Towards a typology of (international) comparative sports law (research)

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Date: January-April 2011
Publisher: ASSER International Sports Law Centre
Document Type: Article
Length: 13,136 words
Lexile Measure: 1590L

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1.Introduction

Sports law is an independent field of law: it complies with the requirements that can be set for the existence of fields of law. (1) Sports law consists of a private and a public segment. The private segment is formed by the rules of organised sport. Organised sport is built up of national organisations for each sport, which are members of regional (continental) and global federations. This segment is a hierarchical pyramid with global federations such as the world football association FIFA at the top, with UEFA as the regional organisation for Europe. There is also the Olympic Games, under the auspices of the International Olympic Committee, which heads the national Olympic Committees and with which global federations cooperate.

The rules of organised sport are largely of a transnational character. For each sport there is in fact a single legal order in which the national and international levels are highly integrated. The rules of football, for example, are the same worldwide and there are uniform regulations for transfers of professional footballers from one club to another.

The private segment of sports law, also known as lex sportiva, forms the core of the legal field. There is also a public segment that bears far more of an incidental character in terms of regulations. This consists primarily of national legislation and a number of regional and universal treaties that relate particularly to sport. Naturally, sport is in general subject to the national and international public legal systems. In the European Union, for example, the jurisprudence of the European Court of Justice has led to the development of what could be described as European sports law. (2)

Writing from an international private law perspective, Kokkini already stated in 1988 that if one reviews the comparative law publications of recent decades, it is easy to see that, with the exception of the recognition that comparative law is not a branch of objective law, such as family law or maritime law, and that it can be helpful in achieving many objectives, there is as yet no generally accepted theory about comparative law. Those engaged in comparative law appear to be very enthusiastic about distinctions. Almost everyone active in the field feels obliged to introduce at least one new distinction, which, needless to say, reduces the chances of reaching a consensus about the theoretical principles of comparative law - and this is not even taking the confusion caused by the use of the same terms to mean different things into account. A few examples of such distinctions are:

a. internal and external comparative law (comparing legal systems of countries with the same or a different social system);

b. national and international comparative law (bilateral, between two national legal systems, or multilateral up to and including universal);

c. comparative law in the stricter and wider sense (the study of normative rules as such or also including the reasoning of law and the wider environment of the rules);

d. horizontal and vertical comparative law (comparing legal systems...

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Gale Document Number: GALE|A352250406