Bye-law to Rule 45 of the Olympic
 Charter: "I also agree that any dispute arising on the occasion
 of or in connection with my participation in the Olympic Games
 shall be submitted exclusively to the CAS, in accordance with the
 Code of Sports-Related Arbitration (Rule 59)."

See also the WADA code, which explains in a comment (39) in the introduction to the Code that

 By their participation in sport, Athletes are bound by the
 competitive rules of their sport. In the same manner, Athletes
 and Athlete Support Personnel should be bound by anti-doping
 rules based on Article 2 of the Code by virtue of their
 agreements for membership, accreditation, or participation in
 sports organizations or sports Events subject to the Code. Each
 Signatory, however, shall take the necessary steps to ensure
 that all Athletes and Athlete Support Personnel within its
 authority are bound by the relevant Anti-Doping Organization's
 anti-doping rules.

Third, the sources of lex sportiva appear to be internal to the sporting order. To distinguish the concept from international sports law, it is necessary for lex sportiva to have unique sources for its norms. The main legislative source of lex sportiva is the rules and regulations of international sporting federations or of hybrid institutions such as the WADA code.

Fourth a key feature of lex sportiva is that it results from the jurisprudence of CAS (40) or of other arbitration systems for the sport, such as FIFA's Dispute Resolution Chamber. (41) For several authors the concept is specifically restricted to the interpretations of the arbitral institutions which have exclusive power to issue awards. I am prepared for the purpose of this paper to focus on CAS as the primary arbitration system of sport but it would be prudent to recognize that there are tribunals beyond CAS, which concentrates on Olympic sports. More interesting would be the investigation of whether lex sportiva has any independent existence outside these tribunals, for example in its recognition by national courts. This leads to the next related question - is there anything in the content of lex sportiva above its unique source in the constitutions of international sporting federations, and its exclusive forum for interpretation.

Is lex sportiva the application of general principles of law or has it distinctive principles?

The difficulty with identifying the uniqueness of lex sportiva is caused partly by blurring of what is unique. There is firstly a unique content that stems from the legislative sources of lex sportiva, essentially in the regulations of international sporting federations. Second there is an exclusive procedure for decisions and interpretations of those regulations through CAS and related ADR institutions. Third there is a view that its uniqueness derives from its context. As Erbsen says 'CAS's jurisprudence is thus best conceptualized not as an entirely new species of law, but rather as a subtle adaptation of general legal norms to the idiosyncrasies of a specific regulatory environment.' (42)

In many ways the debate about the precise meaning of lex sportiva reflects a similar debate as to whether the academic discourse is sports and the law, implying the application of general principles and categories of law to sport, or sports law, which implies a distinct and different set of rules applying only to sport. Beloff for example describes it as 'a hardy perennial. Whether there is such a coherent entity as sports law, or whether sports law is only a mosaic randomly aggregated from a variety of what are accepted to be discrete legal areas.' (43)

The argument for the uniqueness of lex sportiva requires some analytical precision. In my view, the best formula is to reserve lex sportiva for those general principles that can be extracted from the diverse practice of sports federations and the codes by which they govern themselves and the principles of interpretation used by arbitration tribunals to adjudicate. This is merely a uniqueness of context.

The use of distinctive principles applicable to sporting disputes is then best described as lex ludica. Casini seems to adopt this distinction. He talks of 'principia sportiva' which occurs 'when CAS does not apply a principle of general law, but creates a "new" principle. This happens, for instance, whenever CAS refers to the so called "principia sportiva", i.e. principles conceived of for sport only, such as "fair play" or the principle of "strict liability" applied to doping cases. (44) It is these distinctive principles that are equivalent to a lex ludica, the unique norms and elements that are only found in the regulation and adjudication of sporting disputes. We can treat it as sub-category of les sportiva if necessary as long as this distinction is maintained.

Lex ludica: what's in it?

Under many of the definitions that we have looked at, there is a struggle to identify and locate the unique elements of lex sportiva. One approach is to argue for a lex ludica. I have defined this previously as:

'A further set of principles and rules that can be distinguished, and separated from the concept of 'lex sportiva', are what can be termed the sporting law, or rules of the game. I propose to call these principles 'lex ludica'. These encompass two types of rules that are distinctive and unique because of the context of sport in which they occur and are applied. One covers the actual rules of the game and their enforcement by match officials. The approach here by the CAS has been to treat these rules as sacrosanct and immune from legal intervention. The second type is what can be termed the 'sporting spirit' and covers those ethical principles of sport that should be followed by sports persons. The concept 'lex ludica' thus includes both the formal rules and the equitable principles of sport. They are arguably immune from legal intervention because they are an 'internal law' of sport - a private governance that is respected by national courts, and as such is best applied by a specialised forum or system of arbitration by experts.' (45)

I would like to broaden this concept of lex ludica to include further issues that demonstrate the different approach of both regulatory structures and arbitral bodies to sporting disputes. Lex ludica is the distinctive element of the transnational private order of lex sportiva, which equates to global sports law. So for example we could provisionally discuss these issues (46):

* That match decisions and results are unchallengeable. The autonomy of sport requires a final result that cannot be reopened. As Beloff puts it ' at the heart of the lex sportiva lies a paradox, namely that one of its key objectives is to immunise sport from the reach of the law, to create in other words a field of autonomy within which even appellate sports tribunals should not trespass. The referee, umpire or other match or competition official must be allowed free play within his own jurisdiction' (47) This also extends to respecting expert technical decisions as final because of the expertise involved.

* Sporting ideology has always claimed that a key principle of sport is 'fair play. (48) FIFA for example has a Fair Play Code. The Laws of Cricket have a preamble entitled 'The Spirit of Cricket' which begins 'Cricket is a game that owes much of its unique appeal to the fact that it should be played not only within its Laws but also within the Spirit of the Game. Any action which is seen to abuse this spirit causes injury to the game itself.' (49) Exactly what is included within the concept of 'fair play' is somewhat nebulous but seems to include observing the laws, not cheating or acting dishonestly, respect for opponents and officials, and accepting decisions and results with good grace. One body - the International Fair Play Committee - defines it as 'Respect, friendship, team spirit, fair competition, sport without doping, respect for written and unwritten rules such as equality, integrity, solidarity, tolerance, care, excellence and joy, are the building blocks of fair play that can be experienced and learnt both on and off the field.' (50)

* Sporting integrity, which is the idea that the competition and the result are honest and not tainted by cheating or under-performance. There is a major problem of corruption in sport, especially in those sports that attract substantial betting, such as football, horse racing and cricket. Here sporting federations have taking powers to impose restrictions on competitors that might seem excessive in other areas, such as preventing communication with specified persons and banning the use of mobile phones in the vicinity of an event. Many such provisions may be of debatable legality under national laws.

* Punishments for doping and other offences. There are several issues here. One is the seasonality of the sport; so that bans given at different times of the year may have different effects in a seasonal sport. In Olympic events athletes aspire to one big day every four years so that a ban just before the event will have a disproportionate effect. CAS awards have recognized this differential. Another issue is whether an immediate suspension from competition is justified whilst a disciplinary procedure is exhausted.

* A related issue is that of team punishments and whether it is permissible to punish the team for the infraction of an individual. In FIN v FINA (51), a CAS panel refused to intervene when the governing body banned the Italian water polo team from future competitions despite a plea that the sanctions were not fair and appropriate. Conversely in Anderson et al (52) where the US women's relay teams were disqualified because of a doping violation by one of the team. The other athletes argued that they had unfairly been stripped of their medals. In deciding the award the panel considered the IOC's argument that in order to safeguard sports from cheats they were required to annul any team results whenever a member of the team is found to have competed while being doped and that such a principle could be deduced from a general principle of lex sportiva even as here in the absence of a specific rule. The panel said that 'the Panel does not discard the theoretical possibility that an established principle of lex sportiva might serve as legal basis to impose a sanction on an athlete or a team. Needless to say, the existence of such principle must be convincingly demonstrated and must also pass the mentioned predictability test.' (53) The panel could find no clear evidence and accordingly permitted the athletes to keep their medals. The WADA Code deals with this issue for doping offences but requires two offences within a period before team sanctions shall be imposed on the team. (54)

* The issue of selection for events has been at the heart of several CAS awards. In such cases the traditional view that selection for an event was an issue solely the prerogative of selectors has been challenged and modified so that objective criteria need to be applied. A related problem is the right of international sporting federations to place limits on national teams in Olympics. In Boxing Australia v AIBA (55), a panel discussing the qualification system for the Olympic boxing tournament described equal opportunities to qualify as a 'requirement of a level playing field [that] is a lex sportiva principle to be respected by all sports governing bodies and protected by the CAS.' (56)

* The manipulation of nationality for sporting purposes. This can be done in several ways. Most sports allow looser criteria to qualify as a 'sporting national' than to become a citizen. Some athletes can exploit dual nationality. States may allow the manipulation of citizenship requirements, especially residency rules, to permit foreign players to become nationals. And in extreme case whole squads of athletes have changed nationality for financial reward to compete under a flag of convenience. (57)

Where does lex sportiva live?

The argument of international sporting federations is that lex sportiva is de-localized, that it is stateless and so is outside the jurisdiction and control of national laws. The policy substance behind this apparently theoretical argument is that thereby a policy of self regulation by international sporting federations is strengthened and troublesome litigation by athletes is defeated. Particularly in relation to bans for doping offences there was a degree of inconsistency in the approach of national courts with different countries apparently outlawing sentences of particular lengths. Here the freedom to remove these kinds of issues from the national legal systems into a transnational autonomous regulatory regime as established under the WADA Code was much needed. In the introduction to the 2009 Code it is stated that:

 'These sport-specific rules and procedures aimed at enforcing
 anti-doping rules in a global and harmonized way are distinct
 in nature from and are, therefore, not intended to be subject to
 or limited by any national requirements and legal standards
 applicable to criminal proceedings or employment matters.
 When reviewing the facts and the law of a given case, all courts,
 arbitral hearing panels and other adjudicating bodies should be
 aware and respect the distinct nature of the anti-doping rules in
 the Code and the fact that those rules represent the consensus
 of a broad spectrum of stakeholders.' (58)

This is a bold statement that tries to argue for a sport -specific approach and is a plea for transnational autonomy because the Code has been created by WADA, which is a hybrid transnational institution involving national governments as well as private sporting bodies.

A further leg of the argument for autonomy is the need for a sys-tem of harmonized principles to cover international sport. Such harmony cannot be achieved through the courts of many nations and so it is argued that sport requires a centralized tribunal which can implement the collective will of the international sporting community.

More legalistically, the notion of immunity for lex sportiva is per-haps simply an argument that CAS awards will be respected by national courts. The New York Convention permits mutual recognition and enforcement of awards in the courts of those nations that have accessed the Convention so long as arbitration awards meet minimum standards.

In addition the CAS holds to the fiction that all awards are given in Lausanne, Switzerland thereby giving the Swiss courts the final appeal. In cases such as Gundel, they have upheld the validity of awards. Rigozzi in a careful recent study concludes that the Swiss Supreme Court has 'emphasized that revision is an extraordinary legal remedy, to be used only in exceptional circumstances' (59) and that consequently 'for the athletes: the foregoing makes it clear that the CAS is becoming the only instance where they can assert their rights.' (60)

Ravjani has argued further that adjudication by CAS is an acceptable delegation of jurisdiction and competence by national courts to an international tribunal. This express, arguably in the case of WADA, or implied delegation thus validates the immunity from national courts that is claimed by arbitration tribunals such as CAS.

The absence of a further appeal from CAS is crucial. It is reinforced by contractual provisions whereby athletes must agree to forego any right of appeal. Being able to create and gain recognition for a self regulating micro legal system of arbitral awards is a considerable achievement. Mitten has concluded that to achieve the objective of a uniform, world-wide body of lex sportiva, a valid CAS award should bar post hoc relitigation of the merits of the parties' dispute under national or transnational law in a judicial forum.' (61)

The complex relation between national laws and lex sportiva as declared by CAS has two aspects. First can national laws be ignored or overturned? A study by Mitten argues that CAS has refused to 'use national law to invalidate clearly articulated international sports governing body rules.' (62) Second, would national courts recognize lex sportiva and accept it in preference to, or in contradiction to, its own laws and principles in a similar way that international law is treated? In the nearest recent example the British Columbia Court of Appeals rejected a claim that the exclusion of women's ski jumping from the 2010 Winter Olympics was unlawful discrimination under Canadian law. (63) The court refused to intervene against the IOC for refusing to include the event and concluded 'There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is [not] subject to the jurisdiction of this Court.' (64)

Conclusion

To summarise, lex sportiva has been much described and it is now clear that the jurisprudence of CAS has contributed to confirming that there is a clear field of transnational regulation of international sporting disputes. Within this field many norms created by international sporting federations and general legal principles are used and a global sports law has emerged. As a sub category, there are distinct principles here that are unique to sport. These I would prefer to be designated as 'lex ludica', precisely because that encapsulates the elusive 'spirit of the game', and distinguishes them from the application of other principles that are external but are applied to the sporting context as part of a wider lex sportiva.

The now well developed jurisprudence of CAS, which has been accelerated by the publication of most of its awards, has acquired a status that allows its awards to be recognized as final and unchallengeable. This confirms the desire of the international sporting institutions, especially the IOC and WADA, to be self-regulating and autonomous. Nevertheless it is arguable that the lex sportiva remains valid only within its own community and its own micro legal system. Like all varieties of global legal pluralism, a question remains as to its relation to other legal systems. National courts have retreated from intervening in sporting matters since Alternative Dispute Resolution has improved, WADA has proved an effective hybrid international institution of governance in doping matters and international sporting federations have juridified their rules and procedures. However it is noticeable that a reaction is setting in. As Casini argues 'national courts ... ... due to a lack of review mechanisms at the global level, have begun to act like review bodies over international organizations.' (65) Transnational law, including global sports law, has the capacity to create private realms of regulation and justice but such private justice is not necessarily a public good.

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Yi, D.H. (2006): Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal 6 Asper Review of International Business and Trade Law pp. 289-341

Zumbansen, P. (2006): Transnational Law in Smits, J. (ed.), Encyclopedia of Comparative Law. (Edward Elgar Publishing: Cheltenham) pp. 738-754

(1.) On the concept of transnational law see Zumbansen

(2.) Yi p.290-1.

(3.) Mitten & Opie p.21

(4.) FIFA v WADA, 2005/C/976 & 986,

(5.) Anderson et al v IOC, 2008/A/1545, published 16/07/2010

(6.) Ibid. para.128

(7.) Ibid. para.137

(8.) Lenard p.179

(9.) Nafzinger (2004a) p.50

(10.) Kaufmann-Kohler p. 365

(11.) Mitten & Davis p.81

(12.) Ibid p.88

(13.) 2009 A 1752 Vadim Devyatovskiy v IOC

(14.) Ibid. para 5.173

(15.) See Foster (2006) for a detailed discussion of CAS's jurisprudence.

(16.) In Galatasaray SK v. Frank Ribery & Olympique de Marseille, CAS2006/A/1180, the panel said that 'It is generally agreed by academics and commentators that the parties may choose to subject the contract to a sys-tem of rules which is not the law of a State. ... However, the parties freedom to agree a non-state law also has its limits, which derive from public policy. This results, not least, from the fact that even an arbitration court which has been authorized to decide ex aequo et bono is bound by these limits. (paras. 6 & 7)

(17.) See 0001/07 FAT, FIBA Arbitral Tribunal, para.6.1.1

(18.) Statutes of the Bodies Working for the Settlement of Sports-Related

Disputes (2010 Code) R45 'Law Applicable to the Merits'.

(19.) Erbsen

(20.) Ibid p.441

(21.) Ibid p.442

(22.) Ibid p.445

(23.) Nafzinger (2006) p.862 defined international sports law as 'the process that engages more or less distinctive rules, principles, procedures, and institutions which govern important consequences of transnational sports activity.'

(24.) Nafzinger (2004b) p.3

(25.) Gilson p.504

(26.) 2004/A/776

(27.) Ibid para.16

(28.) Carter (2004) p.798

(29.) Casini (2010) p.2

(30.) See Casini (2009) for a fuller discussion. 31 Casini (2010) p.3

(32.) Ibid p.4

(33.) Latty p.5

(34.) Foster (2003)

(35.) Papaloukas p.11

(36.) In the arbitral award 0001/07 FAT the Fiba Arbitral Tribunal said that the contract gave it exclusive jurisdiction rather than the national courts. It proclaimed 'One important "legal effect" resulting from a breach of the Contract obligations, is that the FAT, rather than the national courts, is competent to adjudicate any claims arising out of or related to the Contract.'

(37.) See CAS2010/O/2039 Fiji Association of Sports and National Olympic Committee v. Commonwealth Games Federation

(38.) Quoted in CAS2009/A/1752 Vadim Devyatovskiy v/IOC p.28

(39.) WADA code 2009 p.17

(40.) See Foster (2006)

(41.) See De Weger (2008)

(42.) Erbsen p.445

(43.) Beloff p.49. See also Joklik

(44.) Casini (2010) p.14

(45.) Foster (2006) p.421

(46.) A fuller discussion of some of these issues is in Foster (2006)

(47.) Beloff p.53

(48.) On the concept of fair play see Vieweg.

(49.) Las of Cricket, 2000 Code (MCC, London).

(50.) www.fairplayinternational.org/fairplay/the-essence-of-fair-play, accessed 06/09/10.

(51.) 96/157

(52.) 2008/A/1545

(53.) Anderson et al v IOC, 2008/A/1545 para. 128

(54.) WADA Code 11.2

(55.) 2008/O/1455

(56.) Ibid para.42

(57.) For more detail see Foster (2008)

(58.) WADA Code p.18

(59.) Rigozzi p. 263

(60.) Ibid p. 265

(61.) Mitten p. 65

(62.) Ibid p.64

(63.) Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Games, (2009) BCCA 522; 98 B.C.L.R. (4th) 141

(64.) Ibid para.132

(65.) Casini (2010) p.20.

by Ken Foster *

* Centre for Law, Society and Popular Culture, University of Westminster, United Kingdom. Paper presented on the author's behalf at the International Conference on Lex Sportiva, Universitas Pelita Harapan (UPH), Indonesia on 22 September 2010.