Το αθλητικό δίκαιο έχει τεράστιο ενδιαφέρον και ποικίλα επιμέρους θέματα. Η συγκριτική μελέτη των διαφόρων ρυθμίσεων σε αυτά τα επιμέρους θέματα είναι, θεωρώ, ακόμα πιο ενδιαφέρουσα από ό,τι η περιοριζόμενη σε μια έννομη τάξη μελέτη.
Το ανακάλυψα σχεδόν ...κατά τύχη! Παρά το ότι δεν θα έλεγα ότι είμαι άσχετη με τον χώρο του αθλητισμού, μάλλον το αντίθετο, από μικρή παρακολουθώ τα αθλητικά γεγονότα (και συμμετέχω και λίγο...!). Ονειρευόμουν επίσης, όταν ήμουν μικρή, να ασχοληθώ με τον πρωταθλητισμό, είτε στην κολύμβηση είτε στο μήκος. Όπως καταλαβαίνετε, έμεινα στα όνειρα...!!
Το κείμενο είναι από εισήγησή μου στο 10 διεθνές συνέδριο της International Association of Sports Law, που είχε γίνει στην Αθήνα, το 2004.
http://iasl.org/pages/en.php
Πρόεδρός της είναι ο πολύ δραστήριος Δημήτρης Παναγιωτόπουλος, Αν. Καθηγητής ΕΚΠΑ.
Επίτιμος Πρόεδρος (και Πρόεδρος στο παρελθόν) είναι ο James A.R. Nafziger. Καθηγητής στο Willamette University, College of Law. Σας έχω μιλήσει για τον καταπληκτικό αυτόν άνθρωπο, εξαιρετικό επιστήμονα: είναι και ο Πρόεδρός μας στη ILA Committee on Cultural Heritage Law.
http://iasl.org/pages/en/sports_law_congresses/10th_int_congress.php
Η φωτογραφία είναι από τη συνάντηση της ILA Committee on Cultural Heritage Law στο Νέστβεντ της Δανίας, τον Ιούνιο 2013 - σας έχω μιλήσει στην αρχή για αυτήν.
Comparative
law comments
Elina
Moustaira
Introductory comments
Athletics,
this human activity which, as it is said, takes place somewhere between work
and play (free time)[1],
may concern many aspects of life, of many people, and not of course just those
who in some way participate in the eventual athletic activity, but also of
others.
It is considered that sport
contributes in public health, since participation in it ameliorates physical
condition of a community’s participating members, but also reinforces the
equal, non discriminatory, socialization, by way of group work, discipline and
fair play[2].
Thus justice, absolute equality of conditions and impartiality, constitute the
fundamental principles of athletics[3].
The need to safeguard the above
principles, in the frame of athletic activity, provoked the effort to set
rules, which should regulate this activity and its eventual consequences. Thus,
the institution of athletics was developed and appears already, almost
everywhere, as more or less governed by rules. It presents, as the French
sociologist Georges Vigarello mentions, the myth of a “counter-society”
(contre-société), of a representation originated in society[4].
Besides, as Vigarello rightly says: “Athletics remains one of the first
institutions which is systematically presented as an example: it refers to the
great values of our society, using though on the other hand administrators and
arbitrators specifically formed, in order to render those values respected, it
has recourse to lists of awarded and tables where to record and expose
hierarchies. Hierarchy at this point, is being announced, controlled and
brought forward”[5].
Besides, the fact is often
emphasized that sport constitutes a solid means of promotion of the feeling
that one belongs to a community, of an identity, that is. In the case, thus, of
athletes, members of a national team in international athletic events, their
national identity constitutes a fundamental element[6].
The role of law in athletics
As it is rightly mentioned, the
function and the importance of sport varies according to the cultural frame
inside which it takes place[7] –
besides, according to one opinion, sport itself is a cultural good[8],
or at least it must be made one[9]. And
exactly because it plays different roles in different cultural frames, it is
maintained that it can reproduce power relations.
As far as the issue of the role of
law in sport is concerned, it is observed that its importance is being
constantly accrued. As it very eloquently is pointed out, “the jurification of
sport not only is being tolerated as a real fact, but further more it is set as
a requirement for the formation of its conditions”[10].
Of course, the development of the sports law all over the world, presents an
heterogeneity, and this fact does not come as a surprise.
The observation that comparative
sports law is in infants age and that any comparative study completed by now,
deal only with some specific issues, is
absolutely true[11].
Anyway, one finds out that many sports issues are common for most legal
systems, but also that their regulation by those systems varies[12].
Unfortunately, one more time it is
found out that, again, there are very few comparative law studies concerning
the sports regulations in countries other than those of the “west” world[13].
Principal reason for that fact, remains the scarce accessibility to the legal
systems of those countries, and perhaps also a prejudice about the complete
difference between them and the “west” legal systems. However, the fact that
there are eventually big, fundamental differences between
l egal systems compared in their entirety or in specific
juridical institutions of them, should not obstruct the comparison[14],
since, anyway, the basis should be the “legally important social problem”[15].
That is, by comparing legal systems, according to the “classic” comparative law
one adopts a functional method[16]:
one examines regulations of these legal systems, which regulations have the
same function[17].
By attempting a comparative survey
of the way that the different laws eventually choose to deal with this issue,
the relation that may exist between sports legal order and civil liability, or,
on the contrary, the completely separate regulation of theses issues, one draws
various interesting conclusions.
Sports Legal Order
Very
often, as it is known, the governments of various countries concede to the
athletic governing bodies a kind of legislative competence, as far as sport is
concerned. The state, of course, preserves the right of – bigger or smaller -
intervention to the thus formed sports legal order[18].
Consequently, as it is pointed out, “the athletic activity may be divided in
three parts: the first is regulated exclusively by state legislation, the
second by sports legislation, while the third is regulated by both
legislations”[19].
A frequent aspiration of the
athletic governing bodies is the biggest possible “freedom of movement” in this
legislative ambit and the corresponding restriction of the role of the states’
governments to the simple facilitation of the athletic activities[20].
In some states, the role of the athletic governing bodies in the formation and
institutionalization of sports law is extremely important. This possibility of
self-regulation, by “internalizing” the respective cost, consequently releasing
the state from it, renders the athletic governing bodies, extremely powerful
organizations[21].
A
direct consequence, in cases of biggest freedom of legislation conceded to the
athletic governing bodies, but also of administration of the athletic
activities, is the unwillingness of the [state] courts to judge cases related
to this activity, while the foreseen by the athletic governing bodies
procedures of adjudication are not “exhausted”[22].
Even afterwards, however, in some countries as the USA
In
other countries, notwithstanding the fact that the principle of athletic
governing bodies’ autonomy is largely in force, this autonomy is somewhat
limited[26],
mainly by courts’ decisions. Such is the case of Germany United Kingdom Greece
Interesting
is the issue about whether and how decisions of self-regulatory associations
should be controlled. The stance of the English courts, for example, depends on
where the line between public and private law is drawn, something notoriously
uncertain, as it is mentioned. It is defined with procedural terms and it
is a result of the “confrontation” between the role that such a body plays and
the legal nature of its relations with its members. According to a particularly
interesting opinion, this stance obscures what essentially is the principal
issue, that is: which should be the response of the law when it is confronted
with such mini-systems of collective government[30].
Civil liability in the frame of athletic activities
In many national laws it is
explicitly defined that the exercise of natural and athletic activities
constitutes a person’s right[31] –
something that is not self-evident in countries with a different “mentality”
than that one of the west countries[32].
During and by reason of such activities, it is possible that a damage is
caused, either to the athletes themselves or to persons participating in some
way, directly or indirectly, in an athletic event.
As a rule, these events are
regulated by rules of national legal orders, concerning non-contractual, torts’
liability[33].
In case, besides, of athletic activities with foreign elements (e.g.
international athletic meetings), the applicable law will be determined by the
rule of conflict of laws of the forum in which this issue arises. A rule
followed by many countries’ conflict of laws is that the applicable law to the
torts is lex loci delicti, that is, the law of the place where the
damaging event took place. And, according to the dominating opinion in most
legal systems – but also adopted by the Court of the European Communities –,
this law may be, either the law of the place in which the damaging act (or
omission) was committed or the law of the place in which the damage occurred.
According to one opinion, if the
athletic governing bodies to which has been “conceded” by the countries lesser
or bigger power of autonomous regulation of the issues related with the
athletic activities, had dealt with the issue of tort, then the use of the
torts’ law would have become almost gone by[34].
According to another opinion, somewhat similar to the previous one, maybe that
is what should be done, that is, that torts related to athletics should be
regulated by the sports legal order (national or international)[35].
Is it so, though? Or, rather, would such a choice be opportune, proper?
If we remain in Europe ,
we observe that a basic, constitutive idea of the contemporary European l aws of extra-contractual liability, is the idea
of protection of the individual rights with means supplied by the legal
regulations on torts. As it is noted, recent theoretical analyses “revealed”
the existence of a structural ambiguity as far as the legal foundation of tort
is concerned, that is, whether liability is based on infringement of a legal
duty or on the responsibility for the damage caused. This ambiguity is due to
the fact that initially the aims of the legal regulations on extra-contractual
liability that had been instituted were very different from the contemporary
ideas on just distribution of risks, ideas directly connected with the exercise
of individual rights.
Thus, an ambiguity is presented, as
far as the moral basis of the liability is concerned: It is based, either on
the breach of a legal duty or on the responsibility for causing a concrete
result[36].
Looking specifically at the
countries of common l aw,
where a principal element of the torts is the duty of care and its
eventual breach[37],
theoreticians of law point out a fundamental difference, as far as the analysis
of this term is concerned, between two different opinions: If we say that A has
a duty towards B to be careful not to do the x in some given circumstance,
according to the first opinion, with which the majority of the theoreticians
sides, A does not really has a duty to take care not to do x. Simply, if he/she
negligently does it and thus causes some damage to B, will have the duty to pay
damages to B. According to the second opinion, A has a primary obligation to
take care not to do x. If he/she breaches this obligation and B endures some
damage as a consequence, A will usually have (though, perhaps not) a secondary
obligation to pay damages to B[38].
Of course, these opinions are interesting for the other legal systems too,
besides those of common l aw[39].
Which of the two opinions will be
adopted, has great importance respectively for the decision about whether civil
liability in the frame of athletic life should be regulated by the general law
on torts or by the autonomous sports law. That is, what is probably
determinative about this issue, is to decide whether it is damages (money, in
other words) the most important thing or honoring the owed duty (not to cause
damage to others).
The respective regulations, when
they are legislative, and moreover part of a Code, have a meaning that is
someway “connected” to the other provisions, since a Code, as a rule, is
distinguished (or should be distinguished) for its internal cohesion and
consistency. When developments demand (legislative too) reforms, the latter are
being undertaken even in the frame of Codes – of course, in that case, more
difficultly, since the above mentioned, internal cohesion of a Code obstructs the
fragmentary reform[40].
Obviously, the role of judges, of jurisprudence (case-law), is very important.
And in the countries of common l aw,
which have established and explained in case law some of the terms which are in
force in some sections of law, as the one of extra-contractual liability, one
does not doubt at all the importance of the judicial interpretation of terms
and eventually of legislative provisions.
Conclusion
If civil liability in the sports
field, keeps on being regulated by national laws, there will be differences[41].
And, why not? Variegation, variety of regulations, except of difficulties that
legal practitioners face at times, offers
a scientific richness, which mirrors the various societies, since law
constitutes the regulation of people’s life in society.
The aim of unification of laws has
been restricted, in the majority of cases, to the less ambitious aim of
harmonization. In both cases, though, it takes place, either from the beginning
in regional level, or, as a result, between certainly less that the whole of
the countries of the world. Consequently, there will always be differences; in
the latter case, between the unified law and some other laws, of national
origin.
Obviously, one can make observations
of this kind, in the sports field too, in which many people maintain the
necessity, on the one hand of creation of an international uniform lex
sportiva[42],
which will cover, if possible, all issues concerning athletic activities, even
issues of civil liability, which arise in the frame of this activity, and on
the other hand of adoption of this lex sportiva by as many countries as
possible, in order that the regulations be similar, wherever an issue related
to athletic activities arises.
In European Union, one observes an
augmentation of uniform regulations that member states must adopt.
Nevertheless, there has not been proposed, till today at least, a harmonization
of the law of extra-contractual liability, specifically for the sports field.
But why should a specific, uniform
regulation of the civil liability in the sports field be considered as
necessary? Why should the admittedly huge economic interests of this field[43]
lead to indifference for the variety of juridical aspects, essentially to
indifference for the human being and the way of thinking and understanding the
world? But also, how is it possible to demand that the state remains
indifferent as far as the regulation of these issues is concerned, just because
they concern another society, the athletic “counter-society”, as we mentioned
at the beginning? The declaration of Vigarello: “is it not a duty of the
citizens’ society to undertake and control, as well as possible, a
counter-society which has been born in it?”, should we perhaps extend and
maintain that, the state may concede a lesser or a bigger autonomy to the
governing athletic bodies, does not permit, though, that important, non
negotiable, issues of competence[44],
as this one of the civil liability, are extracted by it?
* Εισήγηση στο 10ο διεθνές αθλητικό
συνέδριο στην Αθήνα, Νοέμβριος 2004, της International Association of Sports Law. Δημοσιεύθηκε στη νομική
επιθεώρηση Lex sportiva, 2005 (το αγγλικο κείμενο) και στον Τόμο με τις
εισηγήσεις του Συνεδρίου, Αθήνα – Κομοτηνή 2006 (η ελληνική μετάφραση).
[2] R.
Craufurd Smith/B. Böttcher, Football and Fundamental
Rights: Regulating Access to Major Sporting Events on Television, Eur.Pub.L.
2002, 111-112.
[3] B.
Agozino,
Penal Discourse and the Ethic of Collective Responsibility in Sports Law, Int’l
J.Sociol.L. 24 (1996) 171, mentions that, the juridical regulations of
football are characterized by elements resembling to the investigation l ed by the French penal judge, while they do not
resemble at all to the ideal of the gladiators’ fight, between formally equal
parties, which is taking place before the English judge. He points out that
both traditions constitute variations of the Enlightenment’s ideas, on the need
to rationalize the law and to abandon the arbitrary and pre-modernist exaggerations while governing the social
behaviour.
[9] K. Watanabe, Interpreting
Sports with Modern Viewpoint – Sports Law or Norm in the 21st
century, in: Sports Law [Lex Sportiva], 83, 93.
[15] F.
Doris, The
micro-comparative legal research and its utility in the interpretation
of the Greek private law [in Greek], Nomiko Vima 31 (1983) 77.
[16] About
the comparative law as a functional method, see E. Moustaira, Milestones
in the course of comparative law. Thesis and antithesis [in Greek],
221-224.
[18] A
unique phenomenon of state interventionism in west European states, Greece,
according to A. Malatos, Judicial control of disciplinary authority in
sports, Epitheorissi Athletikou Dikaiou 1992, 373, 374.
[19] A.
Malatos,
Introduction to sports law: Sports legal order, Epitheorissi Athletikou
Dikaiou 1992, 175, 187.
[20] T. Kerr, Freedom
of movement in Sport inside and outside the European Union, in: Freizügigkeit
im Europäsichen Sport, Zürich 2002, 17-18.
[22] On
the one hand, the sports governing bodies aim at the exclusivity of the
specifically foreseen for sports, arbitral procedures, while on the other hand,
the athletes, prefer to have recourse to the state courts, preferably of the
state, of which they are nationals, see B. Heß,
Hochleistungssportler zwischen internationaler Verbandsmacht und nationaler
Gerichtsbarkeit, ZZPInt 1996, 371, 372.
[23] J.A.R.
Nafziger, Comments on Applying International Sports Law in the
United States, Int.Sports L.J. 2002/3, 9, who say that the central roles
of the International Olympic Committee, of the International Sports
Federations, of the International Athletic Court, but also of the other Non
Governmental Organizations in the sports field, is almost so important as the
role of the International Committee of the Red Cross, while applying
humanitarian l aw.
[24] About this
clause, which constitutes the only source of personal jurisdiction of the USA
courts, see E. Moustaira, Forum Non Conveniens, 21, where it is
pointed out that innate notions of this clause are fundamental fairness
and individual liberty.
[25] About this
clause, which says that no state has the right to deny to a person subject to
its jurisdiction, equal protection of laws, see E. Moustaira, Equality of creditors, 26.
[26] K. Vieweg,
Basic Freedoms and Autonomy in Sport – from the Perspective of German and
European Law, in: Sports Law [Lex Sportiva], 285, 286, believs
that today this autonomy and the consequent priority over national law, is an
anachronism, especially in view of the limitations that European l aw may set.
[28] S.
Boyes, The
Regulation of Sport and the Impact of the Human Rights Act 1998, Eur.Pub.L.
2000, 517-518.
[32] For
example in China, where the development of the athletic movement has been
directly influenced by political developments, neither the athletes’ rights for
impartial rules of choice are concretely defined, nor an obligation to
reinstate in case that justice’s principles are breached, is explicitly
recognised, see S. Huang, The Practice of China’s Sports Law, in:
Sports Law [Lex Sportiva], 116; J.A.R. Nafziger/W. Li, China’s
Sports Law, 46 A.J.C.L. 453-454 (1998).
[33] About
French law, see J. Gatsi, Le droit du sport,
49-50. As far as the English law is concerned, it is observed that,
specifically in cases of injury in the frame of an athletic activity, it is
constantly evaluated, see M. James, Sports Torts and the Development of
Negligence in England, Int.Sports L.J. 2003/2, 17, 19, who points out
that an issue, which is not yet adequately studied, but with which in the future
jurists will have to deal with, is whether an injured player of a football team m ay sue his team for eventually having forced him
to play while he was injured.
[35] L. Silance, Les
sports et le droit, 199 ff. Referring specifically to the civil liability
of persons participating in athletic activities, concerning the relations
between them, he considers that the fact that the regulations set by the
athletic governing bodies do not mention civil liability, may constitute a
regulatory vacuum. He points out that the only thing that is foreseen in some
cases, is damages, through a system of insurances, of the costs incurred for
injuries caused during a play, without searching for responsibility, not even
culpability (p. 205).
[36] N.
Jansen,
Duties and Rights in Negligence: A Comparative and Historical Perspective on
the European Law of Extracontractual Liability, Oxford J.Leg.Stud. 2004,
443.
[37] J.T.
Gray,
Sports Officials and the Law, Int.Sports L.J. 2002/3, 11, refers
specifically to the tortuous liability of officials, organisers of athletic
activities, towards parsons participating in those, according to the law of
USA, pointing out that, whether a sports official breaches the duty of care
that he owes to the persons participating in an athletic competition,
constitutes an issue of the usual care, based on the reasonable official
standard. Moreover, in a suit filed by the person who was harmed, in order that liability is attributed
to the “negligent” official, it will have to be proved that this lack of usual
care was the proximate cause of the plaintiff’s harm. A rule usually
applied, is the one of the but for: But for the negligence of the
official, the harm would not have been incurred.
[38] N.J.
McBride,
Duties of Care – Do they Really Exist? Oxford J.Leg.Stud. 2004, 417-419.
He calls the first view on duty of care, cynical view and those who
adopt it, cynics, and the second one, idealistic view, and those
who adopt it, idealists.
[39] In
South Africa, the legal system of which is considered as a mixed one, that is,
influenced by both common l aw
and civil law, the duty of care is not defined by the Proximity Test
of the cause, as is the case in the genuine legal systems of common l aw, but on the contrary has been established
on the basis of the Roman l aw’s
principle lex Aquilia on culpa, see A.P. Agbonjinmi, Legal Basis
for Coaches Liability in Sport and Recreation, in: Sports Law [Lex
Sportiva], 187, 191. About the mixed legal systems, see E. Moustaira,
Milestones in the course of Comparative Law, 113 ff, and specifically
about South Africa’s legal system, see E. Moustaira, Comparative Law.
University Courses, 84-89.
[41] About
the fact that, in disputes arisen during international athletic events,
national laws and international law, which are eventually considered as at the
same time applicable, might not be compatible with each other, see D.
Sturzaker/K. Godhard, The Olympic Legal Legacy, Melb.J.Int’l L.
2001, 241, 248.
[42] T.
Summerer,
Internationales Sportrecht – eine dritte Rechtsordnung?, in: Festschrift
für H. Hanisch, 267, 279, denies its existence, saying that the regulations
of the international sports organizations do not create
none authentic legal order, being only a private associations’ law, following
concession by the state.
[43] Exactly
these big economic interests, which are dominating the high level contemporary
athletics, do not permit anymore immunity of the athletic governing bodies,
according to M. Coccia, La risoluzione dei conflitti nellàambito
sportio, Jusport. El Web Juridico del Deporte.
[44] Given
the fact that the aim served by sports is a public one. See D.
Panagiotopoulos, Sports legal order in national and international sports
life, in: Sports legal order. Negative phenomena in sports and
sports deontology, 41, 50.
Μου επιτρέπετε...!! Ο μέγας Rafael Nadal! Του έχω μεγάλη αδυναμία!
Πάντα μου άρεσε πολύ το τέννις και το παρακολουθούσα, αλλά με αυτόν και την πορεία του έχω ένα ιδιαίτερο δέσιμο, διότι μου θυμίζει το πόσο με "παρηγορούσε" να τον βλέπω στους αγώνες του, την πρώτη φορά που κέρδισε το Roland Garros, το 2005. Πριν δυο μήνες είχα χειρουργηθεί πάλι στο χέρι (ήταν η "χειρότερη", πλέον επώδυνη - τριπλή... - χειρουργική επέμβαση που έχω περάσει με αυτό το θέμα) και είχε αρχίσει το τετράμηνο ...κολαστήριο (δυστυχώς κυριολεκτώ) της φυσικοθεραπείας, όπου πήγαινα κάθε μέρα, δύο ώρες απίστευτου πόνου, προκειμένου το τσιμέντο να γίνει χέρι. Και πολλές μέρες, μετά από εκεί (ήταν στην Ιπποκράτους) πήγαινα για μάθημα, σε προπτυχιακούς ή μεταπτυχιακούς. Παρά το ότι γενικά "αντέχω" στον πόνο, παραλύω και μόνο που το θυμάμαι αυτό. Οπότε, όπως καταλαβαίνετε, το να παρακολουθώ τους αγώνες και να ..αγωνιώ για τον Nadal ήταν το καλύτερό μου φάρμακο!! Έκτοτε, δεν έχω χάσει αγώνα του στην τηλεόραση! Επίσης διαβάζω όλα τα σχετικά με αυτόν στην El País - σωστή groupie, δηλαδή! Η φωτογραφία του αυτή είναι από τη νίκη του φέτος, στο Roland Garros.
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