The-autonomy-of-sport-1

The autonomy of sport – Part 1

The autonomy of sport is important but it must be earned; it is not a right[1]. These were the words of Lord Moynihan during a recent House of Lords debate on governance in sport. It is easy for those involved, including supporters, to become part of the bubble that is sport. It acts as both a constant backdrop and prominent feature of countless lives across the world. The concept that sport is very much in its own sphere, completely separate from the rule of law and government, is one that is easy to believe. It is in fact far more complex than that. The nature of modern sport requires a level of autonomy to ensure that it runs smoothly and continues to develop but of course, as we have seen quite spectacularly this past year, free reign can lead sport into murky waters.

A-brief-history-of-sporting-autonomy

The increased popularisation of sport at the end of the 19th century naturally meant that many sports began to form organisations in a bid to help manage the nuances of each sport. These organisations enjoyed substantial freedom from the prying nature of government throughout the 20th century, despite the fact sport was playing an ever increasing role in the socioeconomic landscape.

The 1970s had seen an emergence in football hooliganism and problems with state-sponsored doping amongst athletes[2]. By 1976 the Council of Europe stepped in and introduced the European Sport for All Charter (later replaced by the European Sport Charter) which sought to tackle these issues. It wasn’t until the 1990s however that governments and law started to make some inroads into the autonomy of sport that was becoming increasingly bloated. 1995 saw the year of perhaps the most famous sport law case to date, the Bosman ruling[3].

The Bosman ruling involved the Belgian footballer Jean-Marc Bosman and the courts held that players in the European Union were entitled to move to another club at the end of their contract without any transfer fee being paid. The complete details of the case fall outside the scope of this piece however what should be highlighted is that those involved in football felt that the decision was an intrusion on the autonomy of sports organisations.

A steady increase in sporting related matters were brought before the courts, both domestically and in Europe, and the vast majority of decisions ruled in favour of the sporting organisations. Numerous calls were made by the sporting sector to establish legal exceptions for sport yet the Meca-Medina ruling[4], which concerned two long distance swimmers who had failed an anti-drugs test, seemed to go against these calls. The two argued that the drug rules set were incompatible with European law and were originally unsuccessful as it was cited that rules were purely for sporting reasons and had nothing to do with economic activity since the European laws relied on by the two swimmers were only applicable to economic activity. They did however win the appeal and it was held that these rules were considered an economic activity (thus breached laws) since the activity that takes part of paid employment for athletes. The complete details of the case are again outside the scope of this piece but the decision caused considerable unease amongst governing bodies in sport. It was a demonstration that the precedent was now going against the autonomous nature of sport and many felt it would harm the competitive nature of sport.

Today the two opposing attitudes are at a very volatile state. The uncertainty of how much autonomy sport holds has created further issues as sporting organisations look to push the boundaries of the concept. This is perhaps most accurately demonstrated in the allegations of how FIFA handled the bidding process for the 2018 and 2022 World Cups. Their actions may well force the hand of the law to clamp down heavily upon the freedom sport has enjoyed for so long.

For the moment however it is sport that has the advantage. In 2008 the Spanish government attempted to force the Spanish FA into holding early elections. Unamused by this FIFA quickly stepped in and threatened to ban Spain from participating in the upcoming European Championships. The Spanish government quickly backed down, accurately demonstrating the power of sport amongst those who love it and the power in sport by those running in.

This is a first in a two-part series on governance and autonomy in sport. The first piece will cover the history of sporting autonomy and how it has shaped modern sport. The second piece will look to analyse why autonomy is important but also how it can be used in a way which is fair and upholds integrity.

Links


References

[1] HL Deb 4 December 2014, vol 757, col 1456

[2] A brief history of anti-doping – World Anti-Doping Agency

[3] Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93

[4] David Meca-Medina & Igor Majcen v Commission of the European Communities (2004) T-313/02

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