Towards a 'lex sportiva'.

Blackshaw, Ian

Introductory

Is there such a thing as 'Sports Law'? Opinion on this subject is divided amongst academics and practitioners alike. (1)

According to the late Edward Grayson, the doyen of authors on sport and the law, jurisprudentially speaking, there is no such thing as 'sports law'. He argues that: "As a soundbite headline, shorthand description, it has no juridical foundation; for common law and equity creates no concept of law exclusively relating to sport. Each area of law applicable to sport does not differ from how it is found in any other social or jurisprudential category..." (2)

Likewise, Charles Woodhouse, CVO, the former legal adviser to the Commonwealth Games Foundation, a pioneer legal practitioner in the field of sport and a founder member of the British Association for Sport and the Law and the UK Sports Dispute Resolution Panel, is adamant that there is no such thing as 'sports law'. In a reflective valedictory article, he expresses his opinion as follows: "I have often said there is no such thing as sports law. Instead it is the application to sport situations of disciplines such as contract law, administrative law (disciplinary procedures), competition law, intellectual property law, defamation and employment law."

And adds in a slightly contradictory manner but then correcting himself: "I hope the next generation of sports lawyers will enjoy it as much as I have over the past 25 years. But do remember there is no such thing as sports law." (3)

Again, according to Hayden Opie, of the University of Melbourne, Australia, 'sports law' is one of those fields of law which is applied law as opposed to pure theoretical law: "Rather than being a discipline with a common legal theme such as criminal law, equity or contract law, sports law is concerned with how law in general interacts with the activity known as sport. Hence, the label applied is law. Yet there is an increasing body of law which is specific to sport. This produces debate among scholars over whether one should use the term sports law, which indicates a legal discipline in its own right or 'sport and law' which reflects the multifarious and applied nature of the field." (4)

On the other hand, Beloff, Kerr and Demetriou, all practitioners, recognise the emergence and importance of 'sports law': "..... the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport, differently from other activities or bodies. Discrete doctrines are gradually taking shape in the sporting field....... English courts are beginning to treat decisions of sporting bodies as subject to particular principles." (5)

In other words, sport is 'special' and, as such, is deserving of 'special treatment' from a legal point of view. This is certainly true at the EU level reflecting the views of the European Commission and the European Court of Justice, where the term the 'specificity of sport' (also referred to, particularly by Sports Governing Bodies, as the 'sporting exception') has been coined and is widely used in various Commission rulings and Court decisions in sports cases. (6) This term refers to the special characteristics and dynamics of sport recognised in the EU Council of Ministers Nice Declaration on Sport of December 2000. (7) And further recognised in the European Commission 'White Paper' on Sport of July 2007. (8)

Likewise, Lewis and Taylor, both academics and practitioners, have the following to say on the subject of 'sports law': "...... the editors share the belief of many writers in the field that in at least some areas, for example where international institutions such as the Court of Arbitration for Sport review the decisions of sports governing bodies, a separate and distinct body of law inspired by general principles of law common to all states is in the process of development." (9)

So, leaving aside the argument whether there is such a thing as 'sports law' (a 'Lex Sportiva') - the author of this Paper, incidentally, takes the view that there is - which, Lewis and Taylor consider is a matter of academic rather than practical interest, (10) we turn now to consider the contribution of the Court of Arbitration for Sport to the development of a 'Lex Sportiva'.

CAS and a 'Lex Sportiva'

During its 26 years of existence, the CAS has dealt with a substantial number of cases covering a wide range of sports related legal issues. For example, a contractual dispute concerning the organisation of a particular sport's world championships; (11) the equivalent of a 'judicial review' of a decision of a particular sports governing body; (12) a challenge to the UEFA Rules restricting the multiple ownership of football clubs (the so-called ENIC case) (13); as well as an increasing number of football transfer cases on appeal from the FIFA Dispute Resolution Chamber, following the acceptance by FIFA in 2002 of the CAS as the final 'court of appeal', especially compensation disputes. (14)

More recently, the CAS, on appeal from a ruling of the IAAF, dealt with the interesting case of Oscar Pistorius, the South African double leg amputee, and his claim to take part in the 2008 Beijing Olympics as if he were an able-bodied athlete. Although he won his appeal before CAS, in the event, he did not, in fact, qualify for a place in the Beijing Olympics. However, it should be noted that the Decision does not create a legally binding precedent as the President of the CAS Panel, Professor Martin Hunter, pointed out in the Ruling as follows:

"3. It is emphasised that the scope of application of this Ruling is limited to the eligibility of Mr Pistorius only and, also, only to his use of the specific prostheses in issue in this appeal.

4. It follows that this Ruling has no application to the eligibility of any other amputee athletes, or to any other model of prosthetic limb; and it is the IAAF's responsibility to review the circumstances on a case-by-case basis, impartially, in the context of up-to-date scientific knowledge at the time of such review."

Although CAS arbitrators are not generally obliged to follow earlier decisions and obey the sacred Common Law principle of 'stare decisis' (binding legal precedent), (15) in the interests of comity and legal certainty, they usually do so. As a result of this practice, a very useful body of sports law is steadily being built up. (16) But, see the conflicting approaches taken by two different CAS Panels on valuing an anticipatory breach of a player's contract in the CAS Appeal Cases of Andrew Webster and Matuzalem. (17) The approach taken in the second Case, in the opinion of the author of this Paper, being the correct and preferred one!

The extent to which the CAS is contributing to a discrete body of sports law ('lex sportiva') is a complex and controversial subject and also, as we have seen in relation to 'sports law', also divides academics and practitioners alike. For example, Ken Foster, who is generally credited with coining the term 'lex sportiva', argues that the CAS, as an institutional forum, is not yet: "... globally comprehensive ... [but] has improved by becoming more independent of the International Olympic Committee and thus satisfying Teubner's criterion ofexternalisation." (18)

And, according to Professor Jim Nafziger, the CAS 'lex sportiva' although "still incipient", the general principles and rules derived from CAS Awards are becoming clearer on such issues as: "... the jurisdiction and review powers of the CAS; eligibility of athletes; and the scope of strict liability in doping cases..... A truly effective body of jurisprudence generated by CAS awards, however, will require more development before the emerging lex sportiva can become a truly effective regime of authority." (19)

In Nafziger's view, if there is not yet a 'lex sportiva' as a result of CAS Awards, which, as he also points out, in any case, like Arbitral Awards generally, are legally binding on and only have legal effects between the parties (inter partes), there is certainly, in his opinion, a 'lex specialis' being established through CAS Decisions.

One area of sports law in which the CAS is developing a particular body of jurisprudence is, sadly, in doping cases. Indeed, in its Award in Norwegian Olympic Committee and Confederation of Sports (NOCCS) & others v International Olympic Committee (IOC),20a doping case, the CAS Panel held that the CAS has a distinct jurisprudence, expressed in the following terms: "CAS jurisprudence has notably refined and developed a number of principles of sports law, such as the concepts of strict liability (in doping cases) and fairness, which might be deemed as part of an emerging 'lex sportiva'. Since CAS jurisprudence is largely based on a variety of sports regulations, the parties' reliance on CAS precedents in their pleadings amounts to the choice of that specific body of case law encompassing certain general principles derived from and applicable to sports regulations." (21)

The legal challenges and limitations facing CAS in developing a consistent approach to such cases is well covered by Frank Oschutz, a German Attorney, in his study entitled 'Doping Cases before the CAS and the World Anti-Doping Code'. (22) According to Oschutz: "The Court of Arbitration for Sport offers a unique opportunity of international decision making in the world of sport.....The awards rendered by the various arbitrators prove that the CAS can provide effective protection for the rights of the accused athlete and is likewise able to ensure that the fight against doping will be upheld unremittingly..... the CAS has developed a quite impressive body of decisions which deal with all kinds of challenges." (23)

Oschutz has some very interesting observations to make on certain disparities on the interpretation by CAS of the legal nature of the doping offence itself as follows: "On the one hand, there are Panels which have stressed that the nature of a doping offence is one of pure strict liability, that is, a liability without fault. Consequently, there is no need to address the issue of intent or negligence at any stage of the proceedings. If an athlete is found with a forbidden substance he has to be sanctioned for a doping offence - period. However, some Panels, which applied the rules of strict liability, also felt the need to soften the harsh consequences of such a regime for athletes who committed the offence neither intentionally or negligently. In the eyes of these arbitrators, the athletes should enjoy the right to escape liability by providing evidence that the violation of the anti-doping rule was committed without their fault. So, the intentional element - that does not exist in a strict liability offence - sneaked in by the back door. On the other hand, there are more and more awards in which the Panels applied a rebuttable presumption of guilt if an athlete is found with a forbidden substance in his body. This athlete may adduce evidence that he or she did neither act intentionally, nor negligently. Consequently those Panels would not apply the concept of strict liability. However, one may also perceive a certain degree of misunderstanding of those two different legal concepts in some CAS decisions." (24)

To a certain extent, the question of mitigation in doping cases has been clarified by the WADA Code and its recent revision, which came into force on 1 January, 2009, and this should perhaps lead to a more consistent approach in CAS doping decisions in future.

In any case, as Oschutz further points out, the CAS is not in a position to create its own rules in the fight against doping but must interpret and apply the rules of the relevant Sports Governing Body: "The CAS is a judicial authority, limited to the control of decisions, which are based on the rules of the sports governing bodies. The CAS is bound to apply existing bodies of rules and the law to certain facts, cf Art R58 of the Code. In doing so, the arbitrators may interpret these rules according to certain standards, but they must refrain from rewriting them.

To the knowledge of the author of this Paper, some CAS arbitrators consider - quite wrongly - that they can ignore the rules in doping cases and decide cases on the basis of fairness alone, justifying this point of view on the basis that in appeal cases they can deal with the case de novo, pursuant to the provisions of Article R57 of the CAS Code of Sports-related Arbitration, which provide that "[t]he Panel shall have full power to review the facts and the law ..." and also relying on the fact that the CAS has become the 'Supreme Court of World Sport'. In effect, such CAS Panel members are claiming to be free to rewrite the applicable legal rules in the interests of what they consider to be fairness in the circumstances of the particular case. This is a dangerous course of action and not conducive to legal certainty. Or put another way, is contrary to a so-called 'rule of sports law'. Fortunately, such CAS members tend to belong to the so-called 'old guard' of sports lawyers! The so-called 'blaserazzi'. It should perhaps be added that other sports organisations also suffer - to some degree or another - from the same phenomenon!

So, what are the general principles that CAS should and generally does follow?

General Principles of CAS Jurisprudence

Ken Foster, Emeritus Professor of Law at Warwick University, who is generally credited with having coined the phrase 'Lex Sportiva', has identified the following general principles, which he considers to underscore the emerging jurisprudence of the CAS.26 And they are worth setting out in extensu as follows:

"..... [these] principles [fall] into five main categories:

1. Lex ludica: these are the rules of the game. There is a self-imposed reluctance on the Court of Arbitration for Sport to interfere with what it considers to be purely sporting matters. This covers not only the obvious refusal to reopen decisions made by match officials, but issues that are essentially about the nature of sport in a wider sense.

2. Good governance: this covers the proper standards that are legally required of decision making within a private organisation that has disciplinary power over athletes. Specifically, it encompasses having clear authority in the rules to make a decision (the ultra vires principle); avoiding arbitrary decision making by decreeing that a sporting federation cannot be the sole arbiter of the interpretation of its rules; not acting in bad faith; not making such unreasonable decisions that no reasonable body could have reached them; and using transparent and objective criteria in reaching its decisions.

3. Procedural fairness: these are a set of minimum standards that sporting federations must follow in hearing disciplinary matters.

4. Harmonization of standards: as an international body, the Court of arbitration for Sport tries to ensure consistency. The general principles that it formulates should apply to all federations. So it harmonises standards. This policy also entails formulating the principle that international sporting federations have primacy over national federations, and exercising a supervisory function over the rulebooks of federations, suggesting amendments where necessary.

5. Fairness and equitable treatment: the Court of Arbitration for Sport has a major function to achieve fairness in individual cases. This has been especially evident in its approach to penalties. It has disapproved of automatic fixed penalties; followed the principle of proportionality; and required sanctions to 'fit the crime'. It has also, where appropriate, followed the principles of legitimate expectation and of estoppel."

All these principles identified and enunciated by Foster have been distilled from Decisions rendered over the years by the CAS, several of which he cites and discusses in his contribution to the Court of Arbitration for Sport 1984-2004 Book, of which the author of this Paper is one of the Editors, and which principles continue to influence CAS Decisions at present and in the future. Thus, providing for all those involved in sports disputes a useful body of legal precedents.

For example, a landmark CAS ruling on the application of the rules of the game/rules of law principle involving a boxer who challenged the referee's decision on a disqualification for a punch below the belt and whether such a dispute was arbitrable or not, the Panel limiting itself to the question whether the referee's decision violated the 'general principles of law'. (27)

As Allan Erbsen, of the University of Minnesota Law School, Minneapolis, USA, concludes in his contribution to the same Book: (28) "CAS's jurisprudence fills what until recently was a disturbing legal vacuum in international sports. Before the creation of CAS, the rights and obligations of athletes and officials were ill-defined and were enforceable - if at all - only through costly and lengthy litigation in national courts or in arbitration before tribunals staffed by the same sports federations whose actions the tribunals were asked to judge. Legal claims were thus difficult to frame, difficult to pursue, and, for political outsiders, difficult to win. CAS has thus made litigation a more viable remedy and deterrent......, spotlighting legal norms on a stage where law previously played a more marginal role."

Lex Sportiva compared with Lex Mercatoria

In an endeavour to define the nature of 'sports law', the Lex Sportiva has been compared and contrasted by several academics and commentators on 'sports law' with the Lex Mercatoria - the 'Law Merchant'. The body of rules developed in the Middle Ages and derived from the established customs of merchants in their dealings on a global basis and recognised and enforced in the ordinary civil courts.

According to Andrew Caiger and Simon Gardiner: "The relative autonomy of sports is perhaps most closely mirrored by the Lex Mercatoria......... This analogy with the Lex Mercatoria allows sports law to develop distinctiveness and an incremental formation. It encourages sports organisations to reconsider their own rules and mode of governance in the light of dominant legal norms. This process of acculturation allows and promotes a convergence between the Lex Sportiva and the dominant legal norms." (29)

Again, according to Gardiner: "The analogy between lex mercatoria and a lex sportiva or sports law is germane: both respect a degree of autonomy, both acknowledge cultural specificities, both are part of a pluralist and complex normative rule structure, and both acknowledge the need for international emphasis in terms of legal regulation. Lex mercatoria, or the Law Merchant, was the legal doctrine developed in the Middle Ages by special local courts in Britain and elsewhere. These Merchant Courts had judges and jury who were merchants themselves and would apply the lex mercatoria as opposed to local law. An analogy can be made with the Court of Arbitration for Sport and the view that it is developing a specific doctrine of international sports law." (30)

Another similarity between the Law Merchant and the Court of Arbitration for Sport is that both bodies may settle disputes ex aequo et bono; in other words, applying a general principle of fairness or equity.

The CAS itself expressed the position well in 1998 in the so-called ENIC case, mentioned above, as follows: "Sports law has developed and consolidated along the years, particularly through the arbitration settlement of disputes, a set of unwritten legal principles - a sort of lex mercatoria for sports or, so to speak, a lex ludica - to which national and international sports federations must conform, regardless of the presence of such principles with their own statutes and regulations or within any applicable national law." (31)

An extensive and comparative review on the relationship between the Lex Sportiva and the Lex Mercatoria has been undertaken and published in The International Sports Law Journal (ISLJ) by Boris Kolev, Co-chairman of the NGO, Bulgarian Legal Society, which conducts research on the rights of sportsmen, and also a Member of the Advisory Board of the ISLJ. (32) Although there are a number of similarities between the two legal systems, there are also several important and practical differences. Kolev writes: "Sports law is highly potential to become a world law similar to mercantile law. The universally accepted rules of more than 200 games and universally accepted principles governing competitions at world level, significance of sport for demonstration of individual and national values, globalization of sport, are part of the conditions precedent for this to happen. However, the comparison with Lex Mercatoria reveals some important differences which might be relevant for the future development of sports law as a world law. A statement saying that the community of merchants is held together by common traditions and common trust does not seem to be applicable to contemporary sport, which, especially in recent years, departs from the Corinthian values of playing a game because of the love of that game. Nowadays, the result of the competition does not have only sporting implications but further determines who is going to get the better sponsor. Commercialization of sport invokes the need for protection of different and very often conflicting interests of the stakeholders in sport. Sports federations are often criticised for pursuing their own commercial interests without taking into account and sometimes even to the detriment of the interests of sportsmen. However, in view of the conflicting interests in sport, the role of CAS is very important and the consistent resolving of disputes might significantly contribute to the idea for the creation of an independent body of law capable of restoring and maintaining justice in sport. Evidence of the increasing role of CAS are the more frequent use of arbitration clauses in the contracts between sponsors, federations and clubs; the trend for increasing the volume of cases reaching CAS; and the number of sports federations admitting the authority of CAS to resolve the disputes in their particular sports. On the other hand, CAS is an institution for settlement of civil law disputes; it is not an administrative or constitutional court, before which provisions of sports regulations could be challenged on the ground of contradiction with acts staying higher in the hierarchy of the legal instruments. Furthermore, CAS is not entitled to review the substance of the decision-making process but only the procedure and the power of the particular bodies to pass the decision in issue. Although CAS has a lot of common characteristics with an international court it is not a court. An opinion has been expressed that CAS could develop into an instrument of "constitutional" review and standard-setting in the realm of international sports law; however, this is still not the case and the regulations of sports associations may be scrutinized on the basis of national laws. The incentive for clubs and sportsmen to refer their cases to the courts as well as their mistrust and suspicion of the federations will remain present until their interests are adequately safeguarded through their participation in the decision-making process especially as regards matters of primary concern for them. The lack of democratic rule-making process and credibility in respect of the actions of sport governing bodies further handicaps the possibilities for recognition of Lex Sportiva by the national laws of the States. Another difference with Lex Mercatoria is the fact that CAS cannot apply Lex Sportiva through the application of the national law of a particular State as could be the case with Lex Mercatoria due to the fact that national laws usually have not incorporated Lex Sportiva. Very often, certain cases would have diametrically opposite outcomes under national laws in comparison with their potential outcomes under the law of international sports federations based on the principle of freedom of association due to conflicting provisions of national sports or employment laws. Lex Sportiva may apply to relations in sport also as an autonomous body of law, which is to be recognized as such by national laws; however, this is still not the case either. A review of modern court practices would show a third option for enforcement of Lex Sportiva - if the rules of Lex Sportiva constitute mandatory rules reflecting a public policy so commanding that they must be applied even if the general body of law to which they belong is not competent by application of the relevant rule of conflict of laws."

Kolev concludes his review with the following pertinent remarks: "However, being a private arbitration system and not a universally recognized court including by the EU Member States by virtue of an international treaty, the CAS awards will be subject to enforcement proceedings in the countries where the enforcement is sought and, therefore, their conformity with the public policy and mandatory rules in operation in such countries will be reviewed by the national courts. (33) In countries like Bulgaria and Hungary, for example, employment related disputes are not subject to arbitration at all and national courts have exclusive jurisdiction over employment disputes. It is true that FIFA ensures the compliance of the parties with the award not through the assistance of national courts but rather through threatening the parties with disciplinary sanctions. The latter, however, together with the already mentioned deficits of Lex Sportiva as a concept, as well as the mandatory reference to arbitration of players and clubs imposed through the by-laws of their federations, could threaten the recognition of CAS as a valid arbitration system and do not in any manner contribute to the idea of an objective, just, transparent, self-integrated and universally accepted international sports law or Lex Sportiva."

Lack of Publicity

However, one of the difficulties faced by the CAS in developing a 'Lex Sportiva' stems from the fact that, generally speaking, CAS proceedings and decisions are a matter of private law and confidential to the parties. CAS by its nature is a private arbitral body. And therein lies the paradox - the need, on the one hand, of the sporting community 'not to wash its dirty sports linen in public'; and, on the other hand, the need of a wider public to know how cases are being decided, including details of the evidence adduced to the CAS, particularly for future guidance and reference.

However, one of the difficulties faced by the CAS in its desire to develop a 'Lex Sportiva' and provide some degree of legal certainty and consistency stems from the fact that, generally speaking, CAS proceedings and decisions are a matter of private law and confidential to the parties. CAS by its nature is a private arbitral body. And therein lies the paradox - the need, on the one hand, of the sporting community 'not to wash its dirty sports linen in public'; and, on the other hand, the need of a wider public to know how cases are being decided, including details of the evidence adduced to the CAS, particularly for future guidance and reference. As regards the confidentiality of CAS Ordinary Proceedings, Article R43 of the CAS Code of Sports-related Arbitration 2010 provides as follows: "Proceedings under these procedural rules are confidential. The parties, the arbitrators and the CAS undertake not to disclose to any third party any facts or other information relating to the dispute or the proceedings."

However, the last sentence of this Article provides the following exceptions to the general rule of confidentiality: Awards shall not be made public unless all parties agree or the Division President so decides."

However, as regards the confidentiality of CAS Appeal Proceedings, Article R59 of the CAS Code of Sports-related Arbitration 2010 provides in para. 5 as follows: "The award, a summary and/or a press release setting forth the results of the proceedings shall be made public by the CAS, unless both parties agree that they should remain confidential."

Thus, in CAS Appeal cases, the emphasis is more on publication of the Awards and less on confidentiality, unless both parties agree otherwise, and, therefore, in this particular respect, this provision goes some way towards encouraging the development of a 'Lex Sportiva' (see below).

In practice, more CAS Awards are being published, (34) especially on the CAS official website. (35) In fact, the CAS itself is interested in developing a Lex Sportiva as the following extract at page xxx from Volume II of the CAS Digest of Awards makes clear: "The "Digest of CAS Awards 1986-1998" recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world."

Furthermore, as the work of the CAS continues to expand and becomes more widely known and discussed, especially in press reports and articles, the need for such publicity also increases. In fact, a 'public interest' argument comes into play and needs to be satisfied in appropriate cases. (36) But, in this context, what interests the public is not necessarily the same as what is in the public interest! (37)

Conclusions

It is clear from the above discussion that the CAS is in the process of developing a useful 'Lex Sportiva' based on its many Awards rendered to date and the general principles derived from them. And, with its increasing work load, this should lead to consistency and certainty in the future regarding such matters as the jurisdiction and review powers of the CAS and, in turn, lead to a timely, fair, effective and relatively inexpensive settlement of sports-related disputes for the benefit of the sporting world and its various stakeholders and constituents.

But, as Professor Nafziger points out: "A truly effective body of jurisprudence generated by CAS awards, however, will require more development before the emerging lex sportiva can become a truly effective regime of authority." (38)

Much will depend, however, as has been noted above, upon the transparency and availability of CAS Decisions/Awards and a willingness of CAS arbitrators to lay down clear principles and also follow them in future similar cases in a clear and consistent manner. Some inconsistencies have been observed in certain doping cases, for example, as noted above. Equally, the competence and independence of CAS arbitrators is a crucial ingredient in the process of achieving these laudable aims and results. With, in the words of the first ICAS/CAS President, the late Judge Keba Mbaye: "a stature that inspires confidence and respect" to match.

* Paper presented at the Ithaca College Europe Olympic Law Conference, London, 19May 2011

(1.) See Gardiner, James, O'Leary, Welch, Blackshaw, Boyes and Caiger, Sports Law Third Edition (2006), London: Cavendish Publishing, pp 88 - 91 for a review of the arguments for and against a distinct/discrete body of law called 'sports law' (under the section title of 'Viva Sports Law - Sport and the Law RIP') and the general conclusion of the authors as follows: "As an area of academic study and extensive practitioner involvement, the time is right to accept that a new legal area has been born and is thriving in the 'bloom of its youth' - Viva sports law."

(2.) Grayson, Edward F, Sport and the Law (1999), London: Butterworths, p xxxvii.

(3.) Woodhouse, C, 'The lawyer in sport: some reflections' (1996), 4(3) Sport and the Law Journal, p 14.

(4.) Opie, H, 'Sports associations and their legal environment', in McGregor-Lowndes, M, Fletcher, K and Sievers, S (eds), Legal Issues for Non-Profit Associations, Sydney: LBC, pp 74-94.

(5.) Beloff, M, Kerr, T, and Demetriou, M, Sports Law (1999), Oxford: Hart, p 3.

(6.) See the EU 'White Paper on Sport' published on 11 July, 2007 (COM(2007) 391 final); see also the European Court of Justice Decision in David Meca-Medina and Igor Majcen v Commission (C-519/04 P) defining the limits of the so-called 'sporting exception' to EU Law in general and EU Competition Law in particular. See also Blackshaw, Ian, 'The Specificity of Sport and the EU white paper on Sport', 10 October 2007, at pp 14-16.

(7.) 'Declaration on the specific characteristics of sport and its social function in Europe', Presidency Conclusions, Nice European Council meeting, 7-9 December 2000; see http://europa.eu.int/comm/sport/index.html for the text of this Declaration.

(8.) There is now also a so-called 'Sport Article' in the TFEU (Article 165).

(9.) Lewis, Adam, and Taylor, Jonathan, Sport: Law and Practice, (2nd edition 2008) London: Bloomsbury Professional, p vii.

(10.) Ibid..

(11.) International Triathlon Union v Pacific Sports Corpn,, CAS 96/161.

(12.) FFSA v FISA, CAS 97/168. In that case, the FFSA challenged the adoption by an Extraordinary Congress of the FISA to adopt a new By-law relating to "Commercial Publicity, Sponsorship and Advertising". The CAS rejected the arguments of the FFSA that the Extraordinary Congress did not have jurisdiction to make such a decision, but accepted that the procedure followed in adopting the amendment without allowing for a considered discussion of an important change to the By-laws was in breach of the FISA Statutes, and, accordingly, the CAS declared the decision void.

(13.) AEK Athens and Slavia Prague v UEFA, CAS 98/200.

(14.) For two recent important examples of football cases - interestingly, the second CAS decision overruling the first (and, in the opinion of the author of this Paper, quite rightly so!) - on compensation for unilateral premature termination by a football player of his contract of employment with his Club, see Wigan Athletic FC v Heart of Midlothian, CAS 2007/A/1298; Heart of Midlothian v Webster & Wigan Athletic FC, CAS 2007/A/1299; Webster v Heart of Midlothian, CAS 2007/A/1300 (the Webster Case); and FC Shakhtar Donetsk (Ukraine) v/ Mr. Matuzalem Francelino da Silva (Brazil) & Real Zaragoza SAD (Spain) & FIFA; CAS 2008/A/1520 - Mr. Matuzalem Francelino da Silva (Brazil) & Real Zaragoza SAD (Spain) v/ FC Shakhtar Donetsk (Ukraine) & FIFA, CAS 2008/A/1519 (the Matuzalem Case).

(15.) See UCI v J. 7NCB, CAS 97/176 Award of 28 August 1998, 14; and also the Webster and Matuzalem Cases cited in footnote 13 above.

(16.) See further on this, Nafziger, J, 'Arbitration of Rights and Obligations in the International Sports Arena', (2001) 35(2) Valparaiso University Law Review 57; Nafziger, James A.R., International Sports Law, Second Edition (2004), Ardsley, NY, Transnational Publishers, Inc. (ISBN 1-57105-137-6), pp 48-61; and Blackshaw, I, Siekmann, R.C.R. & Soek, J (Eds.), The Court of Arbitration for Sport 1984-2004, (2006) The Hague, The Netherlands, TMC Asser Press (ISBN 978-90-6704-204-8), pp 409-454. See also Blackshaw, I, Mediating Sports Disputes: National and International Perspectives, (2002) The Hague: TMC Asser Press.

(17.) Commentaries on these CAS Appeal Cases by Juan de Dios Crespo Perez, ISLJ 2010/3-4.

(18.) Foster, K, 'Is there a Global Sports Law?' (2003) 2 (2) Entertainment and Sports Law Journal, 1. Teubner's criterion of externalisation applied to CAS is represented by an 'external arbitrator' who is able to make decisions amounting to 'official and organised' law.

(19.) Nafziger, J, 'The Court of Arbitration for Sport: the emerging lex sportiva' in Blackshaw, Siekmann & Soek, op cit, pp 409-419.

(20.) CAS 02/O/372.

(21.) Ibid., para 65, n 15.

(22.) See pp 246-265 in Blackshaw, Siekmann & Soek, op cit.

(23.) Ibid. at p 264.

(24.) Ibid. at pp 252-256.

(25.) See fn 16 supra.

(26.) Foster, Ken, 'Lex Sportiva and Lex Ludica: The Court of Arbitration for Sport's Jurisprudence' in Blackshaw, Siekmann & Soek, op cit, pp 422 & 423.

(27.) CAS JO 96/006, M v AIBA.

(28.) Erbsen, Allan, 'The Substance and Illusion of Lex Sportiva' in Blackshaw, Siekmann & Soek, op cit, pp 422 & 423.

(29.) Cagier, A and Gardiner, S (eds), Professional Sport in the European Union: Regulation and Re-regulation, (2000), The Hague: Asser, pp 301 & 302.

(30.) Gardiner, James, O'Leary, Welch, Blackshaw, Boyes and Caiger, Sports Law Third Edition (2006), London: Cavendish Publishing, p 93.

(31.) CAS 98/200 AEK Athens & SK Slavia Prague v Union of European Football Associations (UEFA), p 102.

(32.) Kolev, Boris, 'Lex Sportiva and Lex Mercatoria', ISLJ 2008-1/2, pp 57-62.

(33.) It should perhaps be added here that 'exequatur' proceedings to enforce a CAS Award, which is considered to be an International Arbitral Award, will, generally speaking, only be required in those countries that have not acceded to the New York Convention of 1958.

(34.) The Secretary General of CAS, Matthieu Reeb, has edited and published three Digests of several CAS cases covering the periods 1986-1998; 1998-200; and 2001-2003. A further volume in the series is expected shortly.

(35.) 'www.tas-cas.org'. The CAS official web-site under the title 'Jursiprudence' contains a new section, entitled, 'Archive', which, at the time of writing is still being developed and expanded. Once this section is completed, it will be interesting to see how comprehensive it is and what it covers.

(36.) See, for example, the Decision in the Gaia Bassani Case (CAS 2003/O/468), where the author of this Paper was the Sole Arbitrator and, because of the particular circumstances of the case and the need for a wider audience to know about the case and its outcome, directed that the Decision be published.

(37.) On this point, see the discussion in the English case of Lion Laboratories Ltd v Evans [1984] 2 All ER 417.

(38.) Nafziger, James A R, International Sports Law, (2004) Second Edition, Ardsley, New York: Transnational Publishers, Inc., p 61.

by Ian Blackshaw **

** Prof. Ian Blackshaw is an International Sports Lawyer and Academic, and Fellow of the ASSER International Sports Law Centre, The Hague, The Netherlands.