Sports And The Law: Economic And Cultural Essay

Question:

Discuss about the Sports and the Law for Economic and Cultural.

Answer:

Anderson chapter 1 'what is sport law ' from Modern Sports law : A textbook (2010)

This book aims at providing details of how administrating, operation and playing of modern sports is influenced by law. I believe that even though the book concentrates on legal principles, it has also considered the social, economic, cultural and historical context including significant major sport events and leading personalities. Although such events and leading personalities is unavoidably deal with influential qualified sports but it could not dominate them instead it seeks to include broad range of amateur, professional and sports[1].

Initially, the book concentrates on certain realistic issues such as the structure of international and national sport and assesses the advancement of sports law authority. Thereafter, it recognizes three fundamental themes like participatory, financial and regulatory aspects of modern sport. The regulatory theme includes manners in which decisions made by governing bodies of sports can be put to test in the ordinary courts which might result in the development of alternate dispute mechanisms in sports. The participatory theme includes legal regulation of violence and doping in sport and the tortuous liability against sport related injuries[2]. The financial theme that demonstrates improved commercialization of sport at all levels which deals with issues applied in employment and contract law for the players and legal matters associated with the organization relating to major sports events. Further, in the end, the book briefly reviews the experience of EU law of modern sports, directing the future of sports law.

In this book, the author derives the definition of the term ‘sport’ from its history to have similar attributes since the time it has evolved. Sports is a non-competitive, quasi-physical leisure, localized and of custom-based nature. In the modern context, ‘sports’ relates to a codified, competitive and a highly regulated physical activity that is globally appealing. In my opinion, the author is correct when he states that the significance of the definition of sport is twofold, firstly, for the particular advantages that might mount up from its status and secondly, for the certainty it must provide as a starting point for studying sports law.

The advantages that may accrue from a declaration that an activity is a legally identified game or sport that includes several benefits which includes any favorable tax assessment for an individual participant or the charitable status accorded to the sporting associations[3]. Similarly, any game that has obtained legal recognition shall be provided with several exemptions from the applicability of the fundamental legal principle, which might otherwise impose limitation on the enjoyment of the sport[4]. One such instance is the exemption in terms of qualified immunity that is applicable to games and sports with legal recognition.

Such legally recognized games and sports receive exemption benefits by applying the ordinary consent threshold to assault in the criminal law. However, such threshold is applicable only after consulting authorities like Central Council of Physical Recreation who would determine whether any such physical activity associates with any lawful sport or game. I believe that this criteria is useful as it will enable the courts to distinguish between sports that is exempted from the applying principle of consent to assault and those where participants shall be criminally liable for committing assault against another player. Therefore, this criterion is helpful though in lawful sports also, importance shall be given to the safety of the players and attempts shall be made to control the risk of avoidable injury on contact sports, in particular like martial arts and boxing.

In my opinion, the author has rightly described the public-interest benefits deriving from sports in terms of ‘social utility’. In any sports activities, it is important to set a standard of care in negligence that is perceived as an attempt to safeguard the sport related activities especially in those types of sports that involves enhanced physicality and risks. Additionally, in my opinion, the author has explicitly described the significance in his contention with respect to importance of social utility of sports. Social utility is described as an important understanding of the manner in which sports especially the contact sports have been exempted from the ordinary law of personal violence that may otherwise arise if such contact sports is not granted the exemption.

At present, actions taking place in a Rugby or football field are still exempted from the ordinary law of assault to which, criminal or civil liability would have arisen, on the ground that the conduct undertake in such sports are consensual in nature. Further, such contact sports have qualified the criteria of a sport that is legally recognized as a socially beneficial sport. The author has been successful in presenting his viewpoints on influence of law in the administration and playing of modern sports. However, the author has also highlighted the existing boundary between law and sports due to which in this particular context, the definition of ‘sports law’ includes the applications of traditional areas of law like criminal, administrative, contract, tort and EU law. It also includes the various stakeholders and the general circumstance with respect to sports. It further includes lex sportiva where the term demonstrates co-existence of several internal administrative regulations and dispute-resolving mechanisms of sport with domestic international and supra-national law.

Nevertheless, sports law is yet to be represented as an autonomous branch of law and it shall not be established until the legislatures or courts accept legal principles to determine issues related to sports law. It appears that an appreciation of the ‘specificity’ of sports law as an individual branch of law can be determine based on the consideration n whether unusual application of the prevailing legal principles or doctrines as well as public policy is adequate to recognize the sports law as an individual branch of law.

Faldo v Australian Oztag Sports Association [2006] NSWCa 17

Background of the case

This case is related to the civil proceedings brought against the Oztag Association (defendant) and the Council by Mr. Thomas Falvo (Plaintiff) in 2000 on the grounds of negligence. Mr. Falvo sustained serious knee injury during a game of Oztag that was organized by the Australian Oztag Sports Association Incorporated (Oztag Association) on the Miller Reserve where the game was being played. The plaintiff claimed that the defendant failed to exercise proper care of the safety of the plaintiff and he sustained severe injuries due to the negligence of the defendant to provide the field in a fit condition while conducting the Oztag game. The trial judge decided in favor of the defendant against whom the plaintiff filed an appeal where the appellate court dismissed the appeal stating that the claims made by the appellant were not sufficient to hold the respondent liable for negligence and causation of the injuries.

Issues leading to the decision of the court

In my opinion, the number of issues that specifically assisted the court to decide in favor of the respondent is significant. Firstly, the claim of the plaintiff that he sustained injuries due to the unevenness of the land but due to the sinking of his foot into the sand. In order to establish the same, the appellate court considered the expert evidence reports provided by Mr. Westall who is turf grass consultant and Mr. Halstead. Both the reports stated that the lack of grass coverage and condition of field surface while plaintiff sustained injury is the outcome of the usage and grade of the fields which is consistent with other sporting grounds of NSW. Such fields are not provided to play any elite level of sports. I believe that the decision in Neindorf v Junkovic [2005][5] referred to in the case clearly established that sandy patches and slightly differing levels on the sports ground are part of the practical realities of life to which legal principle should be applied. Therefore, negligence claim against the Oztag association does not arise on conditions of ground.

Secondly, the negligence claims included issues pertaining to ‘dangerous recreational activity’ where the court was to determine whether the Oztag game caused him significant risk of physical harm[6]. The court observed that the rough rugby is not a contact sport instead; it is played to reduce the extent of physical contact that is otherwise experienced in ordinary tough rugby. Further, the sport cannot be referred to as a dangerous recreational activity as it does not involve any form of tackling or risk of being struck by hardball, it merely includes a degree of atheleticismc hence, cannot be said to be dangerous with respect to section 5k and 5L of the Civil Liability Act 2002. As per section 5K of the Act, a dangerous recreational activity refers to an activity that involves a significant risk of physical harm. Section 5L of the Act states that no person is liable for negligence for harm suffered by another person due to appearance of an obvious risk of dangerous recreational activity engaged in by the plaintiff[7].

Lastly, the issue of causation was settled by the court by considering the medical opinion of the orthopedic specialist, Dr Pinczewski and Dr. Sikander Khan, which clearly established that the injuries sustained by the plaintiff did not result from the unevenness of the ground. It was due to the leg movement of the plaintiff, which caused twisting of knee which as per medical opinion caused the plaintiff feel they have stepped into a hollow on the ground. The plaintiff assumed it as if his foot sank into the sand and sustained injuries.

Further, in the absence of any further evidence adduced by the plaintiff to rebut any of the evidences adduced by the respondent, he failed to discharge burden of proof to establish a link between his injuries and acts or omission of the respondents. This led the court to decide in favor of the respondent ad dismiss the appeal with costs[8].

Significance of the case

The above-mentioned case established the statement presented by the author in his book that the administration, monitoring and playing of sports is greatly influenced by law. This case is a example of the fact that the legal status accorded to any sports shall accrue benefits from such status not only in terms of financial resources but also in terms of certain legal exemptions which otherwise would have given rise to criminal liability[9].

This case is an evidence of the ‘Social utility’ of sports that is described by the author in his book. Although Oztag is not contact sports but it reduces the extent of risk of physical harm as it does not include any physical tackling that otherwise occurs in original tough rugby. Actions taking place in a Rugby field are exempted from the ordinary law of assault to which, criminal or civil liability would have arisen, on the ground that the conduct undertake in such sports are consensual in nature.

However, given the exemptions from criminal liability applicable in legally recognized sports, it must be understood that safety of the participants are given importance while setting a standard of care in negligence to safeguard any sport related activities[10]. However, in this case, though the unevenness of the field was dangerous but the injuries sustained by the plaintiff did not result from the condition of the land but due to twisting of knee.

Personal opinion

From the given information, I have inferred that several branches of law like the tort, administrative, contract law, etc with respect to sports perform multiple functions and administer modern sports as well. Nevertheless, in regards to the role that law should play in sport, the answer is threefold. Firstly, law should be adjudicatory and resolve conflicts arising in the given setting. Secondly, it must be supervisory and provide stable framework for corporate and human interaction and lastly it should be ameliorative to promote equality and social justice. However, it is less difficult to identify instances that will fulfill the role of law than to identify instances where the role of law in the field of sport will cease.

References

Anderson, Jack. What Is Sport Law ' From Modern Sports Law : A Textbook. 1st ed. 2010. Print.

Champion Jr, Walter. Sports law in a nutshell. West Academic, 2017.

Civil Liability Act 2002 (NSW) at section [5k], [5L]

Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17

Hill, Katelynn. "Index: Sports Law in Law Reviews and Journals." Marquette Sports Law Review 27.2 (2017): 615.

Lewis, Adam, and Jonathan Taylor. Sport: law and practice. Bloomsbury Professional, 2014.

Mitten, Matthew J., et al. Sports law and regulation: Cases, materials, and problems. Wolters Kluwer Law & Business, 2016.

Mitten, Matthew J., et al. Sports law: governance and regulation. Wolters Kluwer Law & Business, 2016.

Neindorf v Junkovic [2005] HCA 75 at [8]

Sharp, Linda, Anita Moorman, and Cathryn Claussen. Sport law: A managerial approach. Taylor & Francis, 2014.

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