Legal-administrative implications of international sport for public administration

Abstract

This paper explores the intersection of public administration and its administrative state, transnational and global policy, and international sports governance. We start by exploring autonomy and self-governance in international sport before sharing the structures, legal personalities, and nature of transnational private law interaction with international sport. The implications are illustrated through three examples. The first is the legal-policy interactions of the FIFA World Cup 2022 with Qatar. The second are new interactions of human rights with future World Cups and future Olympics. The third is the role of the Court of Arbitration for Sport and the World Anti-Doping Agency. This leads to three implications for administrative scholarship: lex sportiva implications for public administration, a stretching of the autonomy and self-governance concepts, and expanding the evaluation stage of a policy cycle to include the governance legacies of mega sports events.

Keywords:

• Administrative state
• law
• transnational private law
• mega sports events
• lex sportiva
• legacy

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This is not merely about independence but also a depoliticization for corporate sponsors.

2 The principle of the independence of international sport governance from the state can originate in different forms. In some instances, the principle is via constitutional expression. Article 217 of the Brazil’s Constitution, for instance, provides that it is the duty of the state to observe the “autonomy” of sport organizations. In other instances, sports federations are vested with the right to autonomous government through an act of legislation. The US Olympic Committee is given its authority in the Amateur Sports Act of 1978. However, it is crucial to understand that while national sports federations might be designated by law, this does not impinge on the overriding transnational principle of international sports that such entities are to remain independent of interference by the state. Upon joining the IOC, national sports associations give up any assumed state-specific autonomies. See also Forster, 2006, p. 27.

3 The International Gymnastics Federation (established in 1881) and the International Rugby Board (established in 1883) preceded IOC creation by 12 and 10 years, respectively.

4 A seven-member collective head of state and head of government for Switzerland.

5 For examples of deference by U.S. courts, see Martin v International Olympic Committee (1984); San Francisco Arts & Athletics, Inc. v U.S. Olympic Committee & IOC (1987).

6 International sport governance fits somewhat awkwardly with the concept of global administrative law (GAL). GAL can help illuminate certain multistakeholder (public/private) initiatives such as anti-doping or integrity. As noted by Kingsbury et al. (2005, p. 54), there are ways in which “[s]ome global private governance organizations, such as…international sports federations have adopted certain procedures of accountability and review in order to enhance their effectiveness and legitimacy.” Such “procedures of accountability” have, at times, been prompted by state actors whether via judicial review of arbitral decisions (e.g., state punctures international sport examples in Table 1) or, more recently, anti-corruption initiatives (e.g., recent raid of Paris Olympic Committee headquarters).

7 The contracts are not international hard law as they are not signed by the state. State-signed international treaties are binding hard laws. However, neither the IOC nor the NOCs are the state. In addition, international soft law is non-binding since there is no state signatory. As such, contracts within international sport uniquely combine elements of hard and soft law. This is because sports contracts are understood to be highly persuasive and thus, they are treated as binding between (non-state) contracting partners.

8 Qatar Law No. 10 of 2021, Chapter 1.

9 Law No. 18 of 2020 amending certain provisions of Labour Law No. 14 of 2004.

10 Arbitration is a method of private dispute resolution in which parties agree to have a dispute resolved by a panel of one or more arbitrators. The decision to arbitrate is typically set forth in the arbitration clause of a contract. By agreeing to arbitration, parties waive rights to have the dispute resolved in court. Except for narrow circumstances under which arbitral awards might be appealed to a court holding jurisdiction, the decision of the arbitral panel is final, binding, and can be enforced by a court. Not all decisions coming from sports tribunals are considered arbitral, e.g., the FIFA Dispute Resolution Chamber is “quasi-arbitral”.

11 The Ted Stevens Olympic and Amateur Sports Act of 1978 (36 U.S.C. 2205) states that national governing bodies shall employ binding arbitration “conducted in accordance with the Commercial Rules of the American Arbitration Association.”

12 We emphasize “attempts,” e.g., the U.S. National Football League does not follow WADA guidelines. A two-week NFL suspension for performance-enhancing substances would receive a four-year suspension via WADA (Morgan, 2020).

13 See WADA Code (2021), Article 13.

14 Mutu and Pechstein v. Switzerland, Apps. 40575/10 and 67474/10, ECHR (2 February 2018).

15 As per De Oliveira (2017, 105), “the term lex sportiva in itself is controversial. It is a made-up term as the word sportiva is not found in Latin. It is an adaptation from a similar term which is also a source of transnational law, that is, the lex mercatoria.”

16 Duval (2013, 827) claims that 1990 is the earliest mention.

17 Stare decisis (“to stand by things decided”) is equivalent to a precedent in law.

18 Since lex sportiva is independent of the state, engagement between sport and public administrative typically arise when the administrative state pushes against norms or juridical rulings seen to violate the public interest. For instance, a July 2022 judgment of the European Court of Human Rights (Affaire Semenya c. Suisse (No. 10934/21)) held that South African runner Caster Semenya was discriminated against because World Athletics rules required her to take testosterone-reducing drugs to compete. This case illustrates how courts can challenge rules established by private sport actors. Yet, while this case involved a state impacting sport policy, sport policy can also feed into broader policy debates in a way that impacts public administration and public policy. The Semenya decision, for instance, feeds into debates about gender, equality, and how aggressively the state should seek authority into an independent sphere for the sake of universalizing norms. Similarly, recent debates in the US about the rights of college athletes to form labor unions or to have ownership over their Name, Image, and Likeness (NIL) rights has provoked policy shifts. In 2021, California passed Bill 26, which enables student athletes to earn compensation for NIL rights. Meanwhile the National Labor Relations Board is considering whether universities who do not classify athletes as employees are violating the National Labor Relations Act.

Additional information

Funding

Open Access funding provided by the Qatar National Library.

Notes on contributors

Zachary Calo

Zachary R. Calo is Professor of Law and Founding Professor at Hamad Bin Khalifa University. He is also Senior Counsel at McNair International and Of Counsel Sports Law at Schelstraete Equine Law.

Kim Moloney

Kim Moloney is an Assistant Professor of Public Policy at Hamad Bin Khalifa University. Her latest book, Who Matters at the World Bank, was published by Oxford University Press in 2022. Her work focuses on the intersection of public administration with transnational governance.

Kamilla Swart

Kamilla Swart is Associate Professor and Director of the Masters in Sport and Entertainment Management program, College of Science and Engineering, Hamad Bin Khalifa University. Her work focuses on contributing to sport, tourism and event knowledge in the developing context, and in the global South in particular.