LEX SPORTIVA:An assessment of a transnational law.

The term Lex sportiva is a peculiar one both in name and in substance.It is a peculiar sports law theory however its existence as well as its exact meaning is subject to debate.It was first used by sports law researchers in the 1990's.
According to the then president of the International Association of Sports law, Prof Dimitrious, sports rules are legal rules that form a special legal order and the global recognition of its autonomy is the only way to resolve relevant problems and to further sports law theory.It is not just transnational but also non governmental as well which makes it different from all other forms of law.

They are transnational in the sense that they involve several nations and boundaries,they involve both domestic and international level and they also affect private actors.For instance the Regulations for the status and transfer of players(RSTP),a document that governs the relationship of players and clubs on contracts,transfers etc.

     Lex sportiva is not just a transnational norms set by international federation but also a hybrid public_private norms.

One of the key actors in the jurispudence of the sports over the years has been the Court of Arbitration for Sports(CAS),a quasi judicial institution set up many years ago to adjudicate on sports disputes.The CAS over the years has made the claim of the development of a jurisprudence, one which is more than the application of a international law,or of general legal principles to the adjudication of sporting disputes.This is wider as the Lex Sportiva. A distinct jurispudence of universal legal principles used by the CAS in its adjudication.
      ''CAS jurisprudence has notably refined and developed 
        a number of principles of sports law,such as the concepts
        of strict liabilities (in doping cases) and fairness which
        might be deemed as part of the Lex Sportiva...''

CAS' decision in the above case buttressed the fact that the Lex Sportiva was intended to be a separate legal code for the arbitration body.

From the above decision,it appears that the Lex Sportiva is all about the proper interpretation and application of the various sports code.We might also say that the the the functions of the CAS go beyond interpreting the various legislative codes of sports federation but extends to the selection and creation of a harmonised best practise standards.Three different activities have been highlighted as some of the most relevant to the formation of the Lex Sportiva.

   First,the CAS has been applying general principles of law to sporting federations .

Secondly,it plays a significant role in interpreting sports law,thus influencing and conditioning rulemaking activity by sporting institutions.

Thirdly,as a body of higher jurisdiction which is only inferior to the  Federal Supreme court of Switzerland,it greatly contributes to the harmonization of global sports law.Those wishing to relate to any parts of the Lex sportiva have to abide to all its rules.The penalty ranges from temporary to life long suspensions.
Unlike the rules of Lex mercatoria,the Lex Sportiva acquire binding force by the coercive power of sports authorities and they do not need a formal act of a sovereign state and it is forbidden that a matter of Lex Sportiva goes to a civil court, FIFA forbids it,so does many sporting federations.

There have been arguments against the existence of the Lex Sportiva, that its rules come from private institutions and that they are contractual in nature with vague and uncertain content.
However,it is a truism to state that the highest sport authorities e.g FIFA,IOC and IAAF are more than international,they are global institutions. If sovereign states regarded as national institutions can create international laws,then global institutions must be creating global rules not some sorts of rules  inferior to that created by national institutions.

The argument that Lex Sportiva is contractual in nature may also be rendered useless since international law is also of contractual nature.After all,the theory of social contract which was developed during the age of enlightenment states that individuals expressly and impliedly gave up some of their individual rights and powers to a particular ruler.If the social theory is anything to go by, then even state authority is based on contract the same way there is an implied irrevocable contract among all stakeholders in the  transnational sports project and its supremacy has never been,is not and will never be in doubt


No comments