Sport is unique because of the following (non-exhaustive) factors:
1) Uncertainty of outcome (without which sport would not function – as seen by the way in which match-fixing, bribery and corruption are loathed by the sporting community)
2) Interdependency – the reliance upon the health of competitors will not normally be found in any other industry (Nike wants to put Reebok and Adidas out of business – if the Yankees put all its MLB competitors out of business, the Yankees die too)
3) Transfer system – in no other market is compensation received for the transfer of an employee
4) Career length – shorter than other industries (the average length of a professional footballer’s career is some 8 years)
5) Investment in training – in business a training scheme would typically be 2-3 years. In sport this can last for 15 years
Therefore sport has unique and distinctive characteristics that are not found in any other business. As a result, many are of the opinion that sport should be treated differently…that governing bodies should be given more autonomy and that a stringent application of law is not appropriate given sport’s distinctiveness.
The Courts have been reluctant to interfere with sport due to 1) uncertainty as to the scope of their jurisdiction in relation to sport and 2) an appreciation that sports governing bodies may be better-suited/equipped at dealing with sporting matters than a judge who may have little or no experience and understanding of sport whatsoever.
The pyramidal structure of the European model of sport results in sports governing bodies sitting at the apex. Inherent in this is a position of power and monopoly. At a European level, the Courts have recognized that this can lead to an athlete being unfairly disadvantaged and restricted in his/her activity. A result has been that the Courts have had little hesitation in laying down the law rigorously where they deem the restrictive measure to be unfair.
Often, the relevant sports governing body has argued that restrictions it places on athletes are necessary and inherent in the proper functioning of the sport, that such restrictions are in place to promote competition and that there are no less-restrictive alternatives available in relation to the outcomes sought. However, where rules of sporting associations fundamentally interfere with an athlete’s freedom of movement, or are deemed to be anti-competitive, the European Court of Justice has shown little hesitation in intervening.
Is sport an area in which the governing bodies should be free to regulate as they see fit? After all, it is their responsibility to ensure that the sport functions properly and remains healthy. Many would say that any regulation created by a governing body would only be implemented in the best interests of the sport.
Alternatively, those who favor a stringent application of law would prefer to see that an athlete does not have his/her rights restricted, even if it would potentially be detrimental to the sport. Where do we draw the line?