Projects

Sports Law

LEGAL RESPONSIBILITY IN SPORTS
CONTRACTS – ARBITRATION – ETHICAL – MANAGEMENT
AND COVID 19

Dimitrios P. Panagiotopoulos (Ed)

EKPA University Publishing
Athens, 2023

Sports Law Editor’s Preface

PREFACE

Sports law is defined as the special law that investigates the landscape of legal relationships that develop in sports and agonistic scene. It investigates the problems that arise during sports and competitive activity, which is under a special regime of rules of law, structure, organization, implementation and human behavior, on the basis of experts and in a special context of rules of law, set by the legislator, or the private initiative and in which there is supervision and control by the administration and the established sports authorities according to the provisions of the Constitution, laws and Lex Sportiva. Physical activity that is not subject to legal restrictions and regulations, as defined above, is not a subject of sports law.

Sports Law consists of: a) Rules of law for sports action on special issues of sports and the system of sports clubs, b) Rules of institutional autonomy, of Lex Sportiva for special sports issues: the spirit of sportsmanship, conduct of games etc. and offenses in sports activity, c) Rules of law to regulate more general issues about sports, physical education and physical activity for the purposes of physical well-being, health and strength, d) Special laws that regulate matters on racial discrimination in sports, boycotts of matches, the legality of use and respect of trademarks in sports and other related matters as well as e) Legislation on advertising and television rights of sports teams and sponsoring. Common law rules and general principles of law also apply to sport on many issues either directly, due to the lack of specific rules, or indirectly by absorption, with a corresponding adjustment in their application, and often derogate from common law rules, for example the principle “lex specialis derogat legi generali”.

In this book with the title Sports Law: Legal Responsibility In Sports, Ethical -Contracts – Arbitration – Management αnd Covid 19, the legal horizon of sports is fundamentally investigated. In particular, the First Part includes issues concerning the introduction to sports law, with a focus on intra-sport rules as Lex Sportiva. Τhe Second Part, in the context of Sports Law, deals with issues such as ethics and responsibility in international Sports activities and the application of the Wada Code. In the Third Part, issues regarding contracts in sports, contracts of athletes and the protection of athletes are examined. The Fourth Part addresses issues of sports jurisdiction, arbitration in sports and the operation of judicial bodies such as CAS at the international level and the protection of human rights. The Fifth Part includes issues related to Sports Law and management such as the role of UNESCO in supporting the rights of children sports for all, the right of personal development, risk management in Top sport and sports activities as a lever for tourism development. The Sixth Part deals with issues related to Sports Law and COVID-19 as: The impact of coronavirus global health emergency on sports law, civil liability caused by the outbreak of coronavirus in sports law and athletes’ agreements and FIFA COVID-19.

This work on Sports Law, beyond the educational needs in the corresponding university courses, is also addressed to those who face either theoretical problems in research, or problems of solving practical issues in daily practice related to Sports Law and for the subsequent researchers and a useful tool for further “digging” in the “plateau” of this science.

On the occasion of this publication, I would like to thank all the authors as mentioned in the editorial in the effort to complete this work. I would like to especially thank the board members, associates and members of the International Association of Sports law which has demonstrated a rich activity in the field of science since 1992 (year of establishment). For the editing of the texts and the corrections, I especially thank Daphne Panagiotopoulou, as the Special Editor of this work.

Thinking that Sports Law has already crossed the threshold of the 21^st Century, on a path of no return and with the belief that we contribute to the development and future of the science of Sports Law, we publish this work as a small contribution to research and teaching of Sports Law such as in effective operation and the best   administration of the sports clubs and institutions internationally.

Special thanks to the National and Kapodistrian University of Athens and dear colleague Professor Sergios Theodoridis EKPA publications manager for the consideration he showed to include this work in his publications.

Athens, March 2023

Dimitrios P. Panagiotopoulos
Professor, National and Kapodistrian University of Athens
President of International Association of Sports Law (IASL)

Table of Contents

Preface
Abbreviations

Part.1
INTODUCTION INTO SPORTS LAW THEORY

I. Introduction of Sports Law
1. Lex Sportiva and Sport Institutions
1.1 The athletic act from a legal perspective
2. Sports rules as rules of Law
2.1. The principle of effective cause in sports
2.2. Sports rules as a legal rule of sport
3. Theory of sports organisation
3.1 Lex Mercatoria and Lex Sportiva
3.2. Lex Sportiva and traditional legal orders
4. Sporting Contest: As a cause -generating rules of law
4.1. Generating cause
4. 2. Ludica theory and Lex Sportiva
4.3 Homo Loudens theory and Lex

II. Lex Sportiva – Lex Olympica and International Sports Law
1. Subjects of International Law
2. International law vs. domestic- national law
3. Enforcement of international law
4. International Sports Law, or “unethnic” Sports Law? Lex Sportiva-Olympica?
4.1 Features
4.2 A new species of internationalized sports law
4.3 Lex Sportiva – Lex Olympica: an unethnic Law of International Practice
5. Lex Sportiva a Category of Sports Law, Ludica Isn’t Lex

ΙII. Italian Sport Reform – An epochal turning point still in stand

1. Introduction.
2. The “new” sport worker and the abolition of sports tied contract.
3. Paralympics.
4. News on sports company law
5. Other news: sports agents, facilities, gender violence and winter sports.
6. Doubts and criticisms. Conclusive considerations.

Part.2
ETHICAL AND LEGAL RESPONSIBILITY IN SPORTS

I. Some Consideration about Sport as Intrinsically Ethical Activity

1. Introduction.
2. The ethical nature of sport within sports legal systems.
2.1. What is the founding value of sport?
2.2. Issues.
3. Sport within state and/or international legal systems.
3.1. Sport and state legal systems.
3.2. Legal Issues.
4. Further issues

II. Ethical and Legal Responsibility in International Sports

1. Introduction.
2. Deontology and Ethics in Sports World.
2.1 Deviant and Criminal Behavior in Professional Sports
2.2 The Legal Nature of Professional Sports and Liability for Unlawful Behavior
3.Corruption in Professional Sports
3.1 Concept and Extent of Corruption in International and Professional Sports
3.2 Criminal Charity and Money Laundering in Professional Sports.
3.3 Sports and Illegal Gambling
4.Manipulation of the Results of Sports Competitions
5.Corruption and Embezzlement during the Construction of Sports Facilities during the Olympic Games and FIFA World Cup (On the Example of Russia)

ΙΙΙ. Sports Criminology
1. Introduction
2. Sports Criminology: Theory and Methodology
3. Contents of sports criminology:
4. Types of Sports Crimes

IV. Implementation of Wada Code in the Greek Sports Legal Order
1. Introduction
2. Greek Anti-Doping Rules – LAW 4791/2021.
i. Definitions.
ii. Prohibited List.
iii. Strict liability.
iv. Burdens and Standard of Proof.
v. Mandatory Provisional Suspension after an Adverse Analytical Finding or Adverse Passport Finding.
vi. Results Management – Right to a fair hearing and notice of hearing decision.
vii. Automatic disqualification of results.
viii. Sanctions on individuals.
ix. Elimination of the period of ineligibility where there is no fault.
x. Contaminated products.
xi. Results management – Appeals.
xii. Automatic binding effect of decisions by signatory anti-doping organizations.
3. CAS 2018/A/5651 Georgios Kostakis v. Hellenic National Council for Combating Doping

V. The Protection of Intersex and Transgender Athletes from Discrimination under the European Convention on Human Rights

1. Introduction
2. The conditions for determining whether there is discrimination under Article 14 of the ECHR
2.1. Whether the alleged claim falls within the ambit of one of the substantive provisions of the ECHR in conjunction with Article 14
2.2. Whether there is a differential treatment for individuals by the state parties or non-state actors within its jurisdiction
2.3. Whether the person concerned is treated differently compared to others in a similar or analogous situation to him or her
2.4. Whether there is an objective and reasonable justification
3. The protection of intersex and transgender athletes against discrimination based on their gender identity and sex characteristics in light of the ECHR.

Part.3
CONTRACTS OF PROVIDING AND OFFERING SPORTS SERVICES

I. The Legal Nature of the Professional Player’s Contract In Light of the French and Kuwaiti Laws
Introduction
I. The Dispute on the Legal Nature of the Professional Player’s Contract
1. Professional Player as a Contracting Contract
1.1. Demonstrating that the Professional Player’s Contract is a Contracting Contract
1.2. Criticism of those who support the view of the Professional Player’s Contract as a Contracting Contract
2. Professional Player Contract as an Employment Contract
2.1 Demonstrating that the Professional Player’s Contract is an Employment Contract
2.2 Criticisms of the Professional Player’s Contract as an Employment Contract and Responding to it
II. Similarities and differences between a Professional Player’s Employment Contract and an Employment Contract
1. Common Characteristics of a Professional Player’s Employment Contract and an Employment Contract
2. Distinctive Features of a Professional Player’s Contract
Conclusion

II. Protection of Professional Players
Introduction
1. Scope of the protection of professional players
1.1 Protection of Athletes from unfair contract terms – excessive duration of the contractual commitment.
1.2 Rules for the activity of agents – Protection of minors.
1.3 Protection of Athletes during doping testing – personal data of athletes
2. Protection shortage and international legitimatized basis for the Lex Sportiva
2.1 Personality of Athletes – The right to participate in the Olympic Games
2.2 Bargaining power of the Athletes against mandatory clause of arbitration
2.3 Personal and economic freedom in the international field of sport
2.4. Regulatory framework of the Lex Sportiva

Part. 4
SPORTS ARBITRATION

I. Arbitral Jurisdiction in Sports Activities
1. Sporting jurisdiction
1.1. Concept
1.2. Definition
1.3. Competence of the sport arbitral organs to rule on the constitutionality of the law
2. Arbitral jurisdiction
2.1. Arbitration in Greece
2.2. International arbitration
3. Arbitration in sport
3.1. The International Sporting Jurisdictional System
3.2. The principle of excluding recourse to the national courts

II. The Judgment of Sport Jurisdiction Bodies on Doping Cases
Introduction
1. Combating Doping
2. International bodies vs national bodies
2.1. The case of Irene Kokkinariou
2.2.The case of Tatyana Chernova
3. WADA vs International body
3.1. The case of José Paolo Guerrero
3.2. The case of Damar Robinson
Conclusion

III. Protecting Human Rights, Competitive Equity, and Sports Integrity in Binary Athletic Competition in a Nonbinary World
1. Introduction
2. Historical IOC Athlete Eligibility Guidelines for Female Olympic and International Sports Competition, IF Rules, and CAS Jurisprudence
3. 2021 IOC Framework and Its Recommended Role in Future CAS Adjudications of the Legality of IF Athlete Eligibility Rules for Women’s Sports Competitions and Events
3.1 Recommendations
4. U.S. Legal Process for Resolving Disputes Regarding Athlete Eligibility Rules for Female Olympic Sports and Judicial Precedent Regarding Non-Olympic Sports
4.1 Professional Sports
4.2 High School Sports
5. 2022 NCAA Sport-specific Transgender Student-Athlete Participation Policy

IV. The Kiss That Kept the Precedent for Proportionality
1. Introduction
2. Gasquet’s Initial Hearing
3. Puerta: A Case Too Exceptional to be True
4. Changes to the WADC Take Place Following Puerta
5. Gasquet’s Case Shows that the Precedential Value of Puerta Remains
6. The WADC Continues to Be Revised
7. The Puerta Precedent Remains Despite Continued Revisions
8. Puerta Remains Valid Precedent Despite a Lie

V. The Development and Evolution of the Court of Arbitration for Sport and the Code of Sports-related Arbitration
1. Introduction
2. The General development of the Court of Arbitration for Sport
2.1. Brief introduction of CAS origin and development history
2.2. Foundation of CAS development
2.3. Swiss Law provide the basis for CAS
2.4. International sports autonomy system
2.5. Driving force of CAS development
2.6. Demand for international sport dispute resolution
2.7. Typical sports cases
3. Development and evolution of Code of Sports-related Arbitration
3.1 CAS Code of 2004 edition
3.2 CAS Code of 2010 edition
3.3 CAS Code of 2012 edition
3.4 CAS Code of 2013 edition
3.5 CAS Code of 2016 edition
3.6 CAS Code of 2017edition
3.7 CAS Code of 2019 edition
3.8 CAS Code of 2020 edition
4. Principles for the development and evolution of CAS and its Code
4.1 Enhance independence and impartiality
4.2 Improve arbitration efficiency
4.3 Increase transparency
4.4 Enhancing equal protection
1.5 Strengthening jurisdiction

Part. 5
SPORTS LAW AND MANAGEMENT

I. Good Governance in National Sports Organizations:
The Need For The Internal Dispute Resolution Procedures
1. Good governance = “rule of the game”
2. Good governance in sport as an EU value
3. Internal dispute resolution procedure as a pillar of good governance in national sports organizations

II. The Role of UNESCO in Supporting the Rights of Children
1. Introduction
2. Definition of concepts
3 .The most important international organizations that defended the right of the child to engage in physical activity
4. Reference legal texts in international laws
5. The most important decisions related to the rights of children to practice physical education during MINEPS meetings
6. Has the Algerian national legislation ever contradicted the international legislation regarding the organization of physical education?
7. The reality of physical education in Algeria

III. Sports for All, the Right of the personal development and physical exercise
1. The Right of the personal development and physical exercise
1.1. Individual utilization and physical exercise
1.2. Physical exercise, individual and public interest
1.3. Personality development and satisfaction of individual interest
1.4. Social benefit and public interest
2. Sports / Physical Exercise for Everyone in the Greek and international reality
2.1. Historical data and institutional status
2.2. Constitutional acquis
2.3. Greek Legislative Practice for Sports / Physical Exercise for All
2.4. Exercise and sports programs for all social groups at the national level.
2.5. The types of sports / exercise programs for everyone

IV. Risk Management in Topsport
Introduction
1. Subjects of the risk
2. Understanding the meaning of management
3. Management tools
4. Risk Analysis and Risk Management managerial tasks
5. The professional risk of sport
6. Sports betting, gambling
7. Sporting event security risks
7.1 Responsibility of the organiser
7.2 Entry to the sports event
7.3. Prohibition
7.4. Camera surveillance
8. Spectator participation in the sporting event
9. The field of attacks against the traditional values of sport
9.1 Doping
9.1.1. Doping offences
9.1.2 Doping Control
9.1.3 Responsibilities of sports organisations in the fight against doping
9.1.4. Dangers of diversion, possible future of doping
9.2 Cheating
9.3. Match-fixing
9.3.1. Cases from the field of match fixing
9.4. Illegal sports betting
9.5 Gender hacking
9.6. Citius, Altius, Fortius?

V. Constitutional Chart of Sport Management for New Demands and Higher Expectations in International Practice
1. Human rights in sports action
1.1. Labour freedom and personality development
1.2. Restrictions of financial freedom in sports action
2. Legal order in international sports action
3. The need for specific regulation in the sector of sport management
4. Suggested fields for regulation by the Foundation Charter of sports management
4.1 .Special framework of regulations for Football Managers
5. Legislation of sports in the European Union

VI. SPORTS ACTIVITIES AS A LEVER FOR TOURISM DEVELOPMENT
1. Purpose and methodology of research
2. Descriptive results and answers comparison
3. Comparison of research hypothesis results
4. Comparison of important correlations

Part. 6
SPORTS LAW AND COVID-19

I. Impact of Coronavirus Global Health Emergency on Sports Law
1. State of the Art
2. Legal Implications of Sport as a Socio-Economic Sector
2.1. Impact on Sport as an industry
2.2. On the cancellation of sports events
2.2.1. The tricky concept of “force majeure” in private law
2.2.2. The Court of Arbitration for Sport (CAS) and “force majeure” cases
3. The Postponement of the Tokyo 2020 Olympic Games and its Effects
3.1. Significant precedents
3.1.1. Avian Influenza and SARS and the 2008 China Olympics
3.1.2. The “zika” virus outbreak and the Brazil 2016 Olympic Games
3.1.3. HIV/AIDS and the paradigm shift
3.2. Cancellation versus postponement of the Olympic Games
3.2.1. The controversial decision of the International Olympic Committee
3.2.2. Effects of the postponement

II. The Intervention of Public Administrations in Sport: Competences to Ensure the Impact of new Technologies within Sports Federations
1. Initial Status
2. Desenvolvimiento de la Figura En El Ámbito de las Federaciones Deportivas
3. Basic Regulatory Requirements
4. Specialities of The Treatments to Be Supervised

III. Civil liability caused by the outbreak of corona virus in sports law
Introduction
1. Civil liability caused by the outbreak of corona virus in sports law
1.1. Legislation
1.2 Mediation mechanism
1.3. The principle of fairness
2. Examining the legal aspects of liability for the transfer
2.1. There are differences regarding the compatibility of the “principle of fairness” and the “principle of Ex aequo et bono” and how it is used in arbitration or judgment.

IV. Athletes’ Agreements and FIFA COVID-19 Guidelines & FIFA COVID-19 FAQ) – Hult Case
1. Professional athletes
2. Remunerated and professional athlete’s agreement
3. Form – Terms on the agreement’s validity
4. Remuneration – bonuses distributed to the athletes
5. Greek Law and Lex Sportiva (FIFA COVID-19 Guidelines & FIFA COVID-19 FAQ) – Hult Case

Bibliography

Authors

Prof. Adel BEHBEHANI, Civil law at the Kuwait University, Kuwait

Prof. Matthew J. MITTEN, Marquette University, USA 

Prof. András NEMES, Hungarian University of Sports Science, Advocate, Attorney-at-Law, Hungary

Prof .Dimitrios P. PANAGIOTOPOULOS, National and Kapodistrian University of Athens, Advocate, Attorney-at-Law, Greece

Prof. Juan Francisco RODRÍGUEZ AYUSO (Dr.), International Doctor of Digital Law from the University of Bologna, Italy

Prof. Huiying XIANG, Shanghai University of Political Science and Law, China

Asst. Professor Anna di GIANDOMENICO, University of Teramo, Italy

Asst. Professor Daniel GANDERT, Northwestern University Pritzker School of Law, USA

Asst. Prof., Dr. Marina KAMEŅECKA-USOVA, EKA University of Applied Sciences, Latvia

Asst. Prof. Yousefi SADEGHLOO-AHMAD, Attorney- at- Law, specialist in Sport law, IRAN

Asst.Prof.,Karina ZALCMANE  Director of Bachelor program “Law” at EKA University of Applied Sciences (Riga), Latvia

Dr. Elena ATIENZA-MACÍAS, Post-doctoral «Ramón y Cajal» Researcher, Deusto University, Faculty of Law, Donostia-San Sebastián, Spain

Dr. Nassereddine KESRI, Lawyer, Sports Law specialist and Doping in Sport, Algeria.

Dr. Vasilios OIKONOMOU, Lawyer, Greek Parliament Member, Greece

Dr. Panagiotis D. PANAGIOTOPOULOS, Harokopio University, Department of Economics and Sustainable Development, Sports Management and Master of administration, Greece.

Dr. Anatoly PESKOV (PhD), Attorney- at-Law, Chairman of the Board of Directors of the International Athlete Rights Association (IARA) and a member of the Board of Directors of the IASL(IASL), Russia.

Dr. Maria FRANCESCA SERRA, Contract Professor in Sports Law at UNICUSANO, Italy

Konstantinos KONSTANTINIDIS, MSc in Sports Science and Candidate of Sports Law, National and Kapodistrian University of Athens, Greece

Zografenia KALLIMANI, Lawyer (LLM in Sports Law), Law Degree, European University of Cyprus, Special Certificate of Sports law, National and Kapodistrian University of Athens, Greece

Balázs FARKAS, Lex Sportiva Hungarian Society of Sports law Ltd, Hungary

Jennifer TÓTH,   Lex Sportiva Hungarian Society of Sports law Ltd, Hungary

Editorial

Coordinators of Chapters
Prof. (Asst.) Anna di GIANDOMENICO, University of Teramo, Italy
Dr. Elena ATIENZA-MACÍAS, Post-doctoral «Ramón y Cajal» Researcher, Deusto University, Faculty of Law, Donostia-San Sebastián, Spain
András NEMES Prof., Semmelweis University Budapest, Hungary
Anatoly PESKOV (PhD), Attorney- at-Law, Chairman of the Board of Directors of the International Athlete Rights Association (IARA) and a member of the Board of Directors of the IASL(IASL), Russia.

General Editing
Daphne Panagiotopoulou, Lawyer, LLM, National and Kapodistrian University of Athens, Greece

Scientific Committee
Prof. Juan Francisco RODRÍGUEZ AYUSO (Dr.), International Doctor of Digital Law from the University of Bologna, Italy
Prof. Adel BEHBEHANI, Lawyer, Civil law at the Kuwait University, Kuwait
Prof. (Asst.) Anna di GIANDOMENICO, University of Teramo, Italy
Prof. Xiaoai LIN, Science and Technology University of Nanjing, China
Prof. Matthew J. MITTEN, Lawyer, Marquette University, USA
Prof. Dimitrios PANAGIOTOPOULOS Lawyer, Attorney-at-law, National and Kapodistrian University of Athens, Greece
Prof. Haris PAMPOUKIS, Lawyer, National and Kapodistrian University of Athens, Greece.
Prof. Huiying XIANG (PhD), Shanghai University of Political Science and Law, China