Abstract
In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, and has important implications for global dispute resolution. For example, the global processes used to establish an international sports antidoping code and to resolve a broad range of Olympic and international sports disputes (which is rapidly creating a body of global private law) provide paradigms of international cooperation and global lawmaking. In addition, judicial resolution of sports-related cases may develop jurisprudence with new applications and influence. Our objective is to generate greater awareness of the importance of sports, not only as a worldwide cultural phenomenon and a significant part of the twenty-first-century global economy, but as a rich source of international and national public and private laws that provide models for establishing, implementing, and enforcing global legal norms.
Previously published in: 85 Tulane Law Review 269 (2010).
Professor of Law and Director, National Sports Law Institute and LL.M. in Sports Law Program for Foreign Lawyers, Marquette University Law School; and Member, Court of Arbitration for Sport, Lausanne, Switzerland and Director of Studies, Sports Law Program, Melbourne Law School, The University of Melbourne, Australia; Foundation President and Life Member of the Australian and New Zealand Sports Law Association, respectively.
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Notes
- 1.
- 2.
See generally Mitten 2009.
- 3.
According to the 2009–2010 Association of American Law Schools Directory of Law Teachers, there are only 120 professors who teach sports law, while there are approximately 340 antitrust law, 1800 constitutional law, and 360 labor law professors. Antitrust, constitutional, and labor law are three of the most significant areas of public law that regulate sports in the United States. Ass'n of Am. Law Sch., 2009–2010 Directory of Law Teachers (2009–2010).
- 4.
See generally Lazaroff 2001; Yablon 1994. A number of the landmark rulings of the High Court of Australia have occurred in the context of sporting activity. See, e.g., Wyong Shire Council v Shirt (1980) 146 CLR 40 (Austl.) (discussing the standard of care in the tort of negligence and holding that signage incorrectly identifying “deep water” caused water-skiing accident on lake); R v Judges of the Fed. Court Austl.; Ex parte W. Austl. Nat'l Football League Inc. (1979) 143 CLR 190 (Austl.) (discussing the meaning of federal corporations power conferred by the Australian Constitution s51(xx) and holding that professional football clubs are trading corporations); Victoria Park Racing & Recreation Grounds Co. v Taylor (1937) 58 CLR 479 (Austl.) (discussing the nature of property and holding that a horse-racing track had no rights to an event and was therefore unable to prevent radio calls of races originating from a structure overlooking the track). The late Edward Grayson, widely recognized as “the father” of English sports law, wrote in 1993 about the peculiar ability of sports to raise novel legal issues on which high appellate courts could differ. He illustrated this proposition by reference to seven decisions of the Court of Appeal on sports, which had been overruled on further appeal to the House of Lords. Grayson 1993a.
- 5.
The first treatises on sports law in both the United States and Australia were not published until the late 1970s and 1980s. See, e.g., Kelly 1987; Shubert et al. 1986; Sobel 1977; Weistart and Lowell 1979. The first U.S. sports law casebook (Yasser et al. 1990) was not published until twenty years ago. The first Canadian treatise was published in 1983. Barnes 1983. Neither author of this Article took a sports law course during study for his first law degree. Similarly, the academic study of sports law in leading European countries such as Switzerland, Great Britain, Germany, France, and Italy did not gain real momentum until the early 1990s, although there are earlier treatises. See, e.g., Grayson 1988; Klose 1989; Toro and Canepele 1980.
- 6.
For an overview of this debate about the nature of sports law and whether the area displays the unique and coherent characteristics of a discreet body of law or is one where principles from more settled legal disciplines are found to have particular applications, see generally Gardiner et al 2006; Davis 2001; see also Halgreen 2004 (suggesting a framework for determining the content of sports law).
- 7.
Some U.S. (e.g., Marquette University Law School, Florida Coastal School of Law, and Tulane University Law School) and Australian (e.g., Melbourne Law School) law schools now offer very popular specialized programs of study in sports law as part of their J.D. and/or LL.M. curriculums.
- 8.
Sports provide many illustrations and examples that can be used to facilitate classroom teaching and learning, including usage by law professors to enhance student understanding of other legal doctrines. For example, cricket and goaltending can be used to teach cause-in-fact doctrine in tort and criminal law. See Fraser 2005. Sports also may be used to enliven a drowsy class by mentioning a judicial opinion or fact scenario involving a sports-related incident or a celebrity athlete. Sport is a setting in which judges can be carried away (or least depart from their aura of stateliness) much to the entertainment of students and observers. In Zhu v Treasurer of New South Wales, a case concerning the tort of inducing breach of contract, the High Court of Australia in a joint judgment observed in the opening sentence: “It is a truth almost universally acknowledged—a truth unpatriotic to question—that the period from 15 September 2000 to 1 October 2000, when the Olympic Games were held in Sydney, was one of the happiest in the history of that city. The evidence in this case, however, reveals that the preparations for that event had a darker side.” (2004) 218 CLR 530, 535 (Austl.). Regarding American jurisprudence, one author stated:
“There was something about baseball that turned cerebral judges into pennant-waving schoolboys; that caused them to lose their judicial bearings, to twist precedents, and to jeopardize the dignity of the federal courts; and that made it nearly impossible for any litigant to defeat the baseball establishment. This case was about more than Federal Baseball and Toolson or Justice Holmes and stare decisis; it was about the grip of the national pastime on the minds of the men in black robes. This was what Flood was up against as his lawsuit made its way to the Supreme Court.” Snyder 2006, at 223. To use Barry Bonds as another example, several legal issues have arisen: (1) whether his career home run total should be recognized as MLB's all-time record in light of allegations he used and lied about banned performance-enhancing substances, (2) ownership of the baseball Bonds hit that broke Hank Aaron's career home run record, and (3) the application of federal constitutional law to governmental seizure of confidential electronic records evidencing his positive test for banned performance-enhancing substances. See generally Fainaru-Wada and Williams 2006.
- 9.
International Convention Against Doping in Sport, U.N. Educ., Scientific & Cultural Org. (UNESCO) (Oct. 19, 2005), http://unesdoc.unesco.org/images/0014/001425/142594m.pdf#page=2 [hereinafter International Convention].
- 10.
Australia and the United States of America ratified the Convention on January 17, 2006, and August 25, 2008, respectively. See List of State Parties, UNESCO, http://portal.unesco.org/la/convention.asp?KO = 31037&language=E (last visited Nov. 6, 2010).
- 11.
International Convention, supra note 9, arts. 1, 5. However, under the laws of both Australia and the United States, the Convention is not “self-executing” in the sense of automatically becoming enforceable domestic law. As a general proposition, federal domestic legislation is required. See generally Medellin v. Texas, 552 U.S. 491 (2008); Richardson v Forestry Comm'n (1988) 164 CLR 261 (Austl.). Following ratification and in order to comply with the Convention, Australia replaced its antidoping legislation with the Australian Sports Anti-Doping Authority Act 2006 (Cth). Rather than compelling domestic sports leagues and governing bodies to comply with the WADA Code, the Australian government's policy has been to (successfully) exert pressure by means of adverse publicity and threatened withdrawal of financial support. Thus far, the United States Congress has not enacted enabling legislation. Even if it were to do so, the flexible terms of article 5 of the Convention would not require Congress to compel U.S. professional sports leagues and governing bodies to comply with the WADA Code.
- 12.
The modern Olympic Movement consists of those “organisations, athletes and other persons who agree to be guided by the principles of the Olympic Charter.” The Organisation, Olympic Movement, http://www.olympic.org/en/content/The-IOC/The-IOC-Institution1/?Tab=1 (last visited Nov. 6, 2010). There are numerous organizations and persons that are part of the Olympic Movement, including the IOC, International Sports Federations (IFs) (the international governing bodies for each Olympic sport), National Olympic Committees (NOCs), National Governing Bodies (NGBs) for each Olympic sport, the World Anti-Doping Agency, the Court of Arbitration for Sport, and the Olympic Museum, as well as millions of individual athletes, judges, and coaches.
- 13.
See Voet 2002. On July 8, 1998, Voet was stopped by customs officials on the Franco-Belgian border. He was the soigneur (trainer) for the Festina cycling team competing in the Tour de France. A search of his car produced various sophisticated performance-enhancing drugs and doping equipment. Voet was arrested, briefly imprisoned, and eventually convicted of various offenses against French law relating to supplying and inciting the use of drugs. Along with other team management and support staff, he received a suspended jail sentence and was fined.
- 14.
There are 193 national governments that are signatories to the Declaration. List of Signatories, World Anti-Doping Agency, http://www.wada-ama.org/en/World-Anti-Doping-Program/Governments/Copenhagen-Declaration-on-Anti-Doping-in-Sport/List-of-signatories/ (last visited Nov. 6, 2010).
- 15.
For the current edition of the WADA Code (effective Jan. 1, 2009), see World Anti-Doping Code, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/WADA_Anti-Doping_CODE_2009_EN.pdf (last visited Nov. 6, 2010) [hereinafter WADA Code].
- 16.
For a brief account from an insider, see Pound 2006.
- 17.
- 18.
- 19.
Dirix and Sturbois 1999, at 14. It should be noted that while the IOC had power to act in respect of the Olympic Games, it could not make rules of direct application in relation to the activities of other bodies. Also, chemical testing was not introduced for around another thirty years.
- 20.
- 21.
The death of a cyclist at the Rome Olympic Games was allegedly the result of the use of amphetamines. Dirix and Sturbois 1999, at 13. However, this cause of death has been vigorously contested. Møller 2005. Shortly afterwards in 1961, the IOC established a Medical Commission, and at the 1964 Olympic Games in Tokyo, attempts were made to test cyclists for doping, but this led to a boycott. The death of the British cyclist Tommy Smith in 1967 prompted the reconstitution of the Medical Commission into its modern-day form. Dirix and Sturbois 1999, at 13–14.
- 22.
This was conducted by way of analysis of a sample of an athlete's urine and this remains the principal method today.
- 23.
See, e.g., Verroken and Mottram 1996.
- 24.
Prohibitions were extended to include methods of doping such as “blood doping” and attempts to foil reliable testing ranging from refusing to provide urine samples for testing to the substitution of “clean” urine.
- 25.
- 26.
Out-of-competition testing was introduced as a response initially to anabolic steroids, which could deliver lasting performance-enhancing effects but be cleared from an athlete's body well before competition day. Verroken and Mottram 1996, at 238.
- 27.
- 28.
See generally Dubin 1990.
- 29.
See, e.g., The Parliament of the Commonwealth of Austl. 1989; The Parliament of the Commonwealth of Austl. 1990.
- 30.
For example, Portugal: Anti-Doping Regulation, Decreto-Lei No. 374/79, de 8 de Setembro de 1979, Diário de República de 8.9.1979 (Port.); France: Loi 89-432 du 28 juin 1989 relative à la prévention et à la répression de l'usage des produits dopants à l'occasion des compétitions et manifestations sportives [Law 89-432 of June 28, 1989 for the prevention and punishment of the use of doping agents at sporting competitions and events], Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 1, 1989, p. 8146.
- 31.
Among the first, if not the first, was the Australian Sports Drug Agency established by the Australian Sports Drug Agency Act 1990 (Cth).
- 32.
See, e.g., Council of Europe, Anti-Doping Convention, opened for signature Nov. 16, 1989, C.E.T.S. No. 135 (entered into force Mar. 1, 1990).
- 33.
See, for example, International Anti-Doping Arrangement 1997 (IADA), which was a multilateral agreement between Australia, Canada, Denmark, Finland, the Netherlands, New Zealand, Norway, South Africa, Sweden, and the United Kingdom. The member countries in IADA worked to establish international standards of antidoping practice. About IADA, IADA, http://www.iada.rf.se/t2aspx?p=105084 (last visited Nov. 12, 2010).
- 34.
The astonishingly evil practices of the former German Democratic Republic (East Germany) in regard to doping its athletes in the pursuit of political agendas was coming to light. Ungerleider 2001; Franke and Berendonk 1997. It was feared that this practice had spread to female Chinese swimmers in particular, but whether doping in Chinese sport was state sponsored has been hotly debated. For commentary on doping and doping scandals in China, see Jinxia 2003; Galluzzi 2000; and Kidd et al. 2001. USA Track & Field (USATF) received strong international criticism for not reporting alleged breaches of doping rules to the governing international federation. “[A]t least thirteen [elite] athletes” who were ultimately “cleared” were involved. See, e.g., Pound 2006, at 96. The USATF cited due process and privacy reasons for refusing to make disclosures unless and until guilt was found. However, critics accused the USATF of favoring its own athletes because by adopting a “secretive” approach it circumvented the international rules, which provided for immediate interim suspension pending the outcome of disciplinary proceedings. Ultimately, the USATF was cleared of any wrongdoing by the CAS, which concluded that the USATF had not acted contrary to the rules of the governing international federation. Arbitration CAS 2002/O/401, Int'l Ass'n of Athletics Fed'ns v. USA Track & Field, award of Jan. 10, 2003, in Digest of CAS Awards III 2001−2003, at 37 (Matthieu Reeb ed., 2004); see also Tygart 2003.
- 35.
See, e.g., Tarasti 2000.
- 36.
See, e.g., Edwards v. British Athletic Fed'n, [1997] Eur. L.R. 721 (Ch.) (Eng.) (holding that a four-year ban for a first offense was reasonable and proportional by English High Court); Johnson v. Athletics Can. (1998) 114 O.A.C. 388 (Ont. C.A.) (holding that a life ban for a second offense was not an unreasonable restraint on trade by the Ontario Court of Appeal); Krabbe v Int'l Amateur Athletic Fed'n, Landgericht München I [LGM] [Munich Region Court] May 17, 1995, 4 Zeitschrift für Sport und Recht [SpuRt] 161, 166, 1995 (Ger.) decision of the Munich Region Court of 17 Mar. 1995, SpuRt 161, 166 (1995) (establishing that a two-year suspension is the maximum permissible in Germany under fundamental rights and democratic principles). Affirmed by decision of the Munich Region Court of Appeal. Oberlandesgericht München [OLG M] [Munich Region Court of Appeal] Mar. 28, 1996, Zeitschrift für Sport und Recht [SpuRt] 133, 138, 1996 (Ger.) (holding that a three-year ban was excessive and disproportionate for a first doping offense). See generally Kaufmann-Kohler et al. 2003.
- 37.
Rule 44 of the Olympic Charter stipulates that the “World Anti-Doping Code is mandatory for the whole Olympic Movement,” and Rule 26 stipulates that recognition of an IF by the IOC is dependent upon the IF adopting and implementing the WADA Code. Olympic Charter, rules 26, 44 (amended Feb. 11, 2010), http://www.olympic.org/Documents/olympic_charter_en.pdf (last visited Nov. 8, 2010).
- 38.
Mitten et al. 2009, at 278–80.
- 39.
Thus far, U.S. professional sports leagues such as the National Football League, National Basketball Association, National Hockey League, and Major League Baseball (whose respective drug testing programs are collectively bargained because their players have unionized) and the National Collegiate Athletic Association (which has unilaterally promulgated a separate drug testing policy for its more than 400,000 student-athletes) are notable exceptions.
- 40.
WADA Code, supra note 15, arts. 1–4.
- 41.
Id. arts. 5–6.
- 42.
Id. arts. 7–8.
- 43.
Id. arts. 9–12.
- 44.
Id. art. 13.
- 45.
Id. arts. 20–22.
- 46.
Id. arts. 18–19.
- 47.
2010 Prohibited List, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-Prohibited-list/WADA_Prohibited_List_2010_EN.pdf (last visited Nov. 6, 2010).
- 48.
International Standard for Testing 2009, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-Testing/WADA_Int.Standard_Testing_2009_EN.pdf (last visited Nov. 6, 2010).
- 49.
International Standard for Laboratories 2009, World Anti-Doping Agency (2008), http;//www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-Laboratories/WADA_Int.tandard_Laboratories_2009_EN.pdf (last visited Nov. 6, 2010).
- 50.
International Standard for Therapeutic Use Exemptions 2010, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-TUE/WADA_ISTUE_2010_EN.pdf (last visited Nov. 6, 2010).
- 51.
International Standard for the Protection of Privacy and Personal Information 2009, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-PPPI/WADA_IS_PPPI_2009_EN.pdf (last visited Nov. 6, 2010).
- 52.
See infra notes 98–101 and accompanying text.
- 53.
See supra notes 32–33 and accompanying text.
- 54.
See, for example, China's 2004 antidoping regulations enacted pursuant to Anti-Doping Regulations, China Anti-Doping Agency, http://www.chinada.cn/en/contents/64/2046.html (last visited Nov. 12, 2010). See also Dubin 1990.
- 55.
Some national antidoping agencies such as Drug Free Sport New Zealand, http://www.drugfreesport.org.nz (last visited Nov. 6, 2010), and the South African Inst. for Drug-Free Sport, http://www.drugfreesport.org.za (last visited Nov. 12, 2010) are public entities established by legislation (respectively the Sports Anti-Doping Act, 2006 (N.Z.) and South African Institute for Drug-Free Sport Act 14 of 1997). However, not all national antidoping agencies are state bodies; notable examples of private nonprofit bodies are the Canadian Centre for Ethics in Sport, http://www.cces.ca (last visited Nov. 12, 2010) and the United States Anti-Doping Agency, http://www.usada.org (last visited Nov. 12, 2010), although each is officially recognized by their respective governments as the national antidoping agency.
- 56.
Houlihan 1999, at 174.
- 57.
WADA Code, supra note 15, art. 13.
- 58.
See infra notes 160–167 and accompanying text.
- 59.
The tightly knit pyramid structure of the Olympic Movement, combined with its authority to exclude particular sports from the Olympic Games, have given the IOC the necessary leverage to exert considerable pressure on international sports governing bodies to adopt the WADA Code. In addition, the IOC is able to condition a country's hosting of the Olympic Games on its government's adoption, compliance, and enforcement of the WADA Code.
- 60.
See generally Mitten et al. 2009, at 278–80.
- 61.
Reynolds v. Int'l Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir. 1994).
- 62.
In addition, it is questionable whether national courts have the requisite expertise to resolve international sports disputes. Judge Richard Posner, a prominent federal appellate court judge, has observed: “[T]here can be few less suitable bodies than the federal courts for determining the eligibility, or the procedures for determining the eligibility, of athletes to participate in the Olympic Games.” Michels v. U.S. Olympic Comm., 741 F.2d 155, 159 (7th Cir. 1984) (Posner, J., concurring).
- 63.
Distinctive U.S. features: separate regulatory authority based on level of competition; “amateur” intercollegiate and interscholastic competition; closed professional leagues; no national sports ministry or direct federal government regulation; Olympic sports privately funded rather than state-sponsored training schools that financially support athletes. European features: central government funding, regulation, and encouragement of sports participation; club sport model rather than tie to educational institutions; open leagues and promotion and relegation; hierarchical vertical pyramid. See generally Nafziger 2009. Australian features: influenced by large geographic size and a smaller market with widely separated population centers; until relatively recently, entire semi-professional leagues located in each major center; national professional leagues now established; closed professional leagues; private ownership of professional teams either nonexistent or new; club sports model rather than university-based sports; strong government sports development policy; many professional leagues include a New Zealand based team. See Stewart et al. 2004.
- 64.
See generally Mitten 2009.
- 65.
- 66.
The CAS is recognized under the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations. Blackshaw 2006, at 4 (“CAS rulings are legally effective and can be enforced internationally.”).
- 67.
Reeb 2006, at 31, 32.
- 68.
Code of Sports-Related Arbitration, Court of Arbitration for Sport, http://www.tas-cas.org/d2wfiles/document/3923/5048/0/Code%202010%20(en).pdf (last visited Nov. 6, 2010) [hereinafter Arbitration Code].
- 69.
ICAS currently has two U.S. members, Michael B. Lenard and Judge Juan R. Torruella, and one Australian member, John D. Coates, who is the ICAS Vice-President.
- 70.
Arbitration Code, supra note 68, §20.
- 71.
These include the FIFA World Cup, Commonwealth Games, and Union of European Football Associations (UEFA) European Football Championships.
- 72.
Arbitration Code, supra note 68, §16.
- 73.
Id. §14.
- 74.
Id. §14, r. 29.
- 75.
List of CAS Arbitrators Per Nationality, Court of Arbitration for Sport, http://www.tas-cas.org/d2wfiles/document/452/5048/0/Liste%20nationalit%C21e%2009.pdf (last visited Nov. 10, 2010).
- 76.
Arbitration Code, supra note 68, r. 28.
- 77.
See Kaufmann-Kohler 1999, 336, 348 (noting that the objective of choosing Lausanne as the seat of CAS arbitrations is to provide the advantage of a “uniform procedural regime”).
- 78.
The Swiss Federal Code on Private International Law, reprinted in Court of Arbitration for Sport, Code of Sports-Related Arbitration and Mediation Rules app. 3, at 162 (2004) [hereinafter PIL], requires an arbitration tribunal to resolve a dispute pursuant to the rules of law chosen by the parties, or absent any choice, according to the law with the closest connection to the dispute. Article 187. The choice of law rules in the CAS Code are consistent with the Swiss PIL. See infra notes 128–130 and accompanying text.
- 79.
Arbitration CAS 2004/A/628, Int'l Ass'n of Athletics Fed'n (IAAF) v. USA Track & Field, award of June 28, 2004, §19.
- 80.
- 81.
Arbitration CAS 2004/A/628, Int'l Ass'n of Athletics Fed'n (IAFF) v. USA Track & Field (USATF), award of June 28, 2004, §19. See also Arbitration CAS 2008/A/1545, Anderson et al. v. Int'l Olympic Comm. (IOC), award of July 16, 2010, §118 (“[A]lthough a CAS panel in principle might end up deciding differently from a previous panel, it must accord to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.”).
- 82.
Arbitration Code, supra note 68, r. 59. See infra notes 127–133 and accompany-ing text for a discussion of the nature and scope of the SFT's judicial review of CAS awards.
- 83.
A. and B. v Int'l Olympic Comm. (IOC) and Int'l Ski Fed'n (FIS) (Lazutina), 4P.267-270/2002 (1st Civ. Ct., May 27, 2003) (translation), in Digest of CAS Awards III 2001–2003, at 674 (Matthieu Reeb ed., 1998); G. v Fédération Equestre Internationale, (1st Civ. Ct., Mar. 15, 1993) (translation), in Digest of CAS Awards 1986–1998 561 (Matthieu Reeb ed., 1998). Notwithstanding the SFT's ruling, some commentators question whether the CAS is sufficiently independent from the IOC and some members of the Olympic Movement. See, e.g., Rigozzi 2005; Pinna 2005, 13–14; Straubel 2005, 1231–32.
- 84.
See The International Judiciary in Context, Project on Int'l Courts and Tribunals, http://www.pict-pcti.org/publications/synoptic_chart/synop_c4.pdf (last visited Nov. 6, 2010) (listing several permanent arbitral tribunals).
- 85.
Yi 2006, at 290; see also Bingham 2004, 245 (observing that the CAS “has earned a reputation for independence and fairness, although it, too, is a mandatory arbitration program” and “is viewed as establishing a consistent body of arbitral authority, a kind of lex sportiva, because of its combination of expertise and trans-parency”).
- 86.
Yi 2006, at 291.
- 87.
Id.
- 88.
See infra notes 135–136 and accompanying text.
- 89.
“[The] globalization of law creates a multitude of decentred law-making processes in various sectors of civil society, independently of nation-states … They claim worldwide validity independently of the law of nation-states and in relative distance to the rules of international public law. They have come into existence not by formal acts of nation-states but by strange paradoxical acts of self-validation.” Teubner 1997, at xiii.
- 90.
Arbitration CAS 98/200, AEK Athens v. Union of European Football Ass'n (UEFA), award of Aug. 20, 1999, §156: “Sports law has developed and consolidated along the years, particularly through the arbitral 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 within their own statutes and regulations or within any applicable national law, provided that they do not conflict with any national ‘public policy’ (‘ordre public’) provision applicable to a given case.”
- 91.
See, e.g., Caplan and Stringham 2008, 528 (asserting that “[p]ublic courts should, as a matter of policy, respect contracts that specify final and binding arbitration,” but failing to cite the CAS and its arbitration awards as an example, which would have strengthened their argument).
- 92.
Recently, the CAS Secretary General began posting the full text of current CAS awards on the CAS Web site and is developing a searchable archive of past awards. Pursuant to an agreement with the United States Olympic Committee (USOC), the National Sports Law Institute (NSLI) of Marquette University Law School is developing an electronic summary and index of issues resolved by CAS awards that will be posted on both the USOC and NSLI Web sites.
- 93.
See, e.g., Erbsen 2006, at 452 (finding a “strong textualist theme in CAS [doping] opinions”).
- 94.
In X. (Cañas) v ATP Tour, 4P.172/2006 (2007) (Switz.), ATF 133 III 235, translated in 1 Swiss Int'l Arb. L. Rep. 65, 84–85, the SFT recently observed:
“Sports competition is characterized by a highly hierarchical structure, as much on the international as on the national level. Vertically integrated, the relationships between athletes and organisations in charge of the various sports disciplines are distinct from the horizontal relationship represented by a contractual relationship between two parties … This structural difference between the two types of relationships is not without influence on the volitional process driving the formation of every agreement … [E]xperience has shown that, by and large, athletes will often not have the bargaining power required and would therefore have to submit to the federation's requirements, whether they like it or not. Accordingly, any athlete wishing to participate in organised competition under the control of a sports federation whose rules provide for recourse to arbitration will not have any choice but to accept the arbitral clause, in particular by subscribing to the articles of the sports federation in question in which the arbitration clause was inserted …”
It ruled that mandatory arbitration provisions are enforceable because the CAS provides a swift, independent, and impartial means of resolving international sports disputes by a specialized tribunal. However, as a “counterbalance,” an athlete must have a right to have an adverse CAS award judicially reviewed by the SFT to remedy “breaches of fundamental principles and essential procedural guarantees that which may be committed by the arbitrators called upon to decide in his case.” Id. at 86.
- 95.
A CAS panel will not rewrite an international sports governing body's rules or second-guess its decisions or policies. Arbitration CAS 2006/A/1165, Ohuruogu v. U.K. Athletics Ltd., award of Apr. 3, 2007, at 11–12. On the other hand, one CAS panel has recognized the need for “general principles of law” to govern international sports federations in addition to their own rules or applicable national law. For example, procedural fairness should be required, and “arbitrary or unreasonable rules and measures” should be prohibited. Arbitration CAS 98/200, AEK Athens v. Union of European Football Ass'n (UEFA), award of Aug. 20, 1999, para. 156.
- 96.
One scholar has suggested:
“Consideration should also be given to an organizational structure whereby CAS can address the development of law in arbitral sporting decisions. CAS decision [sic] are increasingly cited by parties and arbitral panels as authority for rules upon which to decide cases, yet the persuasive effect of these citations to arbitral cases is unclear. For CAS to be a true ‘Supreme Court for Sport,’ it should institute a formal appellate body akin to a U.S. Supreme Court with discretionary review, to rule on conflicting interpretations of lex sportiva rendered by CAS panels.” Weston 2009, 128.
- 97.
For example, considering that Olympic sports organizations currently provide substantial funding for the CAS and appoint sixty percent of the members of the ICAS, which has the exclusive authority to appoint CAS arbitrators (many of whom have ties to Olympic sports governing bodies), is it appropriate to have a closed list of CAS arbitrators? In addition, scholarly analysis of the current CAS arbitrator conflict of interest rules and SFT rulings regarding the grounds for challenging a CAS arbitrator's independence is needed.
- 98.
Some other examples are cited in Mestre 2009, 16–18.
- 99.
See generally Mitten 1997.
- 100.
Almost twenty years ago, Professor James Nafziger, a leading international law and international sports law scholar, observed:
“The much-neglected field of international sports law is changing significantly … The evolving legal framework has important implications for participants and spectators in both sports and the international legal process. Among students and practitioners of international law, the role of nongovernmental sports organizations in gaining governmental and intergovernmental support, in shaping a still immature body of law, in acquiring a measure of legal personality, and in responding to new issues is of general professional interest. Athletic competition is a fundamental human activity whose history has been replete with international problems. Understanding the peculiar blending of governmental, intergovernmental and nongovernmental authority over political and other consequences of sports activity is therefore significant.” Nafziger 1992, 489 (footnote omitted); see also Nafziger 1996, 149 (“Normative trends thus confirm a growing commitment of national legal systems to the special processes of international sports law. The [CAS], in particular, is assuming a central position for avoiding, managing and resolving international disputes. What remains is for the legal profession throughout the world to take international sports law seriously.”).
- 101.
Jansen and Michaels 2008, 527.
- 102.
Wendehorst 2008, 593–95.
- 103.
Basedow 2008, 709–11.
- 104.
Legal pluralism is based on “the premise that people belong to (or feel affiliated with) multiple groups and understand themselves to be bound by the norms of these multiple groups.” Berman 2007, 1169. “[M]any community affiliations … may at various times exert tremendous power over our actions even though they are not part of an ‘official’ state-based system.” Id. at 1170. Thus, “situations [arise] in which two or more state and non-state normative systems occupy the same social field and must negotiate the resulting hybrid legal space.” Id. Conflicts arising out of overlapping legal rules created by Olympic and international sports private agreements and national laws must be resolved either by “reimposing the primacy of territorially-based (and often nation-state-based) authority or by seeking universal harmonization.” Id. at 1162.
- 105.
The tide, however, is changing. In his concluding remarks during the 60th Congress of the International Association of Legal Science, which was hosted by the Istanbul University Law Faculty Centre for Comparative Law, in Istanbul, Turkey, on May 13–14, 2010, Mauro Bussani, Professor of Comparative Law at the University of Trieste, Italy, observed that comparative sports law is a “very attractive scientific discipline.” He stated:
“[C]onceiving sports law just as a legal specialization, in which national and international legal doctrines are subject to special deviations, exceptions, exclusions, would be inconsistent with reality. As my learned colleagues showed us during these two days, sports law can indeed be viewed as a legal system in itself.…As any legal system, sports law has its own institutions, procedures, and rules. As most legal systems, it is made up of different layers, which present themselves as stratified one upon the other. Some of these layers are regionally fragmented, while others have been internationally harmonized by homogenous practices. Legal solutions often circulate from one region to the other ones, and frequently this circulation gives rise to legal transplants and legal borrowing.” Mauro Bussani, Professor of Comparative Law at the University of Trieste, Italy, Remarks at 60th Congress of the Int’l Ass’n of Legal Science (May 13–14, 2010) (transcript on file with authors).
- 106.
Barnard v Australian Soccer Fed'n (1988) 81 ALR 51.
- 107.
- 108.
Eastham v. Newcastle United Football Club Ltd., [1964] Ch. 413 at 438 (Eng.).
- 109.
The ECJ considered it unnecessary to adjudicate plaintiff's claim that the rules contravened articles 85 and 86 (now articles 101 and 102) relating to freedom of economic competition.
- 110.
Morris et al. 1996, at 902.
- 111.
Courts in other countries had long recognized the contrariness of such transfer systems to laws protecting freedom of economic competition and employment. See, e.g., Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976); Buckley v Tutty (1971) 125 CLR 353 (Austl.); Blackler v N.Z. Rugby Football League, Inc. [1968] NZLR 547. In Europe, serious doubt existed as well. See, e.g., Eastham v. Newcastle United Football Club Ltd., [1964] Ch. 413 (Eng.); Janssen Van Raay, Report of the Committee on Legal Affairs and Citizens' Rights on the Freedom of Movement of Professional Footballers in the Community (European Parliament, Session Documents Series A, Mar. 1, 1989).
- 112.
Bosman demonstrates that court rulings which apply national laws to international sports rules and agreements can prove to be problematic because they do not accommodate the special circumstances and needs of international sports. FIFA responded to the ruling by amending its transfer regulations, which caused some Belgian trade unions to file a complaint with the European Commission alleging contravention of competition law (articles 85 and 86 of the EC Treaty—now articles 101 and 102 of the EU Treaty). Following protracted negotiation and political lobbying, during which FIFA and UEFA were able to convince the Commission of the special economics and social status of soccer, an agreement was reached on new Regulations for the Status and Transfer of Players to apply worldwide. See Dabscheck 2004, 69. The development of the new rules was strongly influenced by European perspectives and it is an issue worthy of scholarly investigation as to whether the socioeconomic and legal perspectives of Asia and the Americas have been sufficiently considered in adopting these worldwide rules.
- 113.
Martin v. Int'l Olympic Comm., 740 F.2d 670 (9th Cir. 1984). American courts also have rejected state discrimination law claims by foreign athletes seeking to march in opening ceremonies in Olympic Games held in the United States under flags of countries not recognized by the IOC. See Ren-Guey v. Lake Placid 1980 Olympic Games, Inc., 424 N.Y.S.2d 535 (N.Y. App. Div. 1980), aff'd, 429 N.Y.S.2d 473 (1980); Spindulys v. L.A. Olympic Org. Comm., 220 Cal. Rptr. 565 (Cal. Ct. App. 1985).
- 114.
Martin, 740 F.2d at 673.
- 115.
Id. at 677. The dissenting judge argued:
“The IOC made concessions to the widespread popularity of women’s track and field by adding two distance races this year. The IOC refused, however, to grant women athletes equal status by including all events in which women compete internationally. In so doing, the IOC postpones indefinitely the equality of athletic opportunity that it could easily achieve this year in Los Angeles. When the Olympics move to other countries, some without America’s commitment to human rights, the opportunity to tip the scales of justice in favor of equality may slip away. Meanwhile, the Olympic flame—which should be a symbol of harmony, equality, and justice—will burn less brightly over the Los Angeles Olympic Games.” Id. at 684 (Pregerson, J., dissenting).
- 116.
Sagen v. Vancouver Org. Comm. for the 2010 Olympic & Paralympic Winter Games (2009), 98 B.C.L.R. 4th 141 (Can. B.C.). On December 22, 2009, the Supreme Court of Canada refused appellants' leave to appeal. Sagen v. Vancouver Org. Comm. for the 2010 Olympic & Paralympic Winter Games, 2009 CarswellBC 3468 (Can. S.C.C.) (WL).
- 117.
Sagen (2009), 98 B.C.L.R. 4th para. 21.
- 118.
Id. para. 9.
- 119.
Id. para. 56.
- 120.
See also U.S. Olympic Comm. (USOC) v. Intelicense Corp., 737 F.2d 263, 268 (2d Cir.), cert. denied, 469 U.S. 982 (1984) (stating that the Amateur Sports Act, a federal statute, “cannot be overborne by the terms” of IOC Charter, which “is not a treaty ratified in accordance with constitutional requirements”).
- 121.
This is a current high-profile controversy, of particular interest to scholars studying the application of national and transnational civil liberties and personal privacy laws in an era of increasing globalization, which provides an illustrative example of the ongoing dispute concerning the primacy of national laws versus the need for uniform international sports rules and agreements. In Part 2.1, we observed that the international antidoping regime has several features invasive of athletes' privacy interests. On January 1, 2009, WADA adopted a “whereabouts rule” requiring all elite athletes to provide three months' advance notice of their location one hour each day, seven days a week, from 6a.m.–11p.m., so they can be tested out-of-competition by WADA without any warning. European Union Sports Commissioner Jan Figel has demanded that WADA revise this rule to comply with European privacy laws because “WADA rules do not supersede [the] laws of countries.” Casert 2009. In response, WADA president John Fahey claimed that doing so “could potentially undermine the fight against doping in sport.” Id. In January 2010, a Spanish court rejected a Spanish professional cyclist's claim that the Union Cycliste Internationale (UCI) (the IF for cycling)'s whereabouts rule, which was based on WADA's rule, breached his individual rights guaranteed by the Spanish Constitution. See Press Release, Union Cycliste Internationale 2010.
- 122.
Arbitration Rules for the Olympic Games, Court of Arbitration for Sport, art. 17, http://www.tas-cas.org/adhoc-rules (follow “Arbitration Rules for the Olympic Games” hyperlink) (last visited Sept. 11, 2010).
- 123.
Arbitration Code, supra note 68, r. 58.
- 124.
On the other hand, CAS arbitrators have expressed a willingness to rely on (or to at least survey) national laws when developing a rule of law to govern a dispute that cannot be resolved solely by applying a sports governing body's internal rules. See, e.g., Arbitration CAS 2004/A/704, Yang Tae Young v. Int'l Gymnastics Fed'n, award of Oct. 21, 2004 (considering the extent to which courts have been willing to judicially review and interfere with a referee's application of the rules of the game or field of play decision).
- 125.
See, e.g., Arbitration CAS 2007/A/1312, Adams v. CCES, award of May 16, 2008 (finding no violation of Ontario Human Rights Code); Arbitration CAS 2006/A/1149 and 2007/A/1211, World Anti-Doping Agency (WADA) Federación Mexican de Fútbol (FMF) and Alvarez, award of May 16, 2007 at para. 35 (rejecting athlete's claimed violation of Mexican law); Arbitration CAS 2006/A/1102, Eder v. Ski Austria, award of Nov. 13, 2006 (refusing to use Austrian law to invalidate challenged World Anti-Doping Code rules or their application to Austrian athlete by Austrian national governing body); Arbitration CAS 2005/A/951, Cañas v. ATP Tour, award of May 23, 2007 (finding no violation of Delaware, U.S. antitrust, or European Union law).
- 126.
Arbitration CAS 2006/A/1110, PAOK FC v. UEFS, award of Aug. 25, 2006 (rejecting Greek football club's request to apply Greek law to club licensing dispute with UEFA).
- 127.
See PIL, supra note 78.
- 128.
In X. (Cañas) v. ATP Tour, 4P.172/2006 (2007) (Switz.), ATF 133 III 235, translated in 1 Swiss Int'l Arb. L. Rep. 65, the SFT vacated and remanded a CAS award because it violated an athlete's right to a fair hearing by not providing reasons for rejecting arguments that his doping sanction violated Delaware, U.S., and European Union laws. The SFT ruled that CAS arbitrators must discuss all of the parties' arguments in their legal analysis of the relevant issues in dispute, including claims that applicable national or transnational laws have been violated. The panel must explain “if only briefly” their reasons “so that the petitioner could be satisfied upon a perusal of the award that the arbitrators had considered all of his arguments which had objective relevance, even if it was to dismiss them ultimately.” Id. at 98.
- 129.
See PIL, supra note 78, art. 190. See generally Rigozzi 2009.
- 130.
Rigozzi 2009, at 134–41.
- 131.
N., J., Y., W. v. Fédération Internationale de Natation (FINA), 5P.83/1999 (2d Civil Court, Mar. 31, 1999) at 779.
- 132.
Id.
- 133.
G. v Fédération Equestre Internationale, (1st Civ. Ct., Mar. 15, 1993) (translation) in Digest of CAS Awards 1986–1998, at 561, 574 (Matthieu Reeb ed., 1998).
- 134.
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517 [hereinafter New York Convention]; Ravjani 2009, 251 (“CAS has had success in having its judgments that arise from contractual disputes enforced, while [International Court of Justice] judgments arising out of treaties often have trouble being enforced.”).
- 135.
New York Convention, supra note 135, art. V(2)(b).
- 136.
Slaney v. Int'l Amateur Athletic Fed'n (IAAF), 244 F.3d 580 (7th Cir.), cert. denied, 534 U.S. 828 (2001); Gatlin v. U.S. Anti-Doping Agency, Inc., No. 3:08-cv-241/LAC/EMT, 2008 WL 2567657 (N.D. Fla. June 24, 2008). These cases are consistent with nonsports cases rejecting claims that a foreign arbitral award should not be enforced because it violates public policy. Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1445 (11th Cir. 1998) (finding no “violation of public policy of the sort required to sustain a defense under … Convention”); Parsons & Whittemore Overseas Co. v. Societe Generale de L'Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) (“Convention's public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum state's most basic notions of morality and justice.”). But see Dynamo v. Ovechkin, 412 F. Supp. 2d 24 (D.D.C. 2006) (refusing to enforce Russian arbitration award finding that Alexander Ovechkin is contractually obligated to play for Moscow Dynamo during the 2005–06 hockey season and banning him from playing for any other club because Dynamo did not prove Ovechkin agreed in writing to arbitrate the parties' dispute).
- 137.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Nations Treaty Collection (Sept. 9, 2010), http://treaties.un.org/pages/participationstatus.aspx (follow “Chapter XXII” hyperlink; follow “1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards” hyperlink) (listing countries ratifying the Convention).
- 138.
The CAS does provide two important procedural rights to athletes, namely the right to be heard before an independent and impartial panel of arbitrators, and de novo review of international sports governing body decisions, which is not constrained by national laws that would preclude a domestic court from providing the same scope of judicial review. See, e.g., Arbitration CAS 2008/A/11574, D'Arcy v. Australian Olympic Comm., award of July 7, 2008.
- 139.
Gatlin, 2008 WL 2567657.
- 140.
Id. However, U.S. domestic sports law generally does not provide athletes with greater legal rights than the developing body of lex sportiva. Strict liability for Olympic sports doping violations is permissible. See, e.g., Walton-Floyd v. U.S. Olympic Comm., 965 S.W.2d 35 (Tex. App. 1998). Monolithic private sports governing bodies may establish “take it or leave it” terms applicable to their members and athletes as a condition of eligibility to participate in competitive sports. Nat'l Collegiate Athletic Ass'n v. Tarkanian, 939 P.2d 1049 (Nev.), cert. denied, 522 U.S. 1028 (1997). U.S. courts refuse to allow state law to directly regulate the internal affairs of national sports governing bodies. See Flood v. Kuhn, 407 U.S. 258 (1972); Nat'l Collegiate Athletic Ass'n v. Miller, 10 F.3d 633 (9th Cir. 1993); Partee v. San Diego Chargers Football Co., 668 P.2d 674 (Cal. 1983). Moreover, the CAS's de novo review of international sports governing body rules and conduct exercised is more exacting than the very deferential arbitrary and capricious standard of review that U.S. courts generally exercise in reviewing domestic sports governing body rules and conduct. See generally Mitten and Davis 2008.
- 141.
Arbitration CAS 2008/A/1461, Gatlin v. USADA, award of June 6, 2008. In rejecting Gatlin's ADA claim, the CAS panel stated:
“The Panel agrees with the IAAF’s argument that there was no discrimination on the basis of a disability in this instance. The Panel is of the view that in order to constitute a violation, Mr. Gatlin must have been prevented from competing by virtue of his disability … The Panel notes from Mr. Gatlin’s own submissions that “[h]is ADD affected his ability to focus in the classroom … While Mr. Gatlin’s disability admittedly put him at a disadvantage in the classroom, it in no way put him at a disadvantage on the track. Indeed, until recently, he was the reigning 100 m Olympic champion.” Id. para. 32.
- 142.
Gatlin, 2008 WL 2567657, at *1.
- 143.
Id.
- 144.
The Gatlin court cited and relied upon Slaney v. Int'l Amateur Athletic Fed'n (IAAF), 244 F.3d 580 (7th Cir.), cert. denied, 534 U.S. 828 (2001), in which the United States Court of Appeals for the Seventh Circuit held that a U.S. athlete's state law claims seeking to relitigate the same doping dispute issues decided by a valid foreign arbitration award are barred by the New York Convention. It concluded, “Our judicial system is not meant to provide a second bite at the apple for those who have sought adjudication of their disputes in other forums and are not content with the resolution they have received.” Id. at 591. See Weston 2009, at 103–04 (“The United States has implicitly assigned the protection of the rights of its [athletes] to a private international tribunal seated in a foreign nation.”).
- 145.
Gatlin, 2008 WL 2567657, at *1–2. In April 2009, Gatlin settled his claims against all defendants (USOC, USA Track and Field, the United States Anti-doping Agency, and the International Association of Athletics Federations) on terms that were not publicly disclosed. Gatlin Settles Suit with USADA, USOC and Others, Universal Sports, Apr. 14, 2009, http://www.universalsports.com/news/article/newsid=284396.html.
- 146.
Carbonneau 2008, 239–41.
- 147.
Mitten 2009, at 64–67.
- 148.
Meca-Medina v. Comm'n of European Cmtys., 2006 E.C.R. I-6991.
- 149.
Arbitration CAS 99/A/234 and 99/A/235, Meca-Medina & Majcen v. Fédération Internationale de Natation Amateur (FINA), award of Feb. 29, 2000, paras. 4.4–.10; see also Arbitration CAS 2005/A/951, Cañas v. ATP Tour, award of May 23, 2007 (concluding that WADA antidoping rules and sanctions do not violate European law); Coccia 2009 (discussing the relationship between CAS proceedings and EU law).
- 150.
Arbitration CAS 2000/A/270, Meca-Medina & Majcen v. Fédération Internationale de Natation (FINA), award of May 23, 2001.
- 151.
Raguz v Sullivan (2000) 50 NSWLR 236 (Austl.); see also Sturzaker and Godhard 2001 (analyzing the Raguz decision).
- 152.
International Arbitration Act 1974 (Cth) (Austl.).
- 153.
Commercial Arbitration Act 1984 (NSW) s 40 (Austl.).
- 154.
International Arbitration Act 1974 (Cth) s 3(1) (Austl.).
- 155.
Raguz v. Sullivan (2000), 50 NSWLR 236, 257 (Austl.).
- 156.
See, e.g., Arbitration CAS 2007/A/1298, Wigan Athletic FC v. Heart of Midlothian, award of Jan. 30, 2008, para. 64 (“[I]t is in the interest of football that solutions to compensation be based on uniform criteria rather than on provisions of national law that may vary considerably from country to country …”).
- 157.
Yi 2006, at 301–02 (“Olympic institutions, as a practical matter, simply cannot defend its myriad of decisions in the courts of every single member nation.”). In 2005, a Swiss court in the canton of Vaud granted a preliminary injunction that suspended a CAS award upholding a two-year disciplinary suspension imposed by the International Cycling Union (UCI) on Danilo Hondo, a German cyclist, for his usage of a banned stimulant. Hondo owned a home in the canton of Vaud, and his lawsuit was based on an obscure Swiss law that permitted a Swiss resident to challenge judicially a Swiss arbitration award (e.g., a CAS award) in the canton in which he resided. He asserted that the UCI's strict liability doping rules, which provided for an automatic two-year suspension for a first offense, violated Swiss law. Yi 2006, at 337–39. The Appeals Chamber of the Court for the Canton of Vaud, as well as the SFT, ultimately upheld the CAS award, which required Hondo to serve a two-year suspension for his doping violation. Decision X [Danilo Hondo] v. AMA et consorts & TAS, 4P.148/2006 of 10 Jan. 2007, ASA Bull. 2007, p. 569 (English translation available at http://translate.google.com/translate?hl=en&sl=fr&tl=en&u=http%3A%C2F%C2F www.polyreg.ch%C2Fd%C2Finformationen%C2FbgeunpubliziertJahr_2006%2FEntscheide_4P_2006%2F4P.148__2006.html). Nevertheless, it is problematic to give a Swiss local court judicial authority to nullify a CAS award affecting Swiss residents based on its application of Swiss law; whereas, non-Swiss residents are required to seek vacation of a CAS award by the SFT on much narrower grounds.
- 158.
See generally Mitten 2009, at 64–67. In his book, How Soccer Explains The World, Franklin Foer hypothesizes that Americans' like or dislike of soccer, Europe's most popular sport, reflects their differing views regarding globalization. Foer 2004. Those who like soccer believe “in the essential tenets of the globalization religion as preached by European politicians, that national governments should defer to institutions like the UN and WTO.” Id. at 245. Those who do not believe “that America's history and singular form of government has given the nation a unique role to play in the world; that the U.S. should be above submitting to international laws and bodies.” Id. Ironically, U.S. courts have taken a global view that facilitates a uniform body of lex sportiva; whereas, the ECJ's Meca-Medina decision threatens its worldwide uniformity and application. Although U.S. courts have recognized and enforced international arbitration awards that conflict with national law (albeit reluctantly), it raises the possibility that, in the future, U.S. judges may apply the New York Convention's “public policy” defense more broadly in an effort to protect U.S. athletes' rights under domestic law if other courts use national or transnational law to engage in de facto review of the merits of a CAS award.
- 159.
A Greek law professor suggests that “public international law could lay down a regulatory framework for international sporting bodies.” Panagiotopoulos 2008, 131. He proposes that the institutional autonomy of international sports federations and consequently the lex sportiva, and the corresponding jurisdictional order, should be placed under international scrutiny as to its legitimacy by what one might call a sports united nations. States must adopt an international sports charter to establish a truly international lex sportiva, a framework supporting the institutional autonomy and operation of international sporting bodies. Id. at 139–40 (footnotes omitted).
- 160.
See generally Allen Guttmann, Sports: The First Five Millennia 1 (2004) (tracing the history and development of sports from preliterate to modern times and observing that “[s]ports are a human universal, appearing in every culture, past and present”).
- 161.
For example, people throughout the United States experienced powerful emotions upon learning that Central Washington University intercollegiate softball players Mallory Holtman and Liz Wallace, in an unprecedented act of sportsmanship, carried Western Oregon player Sara Tucholsky around the bases during a game in which she hit her first home run, but was unable to run the bases after seriously injuring her knee. “It gave gooseflesh to a phys-ed teacher in Pennsylvania, made a market researcher in Texas weak in the knees, put a lump in the throat of a crusty old man in Minnesota. It convinced a cynic in Connecticut that all was not lost.” Lake 2009. In Australia, an act of extraordinary sportsmanship has been immortalized in a large bronze statue in the sports district of Melbourne and named as the nation's finest sporting moment of the twentieth century. In 1956, John Landy, former 1500-meter world record holder and rival of Roger Bannister to be the first man to break the four-minute mark for the mile, was competing in the Australian mile championship in the lead-up to the 1956 Olympic Games in Melbourne. Ron Clarke, who would go on to “hold every world record [for distances] from two miles to twenty kilometres,” fell after clipping the heel of another runner. Landy, who was following, tried to jump clear but with only partial success, and in the process trod on Clarke's arm with his spikes. As other runners passed by, Landy returned down the track to inquire as to Clarke's well-being and apologize. By then Clarke had regained his feet and Landy was satisfied the injury was not serious. Landy returned to the race, chased down the distant field and won! The delay had perhaps cost Landy a world record. Gordon 2004.
- 162.
MacAloon 2002, 183.
- 163.
Abrams 2005, 40 (“Countries cannot be at play with one another and remain vigilant enemies, because at the very least there must be an agreement upon the rules for the sport's encounter. They compete in what may be termed a ‘friendly spirit.”’).
- 164.
As of June 2009, there are 205 National Olympic Committees. National Olympic Committee, Olympic Movement, http://www.olympic.org/en/content/National-Olympic-Committee/ (last visited Nov. 8, 2009), while there are 192 members of the United Nations. Growth in United Nations Membership, 1945-Present, United Nations, http://www.un.org/en/members/growth.shtml (last visited Nov. 8, 2010). Notably, Australian government policy has sought to foster cooperation in sport between Australia and other countries through the provision of resources such as facilities and the contribution of expert personnel. For example, the Australia Africa 2006 Sport Development Programme's Active Community Clubs Initiative is funded by the Australian Agency for International Development − AusAID and is delivered by the Australian Sports Commission (ASC). The ASC is the federal agency that governs sport and sport development in Australia and through its International Relations division aims to assist, create and sustain opportunities for all people in the community to participate in, and benefit from, physical activity offered by multi-sport community-based clubs.
Rand Afrikaans Univ. Dep’t of Sport and Movement Studies, An Impact Study on the Active Community Clubs Initiative, Final Report V (2006), http://www.ausport.gov.au/__data/assets/pdf_file/0019/304912/2006_Impact_Study__Active_Community_Clubs.pdf.
- 165.
Laureus: Sport for Good Foundation, 10 Year History of Laureus, Ten Years of Laureus 2000–2010: How It All Began, Jan. 2010, at 5 (quoting Nelson Mandela award speech at the 2000 Laureus World Sports Awards (May 25, 2000)), http://www.laureus.com/files/Foundation%20Magazine_website.pdf. Danny Jordaan, the chief executive of the organizing committee for the 2010 FIFA World Cup, which was held in South Africa, stated:
“Nelson Mandela struggled for, went to jail for and was released pursuing a vision of a country that would recognize every human being as equal … We want to move to a united future. What you need are projects that bind a nation, that carry a common and shared vision. I think that is what the World Cup will do.” Longman 2009, at SP1 (internal quotation marks omitted). Similarly, former Pope John Paul II said, “Sport is spread in every corner of the world … overcoming diversity of culture and nation.” Rushin 2005 (internal quotation marks omitted). For example, Willye White, an African–American woman who was a member of four U.S. Olympic teams and competed in international track and field competitions in more than 150 countries, said: “Before my first Olympics, I thought the whole world consisted of cross burnings and lynchings … The Olympic movement taught me not to judge a person by the color of their skin but by the contents of their hearts. Athletics was my flight to freedom … my acceptance in the world. I am who I am because of my participation in sports.” Mitchell 2007, at 1 (internal quotation marks omitted).
- 166.
The International Olympic Committee works closely with UNESCO to educate young people about “Olympic values” including the advancement of peaceful relations through sport. See, e.g., 6th World Forum on Sport, Education and Culture, “Educating the Now Generation,” Busan, Korea, Sept. 25–27, 2008 [hereinafter Forum]. On June 16, 2009, President Barack Obama announced the formation of a permanent White House Office of Olympic, Paralympic, and Youth Sport to “promote the values of the Olympic Movement and [to] encourage increased youth participation in athletics.” He stated, “Sports are an important way to instill values, judgment and teamwork in our nation's kids, and this new office reflects our commitment to giving all our children a chance to thrive.” Sweet 2009 (quoting President Barack Obama's Announcement of a New White House Office of Olympic, Paralympic and Youth Sport (June 16, 2009), available at http://www.whitehouse.gov/the_press_office/President-Obama-Announces-New-White-House-Office-of-Olympic-Paralympic-and-Youth-Sport/).
- 167.
For example, developing science and technology creates an external means of enhancing individual athletic performance, which raises not only significant legal and ethical issues regarding sports competition, but also broader issues regarding the use of science to enhance human intellectual, physical, and psychological capabilities for other purposes. See, e.g., Wolbring 2008.
- 168.
Regarding U.S. law, one commentator has observed:
“In federal law, antitrust and labor doctrine have been significantly shaped by cases originating in the sports industries. In addition, constitutional principles involving drug testing and search and seizure have been influenced by sports law cases. On the state level, important tort doctrine has been and will continue to be affected by disputes arising in the context of sports. Undoubtedly, other areas of the law will be similarly influenced by sports litigation.” Lazaroff 2001, at 2–3. For example, several cases involving athletes have played a significant role in developing the scope of state law protection of publicity rights and First Amendment limits thereon. See, e.g., C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2007), cert. denied, 128 S. Ct. 2872 (2008); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003); see also Sharfman 2003, 365–66 (noting adoption and use of baseball final offer salary arbitration system to resolve joint venture valuation disputes).
- 169.
- 170.
Opie and Smith 1992, 313–17.
- 171.
NCAA v. Bd. of Regents, 468 U.S. 85 (1984).
- 172.
Lazaroff 2001, at 7–8, 15.
- 173.
Australian Constitution s51(xx).
- 174.
R v Judges of the Fed. Ct. of Austl.; Ex parte W. Austl. Nat'l Football League, Inc. (1979) 143 CLR 190.
- 175.
Id. at 210–11 (Barwick CJ), 233–37 (Mason J, with whom Jacobs J agreed), 239–40 (Murphy J). Implicit in this reasoning is a judicial conclusion that an organization's simultaneous pursuit of both sporting and business interests is not incompatible—a conclusion that courts may have been reluctant to reach at the height of the ethos of amateurism.
- 176.
See Forum, supra note 167; Sweet 2009.
- 177.
In Australia, it is generally accepted that employers may test employees for their use of illicit drugs such as cocaine, amphetamines, and marijuana, and take preemptive disciplinary action for purposes of workplace safety. Beyond that, the usefulness of testing has been considered as less important than protection of employees' privacy interests. In 2005, that position was significantly affected when the Australian Football League (AFL) with the agreement of the Players' Association introduced testing for illicit drug use at any time of the year outside of competition including the players' private time. Australian Football League Illicit Drugs Policy, (Feb. 2005) (on file with authors). (The WADA Code prohibits illicit drugs but only during competition.) The action of the AFL received widespread attention in the news media and was greeted with approval by political leaders and the public but little scholarly attention from academics working in the fields of labor law and civil liberties. This lack of scholarly (and perhaps critical) evaluation and the willingness of such a high-profile group of employees to accept testing for illicit drugs by their employers during private time have established an arguably unchallenged and powerful precedent for employees in other industries.
- 178.
Halberstam 1994.
- 179.
Id. at 28.
- 180.
Flood v. Kuhn, 407 U.S. 258 (1972). For a detailed account of this litigation and its background, see Snyder 2006. Major League Baseball's common law antitrust exemption was limited by the Curt Flood Act of 1998, which provides MLB players with the same antitrust law remedies as other major league players. 15 U.S.C.A. §26b(c) (2009).
- 181.
Snyder 2006, at 60–62, 115–16. However, some African–American civil rights groups “failed to make the connection between Flood's lawsuit and the freedom struggle.” Id. at 115.
- 182.
In 1995, amendments to the federal Racial Discrimination Act specifically outlawed racial vilification. Racial Discrimination Act 1975 (Cth) s 18c (Austl.).
- 183.
Warren and Tsaousis 1997, 35–37.
- 184.
Id. at 38–42.
- 185.
See generally id.; McNamara 2000.
- 186.
Other possible areas for exploration include: extraterritorial enforcement of player contract rights and remedies, Boston Celtics Ltd. v. Shaw, 908 F.2d 1041 (1st Cir. 1990); internationalization of labor markets, Morrow 2004; and the application of antitrust and competition laws to player restraints, Ross 2004 (noting that despite different national competition laws, a uniform legal standard is developing regarding legality of player restraints); or internal league governance, Arbitration CAS 98/200, AEK Athens v. UEFA, award of Aug. 20, 1999 (applying Swiss and European Union competition law in rejecting a challenge to the UEFA rule prohibiting clubs with common ownership from both participating in the same Pan European championship soccer competition; although U.S. antitrust law “has limited precedential value” because of different structure of U.S. sports leagues, the CAS observes that it is similar to the Swiss and European Union legal standard and the result likely would be the same under U.S. law).
- 187.
For example, some U.S. Supreme Court justices recently have relied upon foreign and international laws to support their interpretations of the U.S. Constitution. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring) (referencing the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women); Lawrence v. Texas, 539 U.S. 558, 573 (2003) (citing European Court of Human Rights opinion finding laws prohibiting homosexual conduct invalid under the European Convention on Human Rights).
- 188.
Arbitration CAS 2008/A/1480, Pistorius v. Int'l Ass'n of Athletic Fed'n, award of May 16, 2008. A CAS panel ruled that Oscar Pistorius, a South African athlete who is a double amputee, was eligible to run in IAAF-sanctioned track events with “Cheetah” model prosthetic legs. An IAAF rule prohibited the use of “any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.” The panel concluded that, because scientific evidence did not prove that Pistorius obtained a metabolic or biomechanical advantage from using the “Cheetah” prosthetic legs, his exclusion would not further the rule's purpose of ensuring fair competition among athletes.
- 189.
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
- 190.
“The term “ambush,” “parasitic” or “piratical” marketing is used to describe a completely legitimate group of methods (if planned and implemented carefully) that a company may use in order to associate itself with major events of public interest, like the Olympic Games.” Avlonitis and Ladias 2005, 380. Ambushers have been very successful in circumventing traditional intellectual property rights conferred by copyright and trademark laws so as to associate their products and services with major sports events at very little cost and in the process deprive official sponsors and suppliers of the full return on their financial support of those events. Because this activity threatens the long-term viability of major events, legislatures have enacted special anti-ambush laws.
- 191.
For example, the IOC maintains an immense marketing program. The two key elements are broadcast and sponsorship revenues, the latter undertaken through the Olympic Partner Programme (TOP). See Olympic Marketing Fact File, Olympic Movement, http://www.olympic.org/Documents/fact_file_2010.pdf (last visited Nov. 6, 2010).
- 192.
See, e.g., NHL v Pepsi-Cola Canada, Ltd. (1992), 92 D.L.R. 4th 349 (Can. B.C. B.C.S.C.).
- 193.
See generally Jacob 2001; Michalos 2006. For a discussion regarding specific Olympic Games, see, Atlanta 1996—Davis 1996; McKelvey 1994; Sydney 2000—Kendall and Curthoys 2000; Salt Lake City 2003—Nish 2003; Wall 2002; Athens 2004—McKelvey and Grady 2004; Beijing 2008—Wall 2006; Wang 2005; Vancouver 2010—Misener 2002; Strawczynski 2004; London 2012—Blakely 2006; Montagnon and Smith 2006.
- 194.
The award of a major sporting event to a developing nation (e.g., Seoul, Korea (1988 Olympic Games), Beijing, China (2008 Olympic Games), South Africa (2010 FIFA World Cup), Rio de Janeiro, Brazil (2016 Olympic Games)) indicates that the developing nation has a threshold level of sophistication in its legal system sufficient to manage such an event and hosting the event may stimulate further general development of its laws.
- 195.
Regulations on the Protection of Olympic Symbols (promulgated by Decree No.345 of the State Council of the People's Republic of China on February 4,2002, effective as of Apr. 1, 2002), St. Council, Jan. 30, 2002 (China), available at http://en.beijing2008.cn/bocog/ipr/n214071828.shtml (last visited Sept. 10, 2010).
- 196.
- 197.
Scaria 2008, at 100.
- 198.
See Lucchi 2005.
- 199.
Olympic Insignia Protection Act 1987 (Cth) s 36 (Austl.) (prohibiting, among other things, the unauthorized use of “Olympic expression [s]” for commercial purposes so as to suggest sponsorship of certain Olympic interests); Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C.A. §220506(c) (2001) (prohibiting unauthorized use of Olympic marks “for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition”).
- 200.
For example, in the lead-up to the Sydney Olympic Games in 2000 and pursuant to obligations under the host city contract, Australia passed specific legislation to extend the protection afforded Olympic marks and to guard against ambush activity. Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth) (Austl.); see also Curthoys and Kendall 2001.
- 201.
Nafziger 2006, 871–73.
- 202.
Fink and Braga 2005, 19–40.
- 203.
- 204.
- 205.
See, e.g., Guttmann 1992.
- 206.
Olympic Charter, supra note 37, 11 para. 5.
- 207.
Id. at 83 r. 45(3). Another example is WADA's International Standard for Protection of Privacy and Personal Information, which establishes a minimum global standard that may provide more privacy protection to athletes than some countries' existing domestic laws. Protection of Privacy and Personal Information, World Anti-Doping Agency, http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-PPPI/WADA_IS_PPPI_2009_EN.pdf (last visited Nov. 6, 2010).
- 208.
Statutes, FIFA arts. 57, 59 (Aug. 2009), http://www.fifa.com/mm/document/affederation/federation/01/24/fifastatuten2009_e.pdf; see also Weger 2008.
References
Abrams RI (2005) Cricket and the cohesive role of sports in society. Seton Hall J Sports Entertain Law 15:39
Avlonitis G, Ladias S (2005) Ambush marketing and the olympic games Athens 2004. In: Panagiotopoulos DP (ed) Sports law: implementation and the olympic games 380
Barnes J (1983) Sports and the law in canada. 1st edn
Basedow J (2008) The State’s Private law and the economy: commercial law as an amalgam of public and private rule-making. Am J Comp Law 56:703–721
Beloff MJ, Kerr T, Demetriou M (1999) Sports law 7–12
Berman PS (2007) Global legal pluralism. South Calif Law Rev 80:1155
Betten R (2004) The avoidance of the international double taxation of sportspersons. Int Sports Law J (1–2):78
Betten R (ed) (2004) The international guide to the taxation of sportsmen and sportswomen
Bingham LB (2004) Control over dispute-system design and mandatory commercial arbitration. Law Contemp Probl 67:221
Blackshaw I (2004) Sports court getting right results, guardian. 3 June 2004. http://www.guardian.co.uk/sport/2004/jun/03/ianblack. last visited 6 Nov 2010
Blackshaw IS (2006) Introductory remarks to the court of arbitration for sport 1984–2004. In: Blackshaw IS et al (eds) The court of arbitration for sport 1984–2004
Blakely AM (2006) London olympic games and paralympic games act 2006: less presumptive than the london olympics bill. Entertain Law Rev 17:183
Blanpain R, Inston R (1996) The bosman case: the end of the transfer system?. Sweet and Maxwell, London
van den Bogaert S (2005) Practical regulation of the mobility of sportsmen in the EU post bosman
Caplan B, Stringham EP (2008) Privatizing the adjudication of disputes. Theor Inq Law 9:503
Carbonneau TE (2008) The revolution in law through arbitration. Clevel State Law Rev 56:233
Casert R (2009) EU sports chief demands WADA changes. Associated Press, New York 27 Apr
Champion WT (2009) Sports law in a nutshell. 4th edn
Coccia M (2009) Applicable law in cas proceedings: What to do with eu law?. In: Bernasconi M, Rigozzi A (eds) Sport governance, football disputes, doping and CAS arbitration
Curthoys J, Kendall CN (2001) Ambush marketing and the sydney 2000 games (Indicia and Images) protection act: a retrospective. 88 Murdoch U. Electronic JL. http://www.murdoch.edu.au/elaw/issues/v8n2/kendall82.html
Dabscheck B (2004) The globe at their feet: FIFA’s new employment rules: I. Sport in Soc’y, Spring 2004 at 1
Dabscheck B (2006) The globe at their feet: FIFA’s new employment rules: II. Sport in Soc’y, Jan 2006 at 1
Davis RN (1996) Ambushing the olympic games. Vill Sports Entertain Law J 3:423
Davis T (2001) What is sports law? Marq Sports L Rev 11:211
DiManno R (2006) A Gold in the scandal event; this year it goes to the austrians. Toronto Star, 22 Feb
Dimeo P (2007) A history of drug use in sport 1876–1976: beyond good and evil
Dirix A, Sturbois X (1999) The first thirty years of the international olympic committee medical commission, 1967–1997
Donohoe T, Johnson N (1986) Foul Play: drug abuse in sports 2–4
Dubin CL (1990) Commission of inquiry into the use of drugs and banned practices intended to increase athletic performance
Erbsen A (2006) The substance and illusion of lex sportiva. In: Blackshaw IS et al (eds). The court of arbitration for sport 1984–2004
Fainaru-Wada M, Williams L (2006) The truth about barry bonds and steroids, sports illustrated. 13 Mar 2006. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1116081/index.htm
Fink C, Braga CAP (2005) How stronger protection of intellectual property rights affects international trade flows. In: Fink C, Maskus KE (eds) Intellectual property and development
Fitch K (2008) A history of drug use in sport 1876–1976: beyond good and evil. Brit J Sports Med 42:76
Foer F (2004) How soccer explains the world
Foster K (2003) Is there a global sports law? Entertain Law 2:1
Foster K (2006) Lex Sportiva and Lex Ludica: the court of arbitration for sport’s jurisprudence. Entertain Sports Law J 3, available at. http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume3/number2
Francis C, Coplon J (1990) Speed trap: inside the biggest scandal in olympic history
Franke WW, Berendonk B (1997) Hormonal doping and androgenization of athletes: a secret program of the german democratic republic government. Clin Chem 43:1262
Fraser D (2005) Cricket and the law: the man in white is always right 125–32
Galluzzi D (2000) The doping crisis in international athletic competition: lessons from the chinese doping scandal in women’s swimming. Seton Hall J Sport Law 10:65
Gardiner S et al. (2006) Sports law 37–93. 3rd edn
Gordon H (2004) John Landy, Athletics Austl. http://www.athletics.com.au/fanzone/hall_of_fame/john_landy
Grayson E (1988) Sport and the law
Grayson E (1993a) Getting the right result. New Law J 143:61
Grayson E (1993b) International reports 1992: England. ANZSLA Newsletter, at 1
Guttmann A (1992) The olympics: a history of the modern games
Halberstam D (1994) Sports as a window of social change, sporting news. May 23, reprinted in Halberstam D, everything they had: sports writing from david halberstam 22, 27, Glenn Stout (ed) 2008
Halgreen L (2004) European Sports law: a comparative analysis of the european and american models of sport 23–32
Hart-Davis D (1986) Hitler’s games: the 1936 olympics
Healey D (2005) Sport and the law. 3rd edn
Houlihan B (1999) Dying to win: doping in sport and the development of anti-doping policy
Jacob R (2001) Trade marks and the olympic games throughout the years. Eur Intell Prop Rev 23:1
Jansen N, Michaels R (2008) Beyond the state? Rethinking private law: introduction to the issue. Am J Comp Law 56:527
Jinxia D (2003) Women, sport and society in modern China
Kaufmann-Kohler G (1999) Identifying and applying the law governing the arbitration procedure: the role of the law of the place of arbitration. In: Berg AJ van den (ed) Improving the efficiency of arbitration agreements and awards: 40 years of application of the New York convention
Kaufmann-Kohler G, Rigozzi A, Malinverni G (2003) Legal opinion on the conformity of certain provisions of the draft world anti-doping code with commonly accepted principles of international law. WADA-AMA.org, paras. 160–161 26 Feb 2003, http://www.wada-ama.org/rtecontent/document/kaufmann-kohler-full.pdf
Kelly GM (1987) Sport and the law: an Australian perspective
Kendall CN, Curthoys JC (2000) Running rings around the sponsors: the sydney olympics and ambush marketing. Austl Intell Prop J 11:5
Keys BJ (2006) Globalizing sport: national rivalry and international community in the 1930s
Kidd B, Edelman R, Brownell S (2001) Comparative analysis of doping scandals: Canada, Russia and China. In: Wilson W, Derse E (eds) Doping in elite sport: the politics of drugs in the olympic movement 153
Klose M (1989) Die Rolle des Sports bei der Europäischen Einigung
Lake T (2009) The way it should be, sports illustrated. 29 June at 56. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1157051/index.htm
Lazaroff DE (2001) The influence of sports law on american jurisprudence. Va Sports Ent Law J 1:44–49
Longman J (2009) South Africa under microscope one year before world cup. N.Y. Times, 28 June available at. http://www.nytimes.com/2009/06/28/sports/soccer/28soccer.html?_r = 1&scp = 1&sq = jere + longman+Microscope&st = nyt
Lucchi N (2005) Intellectual property rights in digital media: a comparative analysis of legal protection, technological measures, and new business models under EU and US Law. Buff Law Rev 53:1111
MacAloon JJ (2002) Double Visions: Olympic Games and American Culture. In: Adams WL, Gerlach LR (eds) The olympic games: ancient and modern 181
Magnay J, Toy M-A (2008) Propaganda bureau muzzles chinese press; guide for editors tells which issues must be avoided, the age (Melbourne). 14 Aug 2008, available at. http://www.muzzles.com.au/muzzles-articles/2008/8/14/propaganda-bureau-muzzles-chinese-press/
McArdle D (2000) From boot money to bosman: football, society and the law. Cavendish Publishing, London
McKelvey S, Grady J (2004) An analysis of the ongoing global efforts to combat ambush marketing: will corporate marketers take the gold in Greece? J Legal Aspects Sport 14:191
McKelvey SM (1994) Atlanta ‘96: olympic countdown to ambush armageddon? Seton Hall J Sport Law 4:397
McNamara L (2000) Tackling racial hatred: conciliation, reconciliation and football. Aust J Hum Rights 6:5–31
Mestre AM (2009) The law of the olympic games. T.M.C. Asser Press, The Hague
Michalos C (2006) Five golden rings: the development of the protection of the olympic insignia. Int Sports Law Rev 3:64–76
Misener L (2002) Safeguarding the olympic insignia: protecting the commercial integrity of the canadian olympic association. J Legal Aspects Sport 13:79
Mitchell F (2007) Olympian’s finest work came long after games. Chi. Trib. 10 Feb at 1, available at 2007 WLNR 2665280
Mitten MJ (1997) Foreword. South Texas Law Rev 38:999
Mitten MJ (2009) Judicial review of olympic and international sports arbitration awards: trends and observations. Pepp Disp Resol Law J 10:51
Mitten MJ, Davis T (2008) Athlete eligibility requirements and legal protection of sports participation opportunities. Va Sports Entertain Law J 8:71
Mitten MJ etal. (2009) Sports law and regulation: cases, materials, and problems 1–21. 2nd edn
Møller V (2005) Knud enemark jensen’s death during the 1960 Rome olympics: a search for truth? Sport Hist 25:452
Montagnon R, Smith J (2006) Intellectual property: the London olympics bill. Eur Intell Prop Rev N28:11
Morris PE, Morrow S, Spink PM (1996) EC Law and professional football: bosman and its implications. Mod Law Rev 59:893–902
Morrow HE (2004) The wide world of sports is getting wider: a look at drafting foreign players into U.S. professional sports. Houst J Int Law 26:649
Nafziger JAR (1992) International sports law: a replay of characteristics and trends. Am J Int Law 86:489
Nafziger JAR (1996) International sports law as a process for resolving disputes. Int Comp Law Q 45:130–149
Nafziger JAR (2004) International sports law, 2nd edn. Transnational Publishers, New York
Nafziger JAR (2006) The future of international sports law. Willamette Law Rev 42:861–876
Nafziger JAR (2009) A Comparison of the European and North American Models of Sports Organisation. In: Gardiner S, Parrish R, Siekmann RCR (eds) EU, sport, law and policy: regulation, re-regulation and representation 35–55
Nish NK (2003) Comment, how far have we come? A look at the olympic, amateur sports act of 1998, the United States olympic committee, the winter olympic games of 2002. Seton Hall J Sport Law 13:53
Opie H (1993) From the sideline: a message from the president. ANZSLA Newsletter, at 1
Opie H, Smith G (1992) The withering of individualism: professional team sports and employment law. Univ N S W Law J 15:313
Panagiotopoulos DP (2008) The application of THE LEX SPORTIVA in the context of national sports law. J Comp Law 9:123
Pinna A (2005) The trials and tribulations of the court of arbitration for sport: contribution to the study of the arbitration of disputes concerning disciplinary sanctions. Int Sports LawJ (1–2):8–17
Pound RW (2006) Inside dope 91–104
Press Release, Union Cycliste Internationale (2010) The Appeal by Carlos Roman Golbano Is Rejected 27 Jan 2010, available at. http://www.uci.ch/ (use “search” box, search “Golbano rejected” hyperlink) (last visited 8 Nov 2010)
Ravjani A (2009) The court of arbitration for sport: a subtle form of international delegation. J Int Media Entertain Law 2:241–284
Reeb M (2006) The role and functions of the court of arbitration for sport (CAS). In: Blackshaw IS et al (eds) The court of arbitration for sport 1984–2004
Rigozzi A (2005) L’Arbitrage International en Matière de Sport
Rigozzi A (2009) Available remedies against cas awards. In: Bernasconi M, Rigozzi A (eds) Sport governance, football disputes, doping and CAS arbitration
Ross SF (2004) Player restraints and competition law throughout the world. Marq Sports Law Rev 15:49
Rushin S (2005) Heaven helps them, sports illustrated. 2 May. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1111052/index.htm
Scaria AG (2008) Ambush marketing: game within a game. pp 96–99
Sharfman K (2003) Valuation averaging: a new procedure for resolving valuation disputes. Minn Law Rev 88:357
Sheridan P (2006) Italy’s drug laws put IOC to the test. Phila. Inquirer, 9 Feb
Shubert GW et al. (1986) Sports law
Simson V, Jennings A (1992) The lords of the rings: power, money and drugs in the modern olympics
Snyder B (2006) A well-paid slave: curt flood’s fight for free agency in professional sports 223
Sobel LS (1977) Professional sports and the law
Stewart B et al. (2004) Australian sport: better by design?
Straubel M (2005) Enhancing the performance of the doping court: how the court of arbitration for sport can do its job better. Loy U Chi Law J 36:1203
Strawczynski J (2004) Is Canada ready for the vancouver winter games? An examination of canada’s olympic intellectual property protection. U Toronto Fac Law Rev 62:213
Sturzaker D, Godhard K (2001) The olympic legal legacy. Melb J Int Law 2:241
Sweet L (2009) Obama White house putting muscle behind chicago 2016 Olympic Bid. Chi. Sun-Times (16 June 2009, 4:27 PM). http://blogs.suntimes.com/sweet/2009/06/obama_white_house_putting_musc.html
Tarasti L (2000) Legal solutions in international doping cases: awards by the IAAF arbitration panel 1985–1999
Teubner G (1997) Global law without a state
The Parliament of the Commonwealth of Austl. (1989) Drugs in Sport: An Interim Report of the Senate Standing Committee on Environment, Recreation and the Arts
Toro AM, Canepele P (1980) Codice Dello sport. In: Giuffrè DA (ed)
Toy M-A (2008) Games undesirables expelled from beijing. The Age (Melbourne), 12 July 2008. http://www.theage.com.au/world/olympic-undesirables-expelled-from-beijing-20080711-3dqj.html
Tygart TT (2003) Winners never dope and finally, dopers never win: usada takes over drug testing of united states olympic athletes. DePaul J Sports Law Contemp Probl 1:124, 126
Ungerleider S (2001) Faust’s gold: inside the East German doping machine
Van den Brink JP (2000a) E.C. competition law and the regulation of football: Part I. Eur Compet Law Rev 21:359
Van den Brink JP (2000b) E.C. competition law and the regulation of football: Part II. Eur Compet L Rev 21:420
Verroken M (1996) Drug use and abuse in sport, in drugs in sport 18–19. Mottram DR (ed) 2nd edn
Verroken M, Mottram DR (1996) Doping Control in Sport. In: Mottram DR (ed) Drugs in sport 235, 2nd edn
Voet W (2002) Breaking the chain: drugs and cycling: the true story, william fotheringham trans. 2nd edn
Wall AM (2002) The game behind the games. Marq Sports Law Rev 12:557
Wall AM (2006) Intellectual property protection in China: enforcing trademark rights. Marq Sports Law Rev 17:341
Wang SH (2005) Great olympics, New China: intellectual property enforcement steps up to the mark. Loy Law A Int Comp Law Rev 27:291
Warren I, Tsaousis S (1997) Racism and law in Australian rules football: a critical analysis. Sporting Tradit 14:27
Weger de F (2008) The juris-prudence of the FIFA dispute resolution chamber. p 39
Weistart JC, Lowell CH (1979) The law of sports
Wendehorst CC (2008) The State as a foundation of private law reasoning. Am J Comp Law 56:567
Weston MA (2009) Simply a dress rehearsal? U.S. olympic sports arbitration and de novo review at the court of arbitration for sport. Ga J Int Comp Law 38:97
Wolbring G (2008) Oscar pistorius and the future nature of olympic, paralympic and other sports. 5 SCRIPT-ed 139
Yablon C (1994) On the contribution of baseball to American legal theory. Yale Law J 104:227
Yasser R et al. (1990) Sports law: cases and materials
Yi DH (2006) Turning medals into metal: evaluating the court of arbitration of sport as an international tribunal. Asper Rev Int Bus Trade Law 6:289, 290 n.7
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Mitten, M.J., Opie, H. (2012). “Sports Law”: Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution. In: Siekmann, R., Soek, J. (eds) Lex Sportiva: What is Sports Law?. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-829-3_9
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