I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.
I hope they will trigger your attention and I look forward to any feedback you may have!
Antoine
Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.
Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.
Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.
Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as
part of its members - allegedly, as an attempt by then FIFA President,
the Brazilian João Havelange, to showcase football as an instrument of
peace between Israeli and Palestinians. Ironically, almost 20 years
after Palestine’s anointment into the FIFA family, instead of peace it
is the conflict between Israeli and Palestinians that moved to FIFA. In
recent years the Palestinian Football Association (PFA) and the Israeli
Football Association (IFA) have been at loggerheads inside FIFA over the
fate - I will refer to it as the transnational legality – of five (and
then six) football clubs affiliated to the IFA which are physically
located in the Israeli settlements in the Occupied Palestinian
Territories (OPT). This chapter chronicles the legal intricacies of this
conflict, which will serve as a backdrop to discuss arguments raised
regarding the legality of business activities of corporations connected
to the Israeli settlements. Indeed, as will be shown in the first part
of this chapter, the discussion on the legality of economic activities
in the OPT has recently taken a business and human rights turn involving
systematic targeting of corporations by activists. Interestingly, we
will see that this business and human rights turn also played a role in
the conflict between the IFA and the PFA. This case study is therefore
an opportunity to examine how the strategy of naming and shaming private
corporations, and in our case not-for-profit associations, for their
direct or indirect business involvement in the settlements has fared. It
is also an occasion to critically assess the strength of the human
rights ‘punch’ added to the lex sportiva, by the UNGPs.