Correlation of the lex sportiva and the sports law

The article is devoted to the study of the possible regulation of relations related to sports at the legislative level. We have studied the various points of view of various scholars regarding terms such as «sports law» and «lex sportiva». In addition, first of all, we needed to get acquainted with the question of the legal nature of lex sportiva. We conducted an analysis, which was the purpose of this article-to identify the similarities and differences between sports law and lex sportiva, as well as the influence of these two institutions on each other and their further joint development.

Keywords: legal regulation of sport, normative regulations in the field of sports, sports law, lex sportiva, sports, lex mercatoria.

«Public relations in the field of sports and, in particular, sports activity, is a whole world in the center of which the rule rules», wrote the French researcher Gerald Simon [1, p. 5]. The nature and structure of this «rule that rules the world of sports» is insufficiently studied. The system of regulation in the field of sports includes two large and independent segments, complexes:

1) sports law-a set of legal regulations in the field of sports;

2) «lex sportiva» — a complex of other (besides legal) regulatory regulation (other names — self-regulation of relations in the field of sports by sports subjects, local-corporate regulation in the field of sports, etc.) [2, p. 39].

As for sports law, there are at least three positions in Russian legal science today regarding the legal possibility and validity of distinguishing sports law as an independent complex branch of law:

1) the position that completely excludes the allocation of any new (in addition to the so-called «classic») branches of law;

2) the position justifying the legal possibility of allocating new complex branches of law, such as medical law, sports law, educational law, etc.;

3) the position according to which the division into branches of law has outlived its time, and today we should already talk about the directions of legal regulation.

The idea of the validity of the allocation of lex sportiva is not generally accepted [3, p. 119]. A number of experts generally deny the validity of allocating a separate lex sportiva system.

The most detailed definition of lex sportiva through the description of its structure is proposed by Antonio Rigozzi: «Lex sportiva is a complex and coherent complex of systems of material and procedural non-legal norms, including General (at the international and national levels) and special (grouped by sports) parts and consisting of:

— a system of acts of «soft international law» in the field of sports — documents of international (global and regional) non-governmental (non-governmental non-profit) organizations in the field of sport, their agreements with interstate organizations, States and among themselves, political and Advisory documents of global or regional international conferences on sport;

— sets of documents of national (within specific countries) non-legal sports regulation-acts and corporate norms of self-regulating and other organizations in the field of sports and sports associations (regulations, codes, rules, agreements, charters), as well as customs (unwritten rules)» [5, p. 12–13].

The lex sportiva rules do not have binding legal force, but they have a certain regulatory force and are mandatory for compliance or performance by participants in sports relations under the threat of adverse consequences and sanctions against them in the framework of the system of public relations regulated by lex sportiva, the passage of which is mandatory and justified by the respective obligations assumed by these participants when entering the subject area of lex sportiva regulation [6].

The issue of interaction between sports law and lex sportiva requires detailed research. This interaction has a very complex structure and very ambiguous features. Many scholars have argued for the essential incorporation of lex mercatoria into the common law and the harmonization of these two systems today, lex sportiva in many countries interacts in a complex way with the state — sanctioned set of legal regulations in the field of sports — sports law [7].

Situations of harm to the health of an athlete are excluded from the criminal law, which is not directly legislated anywhere, but is recognized by the state by default [8, p. 32].

In general, any injury to the health of an athlete during sports training and competitions (during a hockey, baseball or football game, during gymnasts’ performances, etc.), if we exclude lex sportiva, should be considered either a criminal offense or an industrial injury, but is not considered. It is not possible to reduce all the harm to the health of athletes during sports competitions or training solely to their «amateur activity» at their own risk [9]. Because the specifics of sports are such that the risk of this harm objectively exists and tends to increase and become more complex as the sport develops.

We also find that specific punishments in sports that stem from the lex sportiva are completely illogical and incorrect from the point of view of public law, that is, state-sanctioned Law [10, p. 13]. If we ignore the priority value of lex sportiva for a certain range of relations, then, for example, the disqualification of an athlete (as a measure of disciplinary responsibility, for example, for violence against an opponent) should be qualified as a gross violation of his constitutional rights (to play sports, to work, etc.), and on the contrary-the question arises on what basis the athlete is removed from the sanctions of criminal or administrative legislation in this situation [11].

An example of the interaction of sports law and lex sportiva is a sports contract. The sports contract in the Labor code of the Russian Federation (CH. 54.1) is a fact of the implementation of lex sportiva in the Russian national law that has already taken place [12]. There are many more examples. It is not by chance that clause 3 of article 3 of the Federal law «on physical culture and sport in the Russian Federation» of 04.12.2007 (with the following as one of the main principles of the legislation of the Russian Federation on physical culture and sport, it establishes the principle of «combining state regulation of relations in the field of physical culture and sport with self-regulation of such relations by subjects of physical culture and sport». The above examples had one goal-to show that ignoring or denying the widespread practice of interpenetration of sports law and lex sportiva is not only meaningless, since it is a daily occurrence, given the extent of interest in sports throughout modern social life, but also acts as a factor in preventing the normal development of sports life [13].

References:

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11. Latty F. La lex sportiva: recherche sur le droit transnational / Préface de Jacques Rogge, avant-propos d’Alain Pellet // Boston: Martinus Nijhoff Publishers, 2007.
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