Clarendon Law Lecture Series 2022-23
The 2022-23 series will be given by Professor Stephen Weatherill, Emeritus Jacques Delors Professor of European Law. The series will be made up of three lectures to be given on Monday 14th , Wednesday 16th and Thursday 17th November at 5:30pm in The Gulbenkian Lecture Theatre at the Faculty of Law.
The lectures will be presented in person with recordings made available at a later date. The event will not be live streamed.
Registration details for each lecture are listed below.
We hope you will be able to join us.
"FIFA's business plan is to deny it has a business plan": how (and why) governing bodies in sport resist regulation, how (and why) they can be regulated better.
Governing bodies in sport dream fondly of escaping legal supervision and instead enjoying autonomy to make their own choices. They typically advance some plausible arguments in favour of that prize, as well as some wildly implausible ones, and they devise clever strategies to achieve it - most of all, through commitment to arbitration in order to keep disputes 'in house'. But sometimes autonomy runs dry, and governing bodies find that they must defend their practices before courts. They commonly argue that 'sport is special': that legal rules should be interpreted in the peculiar context of professional sport. They typically advance some plausible arguments in favour of that interpretative sensitivity, as well as some wildly implausible ones. The case law of the EU's Court of Justice offers a rich store of insights into just when sport is truly special, and what that entails at law. Consider the transfer system, rules on player nationality, and anti-doping: the pending 'European SuperLeague' case is just the latest episode. And yet: isn't it time to be more ambitious? Intriguing though the application of competition (anti-trust) law to sporting practices is, it is ex post, reactive and ad hoc. Should sports law be more proactive? Isn't it time to clean up sporting governance by setting aside autonomy disciplined from time to time by the accidents of litigation in favour of ex ante regulation pursuant to a comprehensive legislative regime? Action of this type taken unilaterally by states is unlikely to be effective, and so it is the European Union which is the strongest candidate to deliver systematic reform. The prize is huge: let's make sport better.
Lecture 1 - What is "sports law"? Do governing bodies in sport make law or are they merely subject to it?
There are two kinds of "sports law". Call them internal and external. Internal sports law comprises the rules and practices according to which governing bodies structure their activities. In formal terms it is a system of private ordering, but it is remarkably dense and relatively sophisticated. Resonant 'law-like' labels are used: there is an Olympic Charter, FIFA has its own governing 'Statutes', World Athletics (formerly the IAAF) has a 'Constitution'. External sports law refers to the law of states and of international organisations such as the European Union which applies to sporting bodies when they operate within a particular jurisdiction. The thematic tension is generated by the typical claim of governing bodies in sport that they deserve autonomy from legal regulation - that is, that external sports law should respect the autonomy of internal sports law. In order to protect the integrity of their sport, they claim that their expertise in setting the rules of the game must be respected and that those rules should apply globally, free of fragmentation caused by compliance with the idiosyncracies of local law. They often claim too they are not really businesses at all, but rather custodians of social and cultural jewels. There are obvious normative questions about the proper scope that should be accorded to 'sporting autonomy', but in practice many sports have been successful in creating their own dispute resolution system which keeps matters ‘in house’. This is the province of arbitration, and the development of an intricate pattern of decisions taken by the Court of Arbitration for Sport.
Lecture 2 - Judging Sport: How impressed are courts by claims that sport deserves autonomy from regulation, and how impressed should they be?
Sport is not typically allowed absolute autonomy. In arbitration, the public policy exception under the New York Convention is one aspect of concern to assert values that shall be - and should be - protected by courts in defiance of the aspiration of governing bodies in sport to keep disputes ‘in house’. But sport is typically allowed conditional autonomy. That means that laws are applied to sport with sensitivity to its special features which distinguish it from ordinary economic activity. Consider the interdependence of competitors: most producers dream of monopoly power but in sport it is worthless because a team needs credible rivals to play against. Sports governing bodies tend strategically to exaggerate just how different sport is from other sectors in a bid to maximise their autonomy from legal supervision, and so judges find themselves confronted by intriguing questions about when and why sport truly is different enough to justify some degree of special treatment, and what form that should take. The EU offers rich case studies. The Court of Justice has been asked to assess the compatibility with EU internal market law of the transfer system, rules on player nationality, anti-doping, and the ‘gatekeeping’ function of governing bodies tasked with deciding which new events should be authorised and why. Frictions arise in particular where the regulatory power enjoyed by governing bodies overlaps with their commercial incentives, and currently in Case C-333/21 the Court is considering whether UEFA has violated EU law by reacting aggressively to the plans of a group of clubs to withdraw from UEFA's Champions League and participate instead in a new European SuperLeague.
Lecture 3 - Making sport better.
Much of sports law involves checking whether practices pursued by governing bodies are compatible with the laws of the jurisdiction in which the sport is played. That is: external sports law is applied to internal sports law. But this is ex post, reactive and ad hoc. Should sports law be more proactive? In particular, have the many scandals which have plagued major sports in recent years deprived governing bodies of credibility when they claim autonomy, and should instead legislative pre-conditions – on representation, on equality, on accountability, on governance generally, on compliance with human rights, and perhaps too on the shape of the preferred Model(s) of Sport(s) – be imposed on those that wish to act as governing bodies and to offer sports events to the market? That is, is it time for sports law to move beyond its traditional focus on competition (anti-trust) law and become more actively regulatory in character? If it is, who can do it and who should do it? Action taken unilaterally by states is unlikely to be effective, and so it is the European Union which is the strongest candidate to deliver systematic reform, but does it and should it have the authority to assume such a role? We must engage with questions about public regulation and private autonomy, relative expertise, regulatory capture, legitimacy, and whether EU rules will become global standards (the ‘Brussels effect’). But the prize is huge: let's make sport better. There's a World Cup next week, time is short.