Sports Corruption: Sporting Autonomy, Lex Sportiva and the Rule of Law
![handle is hein.journals/entersport15 and id is 6 raw text is:
Serby, T 2017 Sports Corruption: Sporting Autonomy, Lex Sportiva and the
Rule of Law. Entertainment and Sports Law Journal, 15: 2, pp.1-9, DOI:
https://doi.org/10.16997/eslj.204
ARTICLE
Sports Corruption: Sporting Autonomy, Lex Sportiva and
the Rule of Law
Tom Serby
Anglia Ruskin University, GB
tom.serby@anglia.ac.uk
An apparent escalation in on-field corruption (doping and match-fixing) in professional sports has led to
increasing numbers of athletes facing bans and a loss of livelihood as a consequence of decisions taken by
sporting tribunals, as part of a regulatory system referred to as lex sportiva. This has led to challenges
in domestic courts from athletes over the lawfulness and fairness of these proceedings (for example
Pechstein and Kaneria). These challenges to the legitimacy of lex sportiva (and to the principle of the
autonomy of sport) echo Foster's (2003) critique of lex sportiva/global sports law as:
a cloak for continued self-regulation by international sports federations.. .a claim for non-intervention
by both national legal systems and by international sports law... [which] opposes a rule of law in
regulating international sport.
The paper considers what is the 'rule of law' that regulates on-field corruption, and concludes that it
is a complex web of law, since sports governing bodies now share with the state many aspects of the
sanctioning of on-field corruption. The paper considers how the doctrine of 'the autonomy of sport' has
informed the development of lex sportiva in regard to athlete corruption, and the competing claims of
private sports law and national legal systems over the regulation of athlete corruption.
Keywords: lex sportiva; transnational; match-fixing; autonomy; doping; global sports law
Introduction
Foster (2011: 45) described the use of disciplinary and arbitral tribunals to regulate athletes as a system which 'claim[s]
to be immune from challenge by national courts and ... is therefore a system of private transnational law beyond state
control'.' The paper considers the extent to which the state controls the sanctioning of on-field athlete corruption
(broadly match-fixing and doping).2 This analysis entails asking two questions: (i) to what extent can athletes challenge in
national courts bans imposed by sporting tribunals; and (ii) is the sanctioning of doping and match-fixing predominantly
a matter still for sports governing bodies and sporting tribunals, or are national laws and courts superseding lexsportiva?
The Autonomy of Sport and the Regulation of On-field Corruption
In relation to on-field corruption (i.e. athlete cheating), sports governing bodies (SGBs) have introduced detailed regula-
tions which are enforced through athletes submitting to internal disciplinary measures imposed by private sporting
tribunals, often with a right of appeal to the Court of Arbitration for Sport (CAS), whose jurisprudence has been dubbed
the source of the so-called 'lexsportiva, or 'global' sports law, a system whose fairness and adherence to international
legal norms Foster and others question.
The (enforced) use of private arbitration as the means for disciplining on-field corruption stems from the doctrine
of the 'autonomy of sport'. The word autonomy derives from the Greek words auto and nomos, and means 'those
who make their own law'. From the start, SGBs were viewed as autonomous entities regulating an activity which was
amateur and private and therefore not within the remit of state regulation.' The International Olympic Committee (IOC)
president Pierre de Coubertin (1909: 152) stated in 1909. 'The goodwill of all the members of any autonomous sport
grouping begins to disintegrate as soon as the huge, blurred face of that dangerous creature known as the state makes
an appearance'. By the mid twentieth century, with the advent in the Olympic Games of Soviet bloc countries where
there existed a culture of state regulation of sport, the Olympic Movement officially adopted the policy of autonomy
for the national International Olympic Committees, and the Olympic Movement as a whole (Chappelet 2010: 89). The
fifth fundamental principle of Olympism in the Olympic Charter refers to sports organisations having 'the rights and
obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure](ViewImageLocal?handle=hein.journals/entersport15&div=3&collection=&method=preview&ext=.png&size=3)
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Sports Corruption: Sporting Autonomy, Lex Sportiva and the Rule of Law
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