Lex Sportiva: Understanding the Transnational Nature of the Law of Sports

In last month’s newsletter, we discussed the role of arbitration in sports law and how bodies such as the Court of Arbitration for Sport (CAS) have departed from one of the key features of arbitration – confidentiality – by providing for the default publication of appeal awards. In this way, CAS has promoted the transparency, consistency and legitimacy of its adjudication processes.

At the same time, the decision to publish CAS awards has also contributed to the development of a self-contained body of sports law and general principles, which operate beyond national boundaries. This is called “lex sportiva” (Latin for “law of sports”) and is the focus of this article.

🙇‍♂️ How Does “Lex Sportiva” Differ From Domestic Sports Law?

For many years, scholars questioned whether sport truly warranted its own legal field. The traditional view was that “sports law” merely referred to the application of established public and private law principles (e.g. in contract, tort, employment, human rights and competition law) to the sporting context, based on the domestic legal framework of a particular country. This meant, for instance, that UK courts and tribunals would resolve sports disputes by applying English law principles to such disputes, just as they would in any other sector.

However, as sports have become more commercialised and globalised, the legal and financial stakes have also grown significantly. In response, most sports governing bodies (SGBs) have developed their own codes of conduct, disciplinary regulations and dedicated mechanisms for dispute resolution. These systems are often transnational in scope and many are enforced through arbitration, typically culminating in appeals to CAS. As a result, there is now widespread recognition that sport has evolved into a specialised area of legal practice. This has led to the emergence of lex sportiva as a distinct body of law, one that is grounded in the regulatory frameworks established by SGBs.

Unlike domestic sports law, lex sportiva largely operates outside the confines of state legal systems (partly due to the “sporting exception”, which we covered in last month’s newsletter). Lex sportiva is based on private agreements between athletes, clubs and SGBs. Its authority derives from contractual consent, although this consent is often non-negotiable for those seeking to participate in sports. National courts play a limited role, intervening only in exceptional circumstances such as procedural irregularities or violations of public policy in the rendering of an award or decision. Instead, the emphasis is on consistency and global uniformity, with CAS acting as the final adjudicative body for many international sports disputes.

🤔 How Does It Work In Practice?

Lex sportiva operates through a hierarchical “sporting pyramid”: athletes contract with clubs, clubs are affiliated to national federations, and those federations belong to continental or international governing bodies. Each level incorporates the rules above it and through this chain, parties are bound – directly or indirectly – to the dispute resolution rules of international governing bodies, including arbitration clauses that often culminate in appeals to CAS.

Although CAS does not operate under a formal doctrine of precedent, its panels frequently reference earlier CAS decisions. Over time, this has led to the development of a body of jurisprudence that, while not legally binding, is highly persuasive. This reliance on prior awards facilitates predictability and consistency in the resolution of sports disputes. In effect, a “soft” precedent system has emerged that has contributed to the development of general principles within lex sportiva.

As the system is contractual in nature, its enforceability and legitimacy derive from the consent of the parties. However, this consent is often implicit or compulsory: participation in most sports competitions requires athletes and other stakeholders to accept the rules of the relevant SGB, including its dispute resolution procedures and – in many cases – the ultimate authority of CAS to hear appeals (although not all sports regulations allow for this e.g. the English Premier League’s Handbook currently does not include the option to appeal arbitration awards to CAS).

📑 The Publication Issue

For any legal system that aspires to uphold the rule of law, decisions must be accessible. In the context of lex sportiva, this means publishing disciplinary and arbitral decisions in a consistent and transparent manner. While CAS has taken steps in this direction (e.g. Rule 59 of the CAS Code presumes publication of awards unless both parties opt out), practices among SGBs remain varied and often inconsistent.

The publication of disciplinary and arbitral decisions serves several important purposes:

1. It allows for the development of precedent. Access to prior awards enables parties (including athletes, clubs and SGBs) to anticipate how rules are likely to be interpreted and prepare accordingly. This fosters legal certainty and avoids the scope for arbitrary decision-making.

2. Public scrutiny acts as a safeguard against bias and procedural injustice. When decision-makers know that their decisions may be subject to external review, they are more likely to act transparently and provide adequate reasons for their conclusions, to avoid creating an appearance of bias. This is especially important in high-stakes sports disputes that leave a lasting impact on reputations, careers and access to competition.

3. Publication contributes to coherence and consistency across the sporting world. In a globalised sporting environment where the same rules apply across jurisdictions, access to prior decisions ensures that similar cases are treated in substantially the same way, regardless of geography. This supports the integrity of the regulatory framework and helps to avoid fragmentation in the application of rules.

4. Public access to decisions reinforces the accountability of sporting institutions and builds trust among athletes, supporters and the wider public.

Despite the importance of publication, many SGBs continue to allow parties and/or decision-makers to object to the publication of disciplinary and arbitral decisions. Greater consistency is therefore needed to ensure that lex sportiva can keep developing in a transparent and predictable manner.

🔮 Looking ahead

Efforts to enhance the development of lex sportiva are ongoing. Proposed reforms include more systematic digital archiving of decisions and greater use of open hearings in matters of public interest.

An example is provided by the England and Wales Cricket Board (ECB), whose Disciplinary Procedure Regulations allow hearings to be held in public where parties agree or where a panel orders it in the public interest. This provision was used in the ECB’s high-profile racism proceedings involving Azeem Rafiq and Yorkshire County Cricket Club, where the Independent Cricket Disciplinary Commission ordered a public hearing due to the seriousness of the allegations and their public interest.

Such initiatives mark a step towards aligning lex sportiva with broader principles of openness, democratic oversight and procedural fairness that are found in domestic legal systems.