#259      39 min 12 sec
Sport court: Where international sports and legal systems converge

Legal experts James Nafziger and Hayden Opie describe the growing role of law in professional sports, and how varying legal systems worldwide grapple with issues of sports dispute resolution, commercialization, corruption, and athletes’ rights. Presented by Peter Mares.

"Sports law can make it easier for sports federation officials, sports association officials and so on, to make a decision that otherwise might be controversial. They have no choice. They need to follow the law and I think that's been another byproduct of this whole movement of international sports law." -- Prof James Nafziger




Prof James Nafziger
Prof James Nafziger

James Nafziger is Thomas B. Stoel Professor of Law and Director of International Programs at Willamette University College of Law, Salem, Oregon, USA. Professor Nafziger teaches and writes extensively in the fields of sports law, international law and dispute resolution international business transactions, immigration and refugee law, comparative law, international arbitration and litigation, and conflict of laws. He is former President and Chair of the executive committee of the American Branch of the International Law Association and is Secretary of the American Society of International Law. He is also a member of the State Department's Advisory Committee on International Law. His other professional leadership includes current service as chief administrative officer of the American Society of Comparative Law, president of the International Association of Sports Law and membership on the National Council of the United Nations Association. Professor Nafziger has authored or edited eleven books, more than 100 articles and text chapters, and 75 other published writings.

Hayden Opie
Hayden Opie

Hayden Opie is the Director of Studies of the Melbourne Sports Law Program, a program he founded 25 years ago and built into one of the most successful in the world. A graduate of the the University of Melbourne and the University of Toronto, he teaches and researches in all areas of sports law including anti-discrimination in sport, labour market regulation and medico-legal questions such as injury liability and anti-doping. Hayden founded the Australian and New Zealand Sports Law Association, served as its first President for eight years and is the Association's first Life Member. Hayden sits on the Australian Government’s Anti-Doping Rule Violation Panel and the National Basketball League’s Appeal Tribunal. He is a member of various international and national sports law associations and advisory bodies and has conducted investigations and hearings into a variety of disputes for Australian sport governing bodies. In 1995 he carried out an independent inquiry into the Australian Institute of Sport's women's artistic gymnastics program on behalf of the Federal Minister for Sport and in 2009 he received the ANZSLA Contribution to Sport Award.

Credits

Presenter: Peter Mares
Producers: Kelvin Param, Eric van Bemmel
Audio Engineers: Gavin Nebauer
Voiceover: Nerissa Hannink
Series Creators: Eric van Bemmel and Kelvin Param

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VOICEOVER 
Welcome to Up Close, the research talk show from the University of Melbourne, Australia. 

PETER MARES
I'm Peter Mares, thanks for joining us. Sport is often promoted as a way of bringing people together across borders and cultures, whether it's the world game soccer, played by millions, or a specialised and highly technical pursuit like pole-vaulting. The international Olympic movement sees sport as a tool for promoting peace and development, for building a better world by forging friendships amongst athletes and their communities. On this programme, we'll hear about another way in which sport has the potential to enhance international cooperation and understanding, and that's through the development of sports law. Sports law encompasses much more than just the rules of the game. In fact, it's often more concerned with what takes place off the playing field than on it. Sports law takes in a broad range of issues from copyright to corruption, from discrimination to doping, from sponsorship to salary caps. Joining us to explain the development of sports law and its wider contribution to legal ideas and legal practice, are two internationally recognised scholars, both are speaking at a conference marking the twenty-fifth anniversary of the sports law programme here at the University of Melbourne. James - or Jim Nafziger is the Thomas B. Stoel Professor of law and Director of International Programmes at Willamette University College of Law in the United States, and he's also Honorary President of the International Association of Sports Law. James Nafziger, welcome.

JAMES NAFZIGER
Thank you very much. I'm glad to be here

PETER MARES
And Hayden Opie is Director of Studies for the Melbourne Sports Law Programme at the University of Melbourne and he was the founding president of the Australian and New Zealand Sports Law Association. Hayden Opie, welcome to you.

HAYDEN OPIE
And thank you.

PETER MARES
Hayden Opie, let's start with you. What is sports law?

HAYDEN OPIE
That's a really hard question. It might sound simple but it's quite hard. One way of seeing it is the intersection of law and sport but it's sports in a very wide ranging activity and it raises a very wide range of legal issues. Scholars have debated whether there is a unifying singular principle of sports law and there probably isn't.

PETER MARES
So we can't compare it to like criminal law for example or torts or things like that?

HAYDEN OPIE
Simply, probably not. It can range from criminal law issues if there was a fight on a sports field through, as you've already suggested, to complex copyright-law issues to do with the broadcasting of sports events or the trading and ownership of the logos that are frequently associated with teams.

PETER MARES
Well, I think the Manchester United football club in England, its logo is one of the most widely recognised trademarks in the world.

HAYDEN OPIE
They are, they're very popular and it demonstrates the wide appeal of sport and the fact that sport sells.

PETER MARES
James Nafziger, does sports law also reach onto the field of play itself?

JAMES NAFZIGER
Well, it does and what is really complicating is that you really have two regimes. You have the regime of rules on the playing field and then you have, I guess, up above another regime of sports law or international sports law and so you have to work out various rules - secondary rules to relate one to the other. There is for example a non-interference rule. It's developed in international sports law by which the sports authorities, within the Olympic movement and otherwise, are committed to not interfering up to a point in what goes on on the playing field. That's entirely up to the rules because you do have after all a kind of artificial conflict that...

PETER MARES
Well, exactly. I was going to say I mean some of the things that happen on the playing field - I mean if you think of a sport like rugby, football, for example, or gridiron in the United States or Australian football here in Australia or indeed something like boxing, what's going on - if you did that on the street, it'd be assault.

JAMES NAFZIGER
Exactly. A tort or a crime.

PETER MARES
So there are occasions when that may happen, where something that happens on the field goes beyond the rules of the game and becomes a criminal act.

JAMES NAFZIGER
Well, that's right. It's a difficult distinction to make sometimes but, by in large, the law remains regardless of what the rules of the competition - playing-field rules are.

PETER MARES
I guess another complication, Hayden Opie, is that every nation state has its own legal system. Some have common-law systems, some have civil-law systems, yet we compete internationally so we need an international system to have international competitions like the Olympics or the World Cup of soccer or football, that sort of thing. So does that create issues, that you've got different national laws and then you're trying to come together on the international playing field?

HAYDEN OPIE
I think the fear has been amongst international sports bodies that because their rules and their operations are across many nations. Let's say an event is occurring in Japan and an incident or a question arises as to some legal aspect of that event that the Japanese courts might become involved and they say the rules mean this. The same incident occurs in Brazil and the Brazilian courts become involved and they say it mean something else, yet you're trying to operate a unified system. That has encouraged sports to build a system of dispute adjudication through arbitration - and Jim is really one of the great experts on this - and the body there is called the Court of Arbitration for Sport.

PETER MARES
We might come to discuss what that Court of Arbitration for Sport does in a moment. But Jim Nafziger, you've identified, I think, three kind of periods in the development of sports law. The first one was an era from 1960 to about 1988. What was the focus of sports law in that period?

JAMES NAFZIGER
Well, I think the focus was multiple. There was certainly a great deal of political turmoil during that period. One thinks of the boycotts of the Olympics in Moscow and Los Angeles...

PETER MARES
And of course there was the Cold War and the Soviet Union and the United States...

JAMES NAFZIGER
Because of the Cold War and an example that must really be known here in Melbourne involved the famous water-polo match in the Melbourne Games in 1956 between Hungary and...

PETER MARES
And the Soviet Union.

JAMES NAFZIGER
...the Soviet Union at precisely the time of the Hungarian revolution and the...

PETER MARES
There was blood in the water.

JAMES NAFZIGER
There was blood in the water. That's one characteristic of that period.

PETER MARES
But I guess, another example of that was boycotts against South Africa as well, over Apartheid and...

JAMES NAFZIGER
Well, that's right.

PETER MARES
...Rhodesia.

JAMES NAFZIGER
Yeah. That goes down more or less as a positive aspect in the sense that - it's certainly my conviction - and I share it with others - that the international sports law movement, if you want to put it that way, at least international sports-minded organisations had a great deal to do with the elimination of Apartheid in that very sports-minded country of South Africa. But you did ask me about the first era and for us, one of the signal developments was the growth of what we can call an incomplete but certainly effective regime of international sports law within the Olympic movement, more at that time than I think is the case today.

PETER MARES
And then you say things changed and a second era began in about 1988. What was crucial about 1988? That was the Seoul Olympics that year, I think.

JAMES NAFZIGER
Well, I always think of Ben Johnson, the Canadian sprinter, who got into a great deal of trouble for doping and there certainly had been efforts to combat doping in sports though with respect to recreational drugs. In any event, beginning in about 1988, the problem of doping became a focus of international sports law. It led to new institutions, first within the Olympic movement, and then outside the Olympic movement to try to combat this scourge that continues today.

PETER MARES
Yeah, it's an ongoing issue of course. Hayden Opie, I guess another thing that changed in 1988 or soon after, was the end of the Cold War and so we no longer had this kind of stand-off between the Soviet block and the United States which was really played out in a way on the sporting field, wasn't it?

HAYDEN OPIE
Yes it was and it also, I think, signals the beginning of the major commercialisation of the Olympics. People might know that in 1976 when the Games were hosted by Montréal, there was a very large public debt as a result of that. The Soviet Union spent a huge amount of money holding the Games in 1980 and for the next time, there weren't too many people willing to take on the Games. I think the Americans, at Los Angeles, produced a new model for funding the games through sponsorships and other forms of commercialisation and things took off from there.

PETER MARES
And of course, once you get that sort of money involved and sponsorship, then you've got issues around trademarks, broadcast rights, you're going to need a lot of lawyers as well, aren't you?

HAYDEN OPIE
They are complex issues and one of the expressions that you hear so often is what's called an ambush marketing exercise whereby somebody, who's not an official sponsor, wants to associate their brand with the Olympic Games in ever increasingly creative ways but without actually infringing the trademarks of the Olympic movement or of the sponsors.

PETER MARES
Yeah but they want to do it without paying as well.

HAYDEN OPIE
And they want to do it without paying that same amount of money and so therefore we get governments, and indeed the Olympic movement, saying unless you get your laws into order to protect us against that sort of activity, we won't be letting you host the Games.

PETER MARES
And so in Beijing with the Beijing Olympics in 2008, I think that led to China tightening up some of its copyright rules, for example.

HAYDEN OPIE
I think it had a role in that. China has improved its copyright laws and I think the Olympics had a role in that.

PETER MARES
I’m Peter Mares and you're listening to Up Close. In this episode, we're discussing the development of sports law and its contribution to legal ideas and legal practice beyond the playing field. My guests are two international experts in the field, Hayden Opie and James Nafziger. Now, James Nafziger, you said you identified three eras in sports law. We've been through the first two. Presumably we're now in the third era. What's different about the third era?

JAMES NAFZIGER
Well, I think we're entering an era where not only is commercialisation involving the so-called golden triangle of media, advertising and sponsorships to be taken for granted and to be dealt with accordingly, but I think we're entering an era where the whole structure of international sports, and international sports law with it, is changing. I think it's not correct any longer to say that the structure is essentially the Olympic movement which was first and foremost in the first two eras. I think we're finding more in the way of public-private cooperation in combating problems. I think we're concerned a good deal more about various institutions that don't necessarily fit within the old Olympic movement and maybe most importantly, I think some of the problems that have hit the Olympics and the international federation - FIFA for example, the football association is a good example - are having a real impact, not only in public opinion but in terms of the restructuring of international sports. To my way of thinking - and I hope I'm not too optimistic about this - I think there’s had to be a much greater emphasis on the individual rights of athletes as well.

PETER MARES
I guess, Hayden Opie, with the emergence of commercialisation and the amount of money in sport, that also raises the risk of - or the opportunities for corruption, doesn't it? And Jim Nafziger alluded there to some of the problems FIFA, the football federation, has had. We've had problems in the Olympic movement as well of essential corruption involved in who gets to be a host nation and who gets to build a stadium, that sort of thing.

HAYDEN OPIE
It's a serious issue and many of the governance structures - the checks and the balances - haven't existed in the big international sports federations. We saw that with the scandal over the bidding for the Salt Lake Olympic Games in 2002 and the great confrontations that occurred within the Olympic movement in the late 1990s. The IOC - that's the International Olympic Committee -reformed itself very considerably and offers a model to other international sports bodies. But we certainly, from a legal perspective, do see a lot of talk and discussion about developing governance structures which will minimise - and I don't think they'll ever eliminate - the risk of that form of corruption.

PETER MARES
Well, let's look at some of the institutions that have grown up along with international sports law. First of all, there's something now called the Court of Arbitration for Sport. Jim Nafziger, what's the Court of Arbitration for Sport?

JAMES NAFZIGER
Well, the Court of Arbitration for Sport, not unlike all of the leading institutions, emerged from the Olympic movement. It is largely independent of it - deliberately independent of it - to avoid a conflict of interest. But it arose as a single means by which - in a somewhat formal manner, disputes could be resolved involving decisions of sports bodies within - including the international federations within the movement...

PETER MARES
So the football federation or the hockey federation...

JAMES NAFZIGER
That's right.

PETER MARES
...or the swimming federation, cycling whatever.

JAMES NAFZIGER
All sports associations within national systems. Also to resolve disputes, not only within the Olympic movement generally, but more specifically during the conduct of the Games and eventually the world organisation that was established to handle those matters was the Court of Arbitration for Sport.

PETER MARES
So it presides at every Olympics but it also exists in between the Games for other disputes.

JAMES NAFZIGER
That's right, yeah.

PETER MARES
It's based in Lausanne in Switzerland, I think.

JAMES NAFZIGER
That's correct.

PETER MARES
Now, can we compare it to the International Court of Justice, is it a similar sort of thing?

JAMES NAFZIGER
Not really. The International Court of Justice hears cases between states or cases that arise out of the United Nations. The Court of Arbitration for Sport, on the other hand, is involved with what are essentially private disputes or disputes between athletes and non-governmental organisations. It's a very different kind of complex - and it's arbitration rather than adjudication.

PETER MARES
The difference being that it can't impose penalties or whatever. It basically tries to find an agreement or resolution of the conflict between the parties?

JAMES NAFZIGER
Well, it can play a role as a mediator. Yes, it can in fact uphold certain sanctions that have been imposed on athletes or organisations. It has a lot of clout. It can take measures. It's not that that distinguishes it from adjudication, it's more in the way of procedures, it's more in the way of some of the state-based aspects of adjudication that don't exist in the Court of Arbitration for Sport. Nevertheless, the line can be somewhat fine and you find arbitral awards that come very close to assuming that they're court judgements when in fact they're really not.

PETER MARES
Hayden Opie, can you give us some examples of the sort of cases that the Court of Arbitration for Sport has heard?

HAYDEN OPIE
Well, as Jim suggested earlier, doping is one of its main areas of jurisdiction and it's just not at Olympic Games. It could be at a Commonwealth Games or a world cup of football where the court will preside. Selection disputes have been common...

PETER MARES
So whether someone's qualified...

HAYDEN OPIE
Yeah, yeah.

PETER MARES
...or eligible to run in a certain race...

HAYDEN OPIE
Yeah, so it might be that there's, say - to put it an Australian context, Australia is proposing to send a team to an Olympic Games and the sport has created rules for selecting which athletes are for the team and there's a dispute as to whether the rules have been properly applied. And so a disaffected athlete may take a claim to the Court of Arbitration for Sport, to say, well, look, I should be on the team and that other athlete should not be there. In the lead up to any major games, there is usually a run of this sort of cases.

PETER MARES
Now, if this is not an international court but it's a tribunal essentially, does anyone have to pay any attention to it or can they say, well the court might have ruled this but I'm going to ignore it anyway because I want to do what I want.

JAMES NAFZIGER
It's taken very seriously. There's a case in the United States this last year involving antitrust trust law and it resulted in an application of an award by the Court of Arbitration for Sport with regard to the decision of an international federation, and that decision was not necessarily determinative but it was very influential and leading the court to actually absolve the international federation from an antitrust claim that otherwise might have held within the United States. A point that we shouldn't lose here is that these sort of garden variety arbitrations that may occur within a single legal system, such as the United States, can be appealed to the Court of Arbitration for sport and their decisions are taken very seriously, I can assure you.

PETER MARES
So it is like an ultimate court of appeal. Let's look at a couple of examples because you can see where national law and international arrangements come into conflict. So, I think for example in the Winter Olympics in Vancouver, there was a case taken because there was no women ski jump, there was men's ski jumping but not women's ski jumping and women said, well, this is discrimination. And they took a case based on the Canadian Charter of Rights and Freedoms so that's a very fundamental law in Canada, it's their charter of rights. What happened in that case?

JAMES NAFZIGER
Well, in that case the courts of the province of British Columbia simply stuck to the basic rules of the Olympics that had called for any initiative to bring women's ski jumping to the Olympics to have been done by a certain date that hadn't been done, and the courts also determined that even something as fundamental as the human rights law of Canada couldn't trump those decisions. So that had to do with the organisation of the Olympics and they, the courts of British Columbia, could not interfere with that.

PETER MARES
So does that mean that the international arrangements always trump national law, Hayden Opie?

HAYDEN OPIE
I don't think so. I think it depends a little bit. There was a case some years ago here in Australia where there was the wider international context was a fight for the control of indoor soccer between FIFA and a rival body and FIFA directed its member nations around the world that players playing in the rival indoor soccer competition should be banned.

PETER MARES
So if I played indoor soccer under the rival association, I wasn't allowed to play outdoor soccer under FIFA, under the...

HAYDEN OPIE
Correct.

PETER MARES
...international football federation.

HAYDEN OPIE
Correct. And an Australian player brought legal proceedings in Australia saying that that restrained his pursuit as a professional athlete - the pursuit of his trade. And he was successful and the court - the Federal Court of Australia - said, well, look, it doesn't really matter that the Australian body may have been directed by FIFA to do this, it still breaches the laws of Australia and was therefore an invalid act. So it perhaps depends a little bit on the context as to who wins the fight. I would have thought that if you went back 50 years and said that sport would win any of those fights, the result would have been from commentators, no sport shouldn't win any. Now, I think it's a little bit more grey.

PETER MARES
Well, certainly it would seem that a tussle for control between two rival football associations shouldn't trump someone's right to play whatever football they want to play. It seems like the court might have made the right decision in that case. Let's look at another bit of international legal architecture that's emerged and that is what's known as WADA - the World Anti-Doping Agency, whose president is incidentally an Australian, the former Premier of the state of New South Wales, John Fahey. How does WADA - the World Anti-Doping Agency - work, Hayden Opie?

HAYDEN OPIE
Well, it's a very interesting organisation. You might loosely describe it as a joint-venture between international sport on the one hand and governments on the other. And  its board consists of representatives in equal numbers of both sides and they share the presidency as it arises. And its job, with the support of a UNESCO Convention to have governments commit to anti-doping causes, to provide laws within their countries that support anti-doping, and on the other hand to call on sports bodies to adopt and apply something known as the world anti-doping code, which is more or less a model code for the rules of sport to discourage and punish doping.

PETER MARES
Jim Nafziger, is it winning the war against doping?

JAMES NAFZIGER
Well, I think it may not be winning the war but it's winning a lot of battles and I would cite the cause celebre in the United States of Lance Armstrong...

PETER MARES
The cyclist.

JAMES NAFZIGER
...as an example. Thinking about that requires us to acknowledge that WADA doesn't operate entirely on its own as an international body. It operates through national bodies. There's one in Australia, there's one in the United States - USADA as it's called - the United States Anti-Doping Agency - took a very, very positive role in that whole effort to track down what Lance Armstrong was up to. So to that extent, it's been an effective mechanism that goes way beyond what most people think about in terms of doping by athletes. It has to do with problems involving trainers, problems involving organisations, cover-ups, and when it comes to the doping itself, masking agents as well as more positive kinds of chemistry.

HAYDEN OPIE
If I can just develop one of those points that Jim was making. It was USADA which really brought Armstrong to account...

PETER MARES
That's the US....

HAYDEN OPIE
Yes...

PETER MARES
...the US Anti-Doping  …

HAYDEN OPIE
Yes, the US Anti-Doping Agency. It wasn't the international cycling union and that has led to all sorts of accusations, and currently a power struggle within that sport to reform its governance.

PETER MARES
So what you're suggesting here is that having these agencies has a wider impact of potentially forcing reform, cleaning up sporting federations - global sporting federations - and that sort of thing.

JAMES NAFZIGER
And prompting the governments to take action. I'd cite, as an example, baseball in the United States which is a sort of an exotic sport here in Australia and other parts of the world but is at least the former national pastime in my country. Baseball ranked right up there with cycling as a sport that was doing almost nothing about the doping problem with virtually no anti-doping efforts well into this past decade. The support for WADA, surprising support for a multilateral convention like the UNESCO Convention - in so far as the United States doesn't rush into such multilateral conventions - the support for all of that really was very effective in prompting our Congress to hold hearings on the whole range of issues involving baseball. There'd been some exposes revelations and so on, and it added up to some much stricter measures on the initiative of Congress, but really, I think, against the background of an organisation of growing importance.

PETER MARES
This is Up Close. I'm Peter Mares and I'm speaking with two of the world's leading experts on sports law - Professor Jim Nafziger from the United States, and Australian legal scholar, Hayden Opie. Hayden Opie, another development has been the creation, or I suppose the amassing of a body of law which you call Lex Sportiva. What is Lex Sportiva?

HAYDEN OPIE 
I think there's some debate about that in scholastic circles. At one level, it might be a body of rules and interpretations developed by the Court of Arbitration for Sport to do with the various kinds of disputes that come before it.

PETER MARES
So a sort of setting of precedents as it were.

HAYDEN OPIE
Yeah and Jim has earlier spoken about the idea of the external authorities of sports not getting involved in on-the-field issues. And one of the rules developed by the Court of Arbitration for Sport is the field of play, a rule or doctrine, and that is that if something happens on the field which is usually of a decision by a referee or a judge or some element to do with the organisation of the event which might affect its result, then the Court of Arbitration for Sport will not get itself involved in that as a general matter.

PETER MARES
So it won't look at whether that goal really was a goal or not, that sort of thing?

HAYDEN OPIE
And it's left to the discretion of the on-field officials and any process of appeal that might be available...

PETER MARES
But they won't second-guess that?

HAYDEN OPIE
They're not going to come in and second-guess. They're just going to stay out of that completely. And an example of that was - remember some years ago here in Australia, a game had concluded, the final siren had been sounded but the umpires had not heard that sound because of the noise from the crowd and the weakness of the siren and there was a score...

PETER MARES
After the siren.

HAYDEN OPIE
...after the siren and so]...

PETER MARES
Which changed the result.

HAYDEN OPIE
Which recounted - changed result and therefore what should you do about that...

PETER MARES
Who won.

HAYDEN OPIE
Exactly and it's those sort of decisions which the Court of Arbitration for Sport said should not be dealt with by lawyers after the event. So that's quite an interesting element of Lex Sportiva. Some other scholars will say that Lex Sportiva also includes the, what you might call the legislation of sport, the various rules and constitutions and other documents that govern the organisation of sport. But it is really a kind of sports law but not made by the official courts of countries or by the official parliaments of countries.

PETER MARES
Just built up through these decisions of the Court of Arbitration of Sport, Jim Nafziger?

JAMES NAFZIGER
Yes and the Court of Arbitration for Sport has to deal with very difficult issues of where to draw the line and typically in my view will be  deferential to the field-of-play mechanism and to decisions based upon that. There was a recent Court of Arbitration for Sport case involving a photo finish that really was effectively a tie between two women in a triathlon of the London Games and it clearly was a tie. But ultimately the court ruled that a decision awarding a gold medal to one of them and not to the other was appropriate based upon what the camera showed. So it's not so much the lawyers, it's not so much the officials even who are making the decisions, it's the cameras and the computers that are entering the scene as well.

PETER MARES
Now why should anyone outside sport care about sports law? Does it have applications that go beyond the realm of sport, Hayden Opie?

HAYDEN OPIE
I think there are two dimensions to that. The first is what I would call the educational value of sports law. When a legal issue arises in the context of sport - and it may be any number of possible legal issues - general members of the public who are not necessarily very knowledgeable about legal matters, will learn about those legal matters because they're interested in sports, so it's a great conduit for conveying legal knowledge. And in some places where there isn't the rule of law but there is arbitrary rule, teaching people that there is a higher authority, a principled authority which they can expect to be governed by and I think that's a good thing.

PETER MARES
So it can help spread the idea of the rule of law as a norm, as a principal for a good society?

HAYDEN OPIE
I believe so. So, if you see a soccer match and there's a dispute and there's a tribunal such as the Court of Arbitration for Sport deciding some issue about the eligibility of a player and this is the way you proceed and it's dealt with fairly by impartial judges, then that norm can be translated into a domestic society where those norms don't apply in day-to-day life. Indeed, it can go on to influence people. For instance, we accept that there should be no discrimination between people on the basis of their sex but there are some countries in the world which have not selected women, suitably qualified eligible woman on their teams because of a practice of not doing so and sport has created pressures - perhaps not fully developed yet - which encourage those countries to change their ways and that might create better opportunities for women to play sport in those countries.

PETER MARES
So that's the educative side of sports law...

HAYDEN OPIE
Yes.

PETER MARES
What's the second aspect?

HAYDEN OPIE
The other aspect, I feel, is that sport does sometimes present a rather unique environment in which to decide matters of general legal principle and it forces judges and legislators to think very carefully, in fact sometimes to re-evaluate the ways in which they shape laws and to define things more closely at the margin and...

PETER MARES
Why is that? Is that because it throws up such unusual cases?

HAYDEN OPIE
I think so and if you, say, look at economic competition law and people who study that area, a disproportionate number of important cases in economic competition law have come from sport because sport has some rather unusual characteristics in that if you want to put on sporting competition, you have to cooperate with your competitors and that is the antithesis of free-market behaviour, where you compete with your competitors freely.

PETER MARES
You want to put them out of business but...

HAYDEN OPIE
Absolutely.

PETER MARES
...if you put all the other teams out of business, there won't be much of a competition, will there?

HAYDEN OPIE
Precisely.

JAMES NAFZIGER
In a sense, sports law - and not only international but national sports law - really helps support the better angels of our nature. Take the issue of doping, poll after poll has shown that when put on the spot, people are opposed to doping but in reality they would just assume see the fastest and the highest and so on, even if that's the product of doping. Sports law, the regulations against doping in this case really helps support the general public opinion against doping even if there's a tendency for sports fans having paid a lot of money for their tickets to want to see whatever goes on. And  then there's another dimension, I think, and that is sports law can make it easier for sports federation officials, sports association officials and so on, to make a decision that otherwise might be controversial. They have no choice. They need to follow the law and I think that's been another byproduct of this whole movement of international sports law.

PETER MARES
Now, Jim Nafziger, you said something interesting earlier. You said that you thought sports law could advance the cause of human rights. Now, if I understood you correctly...

JAMES NAFZIGER
Yeah.

PETER MARES
...why do you say that?

JAMES NAFZIGER
Well, I think we're seeing it, for example, in cases involving mixed gender, cases involving prosthetic devices, the blade runner Oscar Pretorius being, of course, the most salient example of that. We are seeing it in the use otherwise of artificial devices to assist those that are disabled. It's not uncontroversial. There's those who argue - even a member of our own United States Supreme Court - that the whole idea of sports competition rests on the principle of inequality, and so according to this Supreme Court Justice, there's no reason to try to even things up. But in any event, those would be a couple of current, rather difficult examples, of human rights issues. Just the whole matter of equitable sports development around the world, I think, is a human-rights issue in so far as it shouldn't just be the wealthy nations that provide the top athletes...

PETER MARES
So you're talking about sort of levelling the playing field between countries in Africa, say, or small island states that may not have the sort of resources to train in national sports academies, big swimming pools, sporting fields, all that sort of stuff?

JAMES NAFZIGER
That's right and sports is important. The World Bank knows that, the Inter-American Development Bank knows that, the Asian Development Bank knows that and they're increasingly supporting development through sports.

PETER MARES 
Why is sport important? Why does it matter?

JAMES NAFZIGER
Well, because it's so fundamental in most cultures and because after all, it is the manifestation, I guess you'd say, of physical fitness, what's good for people, because it does bring people together and sometimes they fight with each other. But much of the time they're simply competing in a very creditable manner.

PETER MARES
And Jim Nafzinger, to conclude, what do you see is likely to be the big challenges for sports law in the years ahead?

JAMES NAFZIGER
Well, I think there are remaining very important issues related to commercialisation, related to just the relationship between sports bodies. For example, we haven't talked at all about the role of the European Union, which is figured large in the international sports law and questions of how its rules relate to potentially conflicting rules of sports organisations. There are serious issues between the demands, of, we call it due process or natural justice on the one hand, and national legal systems and the long-standing difference of international sports law and international sports organisations, to decisions of athletic bodies which to a very surprising extent can be immune from court jurisdictions simply because of what's called the speciality - the special nature of sports. All of this has to be worked out. I think lawyers can play a major role in working out some of those entanglements of jurisdiction.

HAYDEN OPIE
I would add one other issue and that is match fixing and what would be called in European terms, the manipulation of sports results.

PETER MARES
Especially with the rise of gambling on all sorts of sports.

HAYDEN OPIE
Well, it’s certainly related to gambling. I think there's an acceptance in international sporting circles that gambling can't be banned out of existence. It will occur and therefore there needs to be a cooperative effort to control or minimize match fixing. And I think that in the coming years we'll see an international convention to do with match fixing. A European convention is being drafted now and it will provide a model for an international convention and we'll see a very elaborate cooperative arrangement between governments, gambling operators and sports bodies, larger than we see currently with doping. And there is one view that match fixing poses a much greater threat to the popularity and integrity of sport than does doping and so I think that that's going to be a very fertile area for legal regulation and activity in the future.

PETER MARES
Hayden Opie and James Nafziger, thank you both for joining us on Up Close.

HAYDEN OPIE
Thank you.

JAMES NAFZIGER
It was a pleasure. Thank you.

PETER MARES
Hayden Opie is Director of Studies of the Melbourne Sports Law Programme at the University of Melbourne - a programme celebrating its twenty-fifth anniversary - and Jim Nafziger is the Thomas B. Stoel Professor of law and Director of International Programmes at Willamette University College of Law in the United States. He's also Honorary President of the International Association of Sports Law. Up Close is a production of the University of Melbourne, Australia and you'll find links to relevant information, a full transcript of this program and other episodes of Up Close on our web site at upclose.unimelb.edu.au. This episode was recorded on 11 July 2013. Up Close is created and produced by Kelvin Param and Eric van Bemmel. The audio engineer was Gavin Nebauer. I'm Peter Mares. Thanks for listening. I hope you can join us again soon.

VOICE OVER
You've been listening to Up Close. We're also on Twitter and Facebook. For more info, visit upclose.unimelb.edu.au. Copyright 2013, the University of Melbourne.


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