[Interview] Antoine Duval: ‘We have the goal to steer the field of transnational sports law to think critically about its Eurocentricity’

This summer, the Paris 2024 Olympic Games will bring fans together worldwide. Global sporting events like the Olympics are governed by a transnational legal regime, lex sportiva, which enmeshes private regulation with national and European law. A new open-access monograph "The European Roots of the Lex Sportiva: How Europe Rules Global Sport", explores the role of European legal institutions, processes, and norms within the governance of global sports. We spoke with senior researcher Antoine Duval, co-editor of the book, to understand why he became interested in this field and what the book is about. Duval: 'We are hoping to spark critical research on how dominant European institutions and processes are in the world of sports governance'. An interview. 

In a couple of weeks, fans from all over the world will be glued to their screens to watch the Olympic Games. Global spectacles like the Olympics bring us together for a moment as a global community. This idea of universality, used by sports governing bodies (SGBs) such as the International Olympic Committee (IOC) to justify their transnational authority, hinges on the ideal of a global level playing field. Thus, international sports events operate under a transnational regulatory regime –lex sportiva– which is being created and enforced by SGBs, making it a prime example of global private law-making and law-enforcing.   

SGBs like the World Anti-Doping Agency (WADA), the International Federation of Association Football (FIFA) and the IOC govern through private regulations. Disputes are settled by specialised courts like the Court of Arbitration for Sports (CAS), shaping the interpretation of these rules and sports law in general. This system is supported ideologically by the idea of the ‘autonomy of sport’, which calls for state restraint in sporting matters. Like other transnational legal orders, lex sportiva is often perceived as "anational", existing outside the traditional state-based legal systems.  

The edited volume, “The European Roots of the Lex Sportiva: How Europe Rules Global Sport", by editors Antoine Duval, Alexander Krüger, and Johan Lindholm aims to add nuance to this perception by showing how deeply European law, including national laws as well as the ECHR or European Union law, shapes the transnational regulation and governance of international sports. While lex sportiva claims to be global, this volume shows that it is in practice heavily influenced by European legal traditions.  

Let me start by asking: why have you developed a sweet spot for the field of transnational sports law?

Senior researcher Antoine Duval“Funnily, I started becoming interested in transnational sports law because as a kid I was passionate about a computer game called Football Manager. In that game, there was a moment when they announced the passing of the Bosman ruling. In 1995, this decision of the European Court of Justice not only abolished nationality quotas in European football, but it also challenged the then applicable transfer regulations imposed by UEFA and FIFA. From that moment on, players out of contract could freely change clubs, leaving their former clubs powerless to demand transfer fees or block the move. I had always been wondering about this transfer system, in which football players were being sold and bought. To me, this seemed totally counterintuitive. I mean: in Europe, we had abolished slavery in the 19th century, so, what was going on here?! This really sparked a hunger to learn more and engage with the functioning of this system.”  

Huge questions 
“The role of private actors is an especially fascinating aspect of transnational sports governance. These private actors are putting in place processes that govern the sports world in a very similar way to what states do within their territory. But sports governance does not take place within a territory, it happens within a social sphere of activity.  

“We are thus seeing legal processes emerge outside of the state, within communities that are not necessarily controlled by state authorities. This poses huge questions. How can we hold these private actors and sports associations accountable if they are outside of a democratic process? What role is there for national courts in this regard?  

“So, I think that there is an urgent need to critically engage with this field because, be it sports associations or big multinationals, they are at times governing the way we live. Sports associations define the way we practise and experience sport! I find it essential to engage with those actors and their governance practices, and that's what I have been doing for the last fifteen years.” 

Can you tell us what motivated the research project on the European roots of the Lex Sportiva, and why the new book is important?
“My colleague Johan Lindholm and I had the impression that we were writing a lot about developments in global sports governance, particularly regarding the Olympic Movement, mostly in relation to the intervention of EU institutions. It was our intuition that despite its global reach and its ambition to provide a universal level playing field for international sporting competitions, the lex sportiva is primarily embedded in legal institutions which are originally European in social, cultural, and geographical terms. So, we asked the question: ‘How much of this global sports governance is actually European?’  

“In the book, we have mapped how strongly Europe still has a grip on global sports governance and regulation. This not only includes European Union (EU) law and European human rights law, but also European private law, particularly Swiss law. Regarding the latter, I tried to show in my chapter how Swiss law played a decisive role in shaping the private governance institutions and processes of the lex sportiva. Lex sportiva might seem autonomous, but in practice, it operates as it does only because it is strongly backed by Swiss institutions.” 

What are you hoping to see this publication spark in the future? 
“The main aim of the book was to map how Eurocentricity played out in a variety of contexts. We show how European processes, norms, and discourses are fundamental to how international sports are governed (and how this governance is challenged). But we also had hoped to steer the field towards a more critical approach to this Eurocentricity. European laws are travelling the world on the back of the lex sportiva, shaping the way non-Europeans experience sports. This raises difficult questions linked to the legitimacy of such ‘legal imperialism through the back door’ or ‘soft legal colonialism'.  

“Our ambition was not to tackle this head-on in this book, as this would deserve a separate volume with a much more diverse group of contributors. But we do hope that this project triggers an interest in these issues. Ultimately, we are hoping to spark further critical research, and we also hope that more researchers will look at how European dominance has, to some extent, enabled the concentration of both power and resources in the hands of mostly European institutions, which are not necessarily representative of the entire constituency they affect.  

“Seen from a more policy-oriented perspective, we aim for readers to start thinking about ways to decentralise the way sports is governed. How can we guarantee that European decision-making considers the voices of people affected by these processes, even if they lack political clout in Switzerland or legal standing before the European Court of Justice?” 

Why do you think that this is particularly relevant at this moment? 
“I think that these days, as scholars of international and European law, we are increasingly engaging in critical thinking over the power structures and biases of our discipline. Personally, I have been influenced by scholarship stemming from Third World Approaches to International Law (TWAIL) and its crucial work in pointing out the blind spots of our (western European) way of seeing, describing and embracing international/transnational law. I believe this lens deserves to be applied as well to the realm of transnational sports law and I hope this book will contribute to encouraging others to do so.”  

Read the full publication (open access) 

About Antoine Duval  
Senior researcher Dr Antoine Duval LL.M coordinates the Asser Institute research strand ‘Transnational public interests: constituting public interest beyond and below the state’. Antoine is the founder and editor-in-chief of the Asser Institute’s International Sports Law Blog, founder and editor of the Yearbook of International Sports Arbitration, a member of the editorial board of the International Sports Law Journal and International Sports Law book Series of T.M.C. Asser Press. His research focuses on the role of private actors in transnational law, using the lex sportiva as his main case study. 

Read more 
Transnational Sports Law: the living Lex Sportiva 
In this chapter, Antoine Duval traces the emergence of a transnational sports law, also known as lex sportiva. He examines lex sportiva both in theory and in action, with the aim of looking beyond the rules and identifying the processes and institutions that characterise the lex sportiva in its daily practice. Read more. 

Time to go public? The need for transparency at the Court of Arbitration for Sport  
In this article, Antoine Duval argues that the Court of Arbitration for Sport must be more transparent, particularly with regard to its hearings and publication of awards. The Court ought to be subject to the same procedural scrutiny as national and international judicial bodies. Read more.  

Seamstress of Transnational Law: How the Court of Arbitration for Sport Weaves the Lex Sportiva
Duval shows that the work of the Court of Arbitration for Sport (CAS) can be compared to that of a seamstress; weaving together legal inputs into awards. In this chapter, Duval argues that the CAS judicial practice is best characterised by assemblage and hybridity. The argument is supported by empirical studies, charting the enmeshment of Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. Read more.  

'Offside? Challenging the Transnational Legality of Israeli Football Activities in the Occupied Palestinian Territories’  
In this chapter, Duval chronicles the failed challenge mounted by some NGOs and the Palestinian Football Association against the legality of the affiliation of football clubs located in the Occupied Palestinian Territories with the Israeli Football Association. This case study aims to assess the opportunities and limits of the business and human rights discourse in the context of economic activities in occupied territories. Read more.  

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Dr Antoine Duval LL.M.