Brief overview of Sport Governance and Autonomy

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Sport has always been traditionally regulated through closed, self- governing networks comprising of its own rules and regulations. This has encompassed interdependence, resource exchange, the specific rules of the game and significant autonomy.[1] This autonomy has been related to wide concepts such as independence and narrower ones such as self-governance and self-determination. Herein, the types of autonomy that shall be debunked are political, legal and pyramidal.

Political autonomy can be understood as being the historical relationship between sporting organisations and the social and political environment. Szymanski relates it to the Lockean theory propagated by John Locke of classic libertarianism. This is where voluntary associations had the right to establish themselves and create their own rules and regulations. Additionally, the intertwining of state with sports can be traced back to Rousseau’s social contract theory.[2] This influenced the formation of the International

Olympic Committee, (IOC) which has been the supreme authority on all questions regarding the Olympic Movement. In the wordings of its charter, the respective National Olympic Committees must be free from any political interference or otherwise from national authorities.[3]

In furtherance of its autonomy, there exists the legal autonomy as a legal order in international sporting federations. This can be defined as the private autonomy of the organization to adopt rules and norms that have a legal impact in a legal framework opposed by the state at national or international level.[4] The ISPs claim to be immune from national regimes as they are non accountable to national legal regimes on other grounds. This claim arises from the transnational nature of its personality created by the sui generis set of principles from legal norms; this presupposes the self-regulation mechanism.[5] Beloff further argues that the nature of sporting federations is international in character because of three main elements;[5]

• it has transnational norms generated by the rules and practices of international sporting federations,

• it has a unique jurisprudence, with legal principles that are different from those of national courts, and which is declared by the Court of Arbitration for Sport, and

• it is constitutionally autonomous from national law.

Finally, there also exists the pyramidal autonomy in this context. This relates to how ISPs organize and govern sport in a basic pyramid structure. The pyramid structure relates to each ISP having a chain of command that translates from the apex, i.e. The ISP to the national and local federations. All the organisations in the pyramid are in their own geographical sphere of influence responsible for the regulation of athletics but they must “report” to the organisations that stand above them in the network. This doctrine is referred to as the Ein-Platz-Prinzip which stipulates that there can be one federation per geographic level in each sport.[6]

The globalisation of sport has increased the arguments of legal regulation on international sporting federations. This is because they have established themselves to be autonomous organisations that run independently of national governments. In light of this, the claim of autonomy ought to be deconstructed in light of international law. Dixon defines international law as any set of rules that govern inter-state relations and international actors and/or organisations in the international sphere and can be binding in nature.[7] In examining the relationship between International law and sports, Nafziger asserts that, ‘as an authoritative process of decision-making and legal discipline, international sports law is as much a matter of international law as of sports law.’ This can be interpreted to be because international sports law encompasses the jus commune which is the general principles of international law, whose roots stem form common law.[8]

They are autonomous organisations and are independent of national governments. As enshrined in international customary law. As such, the International Olympic Committee[9] operates almost as a quasi-state, and states are of course not triable in national courts by international law. However, universal principles of law such as ‘pacta sunt servanda, equity, the doctrine of proportionality cannot be ignored by international sporting federations, and they can and should be enforced by any available legal institution that has jurisdiction. Their universal character means that international sporting federations are not free to apply or interpret them as they wish.[10]

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[1] Rhodes, R.A.W, Understanding governance: policy networks, governance, reflexivity and accountability, Open University Press, 1997.

[2] Rousseau J, The Social Contract, Book 2, Chapter 3.

[3] Translated and adapted definition from “Pour être valablement reconnu par le C. I. O., un Comité national olympique doit remplir les conditions suivantes […] être indépendant et autonome” (International Olympic Committee, 1949, p.11).

[4] 58 Translated and adapted definition from “Les organisations sportives ne peuvent édicter des règles ou des normes de portée juridique que dans les limites de leur autonomie privé, c’est‐à‐dire dans le cadre que le droit étatique laisse à leur libre disposition “(Oswald, 2010, p.155)

[5] Foster K, Is there a Global Sports Law, Entertainment Law, Vol. 2, No. 1, Spring 2003, pp. 1–18. Lecturer in Law, University of Warwick

[6] Beloff M, Kerr T, Demetriou M Sports law. Hart, Oxford 1999.

[7] See www.sportsandtazatio.com/2015/4/the-pechstein-decision-the-end-of-sports-jurisdiction-as-we-know-it/

[8] Dixon M, Textbook on International Law, 7th Edition Oxford University Press, 2013.

[9] Nafziger J ‘Globalizing sports law’ Marquette Sports Law Journal 9, 1999.

[10] See Martin v. International Olympic Committee [1984] 740 F.2d 670 (9th Cir.) ‘a court should be wary of using a state statute to alter the content of the Olympic Games. The Olympic Games are organised and conducted under the terms of an international agreement – the Olympic Charter. We are extremely hesitant to undertake the application of one state’s statutes to alter an event that is staged with competitors from the entire world under the terms of that agreement.’