I.S.L.R. Pandektis Vol.14, 1-2 (2022)

I Articles

SOME CONSIDERATIONS ABOUT SPORTS AS
INTRINSICALLY ETHICAL ACTIVITY

 

Anna Di Giandomenico
Professor (Asst.) Ph.D. and Law Philosophy Researcher at the University of Teramo, Italy

Abstract: Almost all scholars depict sport as an activity, characterized by an intrinsic ethical feature. This distinctive feature gives rise to some issues, both in international and/or state legal systems and in sports legal systems. The first ones highlight the value of fair play, considering it as the true pillar upon which structuring sport. An in-depth analysis shows some issues. What is fair play in a state and/or international legal system?

Is it the mere respect of state and/or international norms on sport? Is it more? In the first case, what is the true difference between fair play in sport and the obligation to respect legal norms? In the second case, how can we introduce such “more” in a state and/or international legal system? How can we rule such “more”? Sports legal systems establish themselves as ethical legal systems, because of their Grundnorm, namely the ensuring of fair competition. Thus, they structure and organize themselves in order to ensure compliance with this single absolute principle, up to the recession of the protection of individual rights. However, some issues arise when we consider the unavoidable overlap of regulatory competencies between these different legal systems is considered. Which of them prevails?

Summary: 1. Introduction 2. The Ethical Nature Of Sport Within Sports Legal Systems. 2.1 What Is The Founding Value Of Sport? 2.2 Issues. 3. Sport Within State And/Or International Legal Systems. 3.1 Sport And State Legal Systems 3.2 Legal Issues. 4. Further Issues 5. Conclusion.

Keywords: Fair Play Principle; Fair Competition Principle; State Legal Systems; Sports Legal Systems

 

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PROTECTING HUMAN RIGHTS, COMPETITIVE EQUITY,
AND SPORTS INTEGRITY  IN BINARY
ATHLETIC COMPETITION IN A NONBINARY WORLD


Matthew J. Mitten

Professor of Law and Executive Director, National Sports Law Institute, Marquette
University Law School; Arbitrator, Court of Arbitration for Sport, USA

Kristina Frkovic

Third Year Law Student, Research Assistant, Marquette University Law School
(Class of May 2022),USA


Abstract: This article describes the history and evolution of the International Olympic Committee (IOC) guidelines and International Federation (IF) rules regarding the eligibility of female athletes with sex variations and transgender female athletes to participate in sports at the international and Olympic levels. In doing so, this article discusses the Chand and Semenya Court of Arbitration for Sport (CAS) decisions, which demonstrate a balancing of human rights and competitive equity in sport. This article discusses the 2021 “IOC Framework on Fairness, Inclusion, and Non-Discrimination on the Basis of Gender Identity and Sex Variations” and recommends that a combination of the IOC Framework and tripartite Chand/Semenya CAS legal framework should be used moving forward, as it appropriately balances an athlete’s human rights with preserving the competitive equity of sport. Lastly, this article discusses eligibility rules for female athletes with sex variations and transgender female athletes from a U.S. perspective, including how they are used in Olympic sports, professional sports, college sports, and high school sports.

Keywords: gender, transgender, sport, Olympics, CAS, IOC, human rights, competitive equity.

 

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THE DEVELOPMENT AND EVOLUTION OF THE COURT OF ARBITRATION FOR SPORT AND THE

CODE OF SPORTS-RELATED ARBITRATION

Huiying Xiang

Associate Professor, Shanghai University of Political Science and Law and v. Director at Sports Law Institute, China

 

Abstract: The Court of Arbitration for Sport is the authoritative institution for the settlement of international sports disputes. After nearly 40 years of development, it has become a veritable "Sports Supreme Court". Its procedural rules have been revised many times and have become increasingly mature and perfect. This paper will analyze its general development and the development of the Code of Sports-related Arbitration, and explore the general principles of CAS development.

Keewords: Court , Arbitration , Sport jurisdiction, development, protection

 

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 THE LEGAL NATURE OF THE PROFESSIONAL PLAYER’S CONTRACT IN LIGHT OF THE FRENCH
AND KUWAITI LAWS

 

Adel BAHBHANI
Delegate Professor of Civil Law, Kuwait University, Kuwait

 

Abstract: Not only do countries around the world view sports as a means of entertainment,

recreation, and physical health, but they also consider sports from an economic, technical, and service point of view; especially since sports has become a profession and an important source of income. This has made it necessary to organize professional sports through legal texts, which have been the subject of legal and judicial controversies in their drafting and interpretation and have caused difficulties in their application.

One of the most important means of organizing and implementing professionalism in sports is through contracts. However, the concept, the effects, and the legal nature of these contracts have generally been a subject of controversy.

This brief research presents the legal nature of the professional player contract, in light of the French and Kuwaiti laws in order to bring to the attention of the researchers the difference between the professional player contract as being either a type of contractor contract or an employment contract. This, in return, will help in identifying the judicial system that is competent to handle the professional player contract disputes.

Keywords: contractor contract, employment contract, professional, characteristics, legal nature, Sports, Arbitration, Competent Court, Athlete, Disputes.

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ATHLETES’ AGREEMENTS/CONTRACTS GREEK LAW AND LEX SPORTIVA (FIFA COVID-19
GUIDELINES & FIFA COVID-19 FAQ) – HALT CASE

 

Dimitrios P. Panagiotopoulos
Professor, National and Kapodistrian University of Athens, Lawyer, Greece

 

Abstract: The provisions of Greek employment law and the Labor Code of Greece could apply to the matter at hand. Greek law should apply as the contract was performed in Greece and the contracting parties were subject to Greek law and the regulations issued by the Hellenic Football Federation.

The COVID-19 Guidelines provide that the parties should first try to find a mutual agreement, preferably on a collective (team or even league) basis, to face the consequences of the financial impact of COVID-19, before they explore the option to possibly unilaterally vary a contract in line with applicable national law or within Collective Bargaining Agreement (CBA) structures. If no agreement can be reached or applicable national law or CBA does not address the situation, a unilateral variation should be analyzed by FIFA’s deciding bodies on a case-by-case basis, subject to certain defined criteria. Alternatively, a suspension of the contract can be explored, provided that proper insurance coverage is maintained, and adequate alternative income support arrangements are in place

 

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CIVIL LIABILITY CAUSED BY THE OUTBREAK OF CORONA
VIRUS IN SP ORTS LAW

 

Yousefi Sadeghloo – Ahmad
Assistant professor of the Islamic Azad University of Science and Research,
Islamic Republic of Iran

Rajabi – Elham
Ph.D. Student in private Law of Islamic Azad University from Tehran, Iran

 

Abstract: The outbreak of the coronavirus is a global crisis, and it is no exaggeration to say that it was one of the strangest events in human life. The corona was the only event that affected most countries and spread widespread fear in the world beyond the fear of terrorism and the economic collapse of governments, the fear that affects different aspects of citizens' life in different countries. The virus was first reported in Wuhan, China in December 2019, and its domain gradually spread throughout the world. Among the effects of this epidemic are the hardening, sterilization and refusal of contractual obligations and various liabilities in the performance of various industries. Sport is also one of the active industries facing sudden changes in the corona pandemic these days because sporting events are not only a major reason for the convention of large groups but also many of these events have commercial and cultural value. Since sports contracts are a special form of contracts, and nevertheless the principle that the parties must always adhere to the provisions of the contract, special conditions are predicted for the removal or reduction, or modification of the contractual liabilities of the parties in the contract, which can be referred to the conditions of force majeure and the description of Cairo force citing Articles 227 and 229 of Iranian Civil Code, and Covid 19 should not be considered as force majeure except in the cases mentioned. It is necessary for sports organizations to solve problems in contracts not only to compensate material damages but also for spiritual, social, and psychological damages to athletes and the world of sports focusing on these special conditions in order to create a justifiable excuse for non-performance of the obligation.

Keywords: civil liability, justified excuses for non-performance of obligations, Cairo force, force majeure

 

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IMPACT OF CORONAVIRUS ON GLOBAL HEALTH
EMERGENCY ON SPORTS LAW

 

Elena Atienza Macías
Lecturer in Constitutional Law, Faculty of Law - Donostia-San Sebastián Campus at the University of Deusto, Spain

Abstract: The emergence of COVID-19 has been spreading around the world at a vertiginous growth rate. The generality of the countries of the world is affected, and the great majority of them have decided to postpone and/or suspend their sporting events.

Without a doubt, the more relevant postponement has been that of the Tokyo 2020 Olympic Games. The economic effects on the sports industry that COVID-19 has involved are extremely high. In this paper, we will analyze the most relevant effects on Sports Law.

Summary. – I. State Of The Art. Ii. Legal Implications Of Sport As A Socio-Economic Sector. Iii. The Postponement Of The Tokyo 2020 Olympic Games And Its Effects. Iv. Conclusions. V. Bibliography.

Keywords: Health Law; Sports Law; Olympic Games

 

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THE INTERVENTION OF PUBLIC ADMINISTRATIONS

IN SPORT: COMPETENCES TO ENSURE THE

IMPACT OF NEW TECHNOLOGIES ON SPORTS

FEDERATIONS

Juan Francisco Rodríguez Ayuso
Associate Professor of Administrative Law, UNED - National University of Distance Education Spain

Abstract: This study aims to highlight the relevance of the figure of the data protection officer established by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR) when it comes to guaranteeing the protection and supervision of personal and private information of athletes that has to be processed by sports federations. In this regard, it is essential to analyze the essential contours of this new figure and how it affects and what effects it has within the Spanish legal system, which must directly implement and complement with internal regulations the postulates of this new community regulation on privacy and personal data protection, by means of Organic Law 3/2018, of 5 December, on Personal Data Protection and guarantee of digital rights or LOPDGDD.

Keywords: sport; sports federations; GDPR; LOPDGDD; personal data; data processing

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SPORTS CRIMINOLOGY

 
Karina Zalcmane
(Dr.)
Professor (Asst), EKA University of Applied Sciences, Latvia

Abstract: Criminology as a branch of science that includes joint research has changed enormously in the past few decades, as we are living in the era of internationalization and digitalization. Zalcmane (2020) considers, that “at the present time, it is characterized by the emergence of new directions (separation) and this characteristic, which has a fundamental meaning, demonstrates the openness of criminology for active collaboration with other sciences”. Hence, the widely known problems and the criminogenic potential of the sports industry, indicate the timeliness and regularity of the scientific identification of the sports criminology.

The chapter aims is to identify and to provide an overview of criminological aspects of the sports industry.

Keywords: sports criminology, crime prevention, criminals in sports

 

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II. Research Papers

GOOD GOVERNANCE IN NATIONAL SPORTS
ORGANIZATIONS: THE NEED FOR THE INTERNAL
DISPUTE RESOLUTION PROCEDURES


Marina Kamenecka - Usova
(PhD)
Assist. Prof., EKA University of Applied Sciences, Latvia

Abstract: One of the latest documents on the EU sports policy based on the values proclaimed in the European Sports Charter, EU White Paper on Sports, and all three EU Working Plans on Sports is the Conclusions of the Council and of the Representatives of the Governments of the Member States meeting within the Council on promoting the common values of the EU through sport (2018/C 196/06) that, among other policies, (1) address an invitation to take an action in implementing the common European sport values to three addressees: the Member States, European Commission, and Sports Movement; (2) asks the Member States to encourage and, where possible, support sport organizations in strengthening good governance, within their organizations and, where appropriate, address these values in their ethical guidelines or equivalent documents.

According to the Author, this document indicates that in the European Union, sport is, first of all, considered to be an instrument to promote shared values throughout the union, and, secondly, it indicates that the common sport's values are to be established in the EU. Confirmation of this is also found in the following EU sports policies: Sport and Integrity, Sport and Economy, Sport and Society. The author supposes that compliance with these guidelines on the national level will contribute to the development of internal dispute resolution procedures within the sports organizations in Latvia undoubtedly contributing to the good governance in national sports organizations. Good governance in sports organizations, in its turn, is an illustrative and obvious asset to sports society and the sports industry at all levels.

The article aims to provide an overview of EU recommendations regarding good governance in national sports organizations and its correlation with internal dispute resolution procedures.

Keywords: good governance, internal dispute resolution, sports organizations

 

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SPORTS ACTIVITIES AS A LEVER FOR TOURISM
DEVELOPMENT - COMPARATIVE STUDY 2016-2022


Panagiotis Panagiotopoulos

Candidate Dr. Harokopio University,
Department of Economics and Sustainable Development, Greece

Roido Mitoula
Professor, Harokopio University,
Department of Economics and Sustainable Development, Greece

Evangelia Georgitsogianni
Professor, Harokopio University,
Department of Economics and Sustainable Development, Greece

Eleni Theodoropoulou
Professor, Harokopio University, Department of Economics and Sustainable Development, Greece


Abstract:
Sports activities and sporting events are of major importance for the development of the tourist product of a tourist destination as well as for the wider development of this place.

This paper presents the results of empirical research through a specially designed questionnaire in the context of the doctoral dissertation entitled "The contribution of sport to sustainable regional development". Respondents' answers are compared before and after the COVID-19 pandemic. SPSS program was used for statistical analysis as well as extracting conclusions and correlations.

The purpose of the research is to study the behavior of tourists and whether they are satisfied and to what extent by the sporting services during their travels or not. Also, the purpose of the research is to investigate if sport and sports tourism contribute to sustainable tourism development and to what extent.

Questions are therefore answered as to whether there is interest in sporting activity during tourism, and if so to what extent. Also, what kind of sporting activity is the one that attracts the most tourism to an area, as well as whether tourists would be willing to pay extra money to have sports events or activities at their disposal. How motivating are sports and sporting events to visit a place? What percentage of time do sports activities take up compared to other basic activities during the tourist's trip?

The research shows that there are no significant differences in the behaviors of tourists before and after the pandemic. A person’s involvement with sports activities during tourism does not show a significant correlation with the involvement or not in his daily life. Also, sporting events and activities, in general, are a big part of the tourist activity as it is also found that constitutes an important element for visiting a destination.

It can be safely concluded that tourism and sports are nowadays interrelated concepts that affect each other's results to a large extent, having a two-way relationship.

Keywords: Sports, Tourism, Sporting activity, tourism development, sustainability

 

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THE ROLE OF UNESCO IN SUPPORTING THE RIGHTS
OF CHILDREN IN THE PRACTICE OF PHYSICAL
EDUCATION IN ALGERIA (MINEPS: 1976-2013)


Nassereddine Kesri

Professor (Sports Management), Department of Sports Administration and
Management, University of Algiers, Algeria

Abstract: After World War II, the international community confirmed that the world's childhood is at risk and must be protected; the Declaration of the Rights of the Child of November 20, 1959. It was the basis of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations 30 years later, on November 20, 1989.

The Convention on the rights of the child entered into force on 2 September 1990. The child will benefit from special protection and will allow him to develop physically, mentally, morally, spiritually and socially; the International Charter for Physical Education, based on the rights to declare that "the practice of physical education and sport is a fundamental right for all. UNESCO has assumed the task of monitoring the commitment of States and Governments through the creation of the International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport (MINEPS). Algeria joined UNESCO on October 15, 1962; it is committed to UNESCO regulations, including the right of the child to practice physical education and to ensure their implementation by examining the Primary school reality, our study concluded that there is complacency in the application of national and international law related to the practice of physical education in primary schools.

Keywords: Physical Education, Child Rights, International Law, UNESCO (MINEPS).

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SPORTS FOR ALL, THE RIGHT OF THE PERSONAL
DEVELOPMENT AND PHYSICAL EXERCISE


Vassilios Ath. Oikonomou

Dr. of Sports Law, University of Peloponnese, Lawyer, Greece

Abstract: The term individual utilization through physical exercise through participation in sports activity is new and aims to start the discussion on this topic by enriching this term with various aspects that contribute in this direction. What could define the phrase individual utilization through mainly physical activity? This can be answered by many kinds of research from which we can draw many elements such as physical activity - recreation of the individual with the aim of a good psychological state on a permanent basis, sociability, formation of personal individual relationships, and body image commensurate with social status, ensuring individual physical condition and personal health in pursuit of higher goals, where extremely greater strength and endurance is required both physically and mentally, as well as the emitted radiation, individual prestige, are elements that can constitute individual utilization through physical exercise. A kind of education through the body by ensuring the healthy condition of this, the members and the psycho-physical condition of the individual with the not only individual but also social and public benefits.

Keywords: physical activity, physical exercise, sociability, personal health, personal right.

 

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THE PROTECTION OF INTERSEX AND TRANSGENDER ATHLETES FROM DISCRIMINATION
UNDER THE EUROPEAN CONVENTION ON HUMAN
RIGHTS

 

Tsubasa Shinohara
Ph.D. Candidate, University of Lausanne, Switzerland

Abstract: After the hearing of the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT), some athletes brought their complaints against their decisions before the European Court of Human Rights (ECtHR). In Mutu and Pechstein case, the ECtHR held that there was a violation of Article 6 (1) of the European Convention on Human Rights (ECHR) on the ground that the CAS held no public hearing. This judgment played a significant role in opening a door for athletes to have access to the ECtHR.

However, the ECHR does not impose any legal obligations on sports governing bodies, but on state parties, because they are private entities established by national private law. In this context, it is worth noting that state parties must implement positive obligations under the ECHR to protect athletes from human rights violations caused by no state actors under the ECtHR’s jurisprudence. In other words, the ECHR may indirectly apply to the private relationship between non-state actors. In this situation, how can athletes argue a violation of their human rights due to discriminatory measures based on their gender identity and sex characteristics before the ECtHR? To answer this question, this article will consider whether sporting regulations applicable to intersex and transgender athletes are compatible with Article 14 of the ECHR. Through this research, it may serve to identify the possibility that the athletes may bring their complaints under Article 14 of the ECHR before the ECtHR.

Keywords: Article 14 of the ECHR, discrimination, gender identity, sex characteristics, human rights, positive obligations, intersex and transgender athletes