What is "sports law" is a question often asked by students, academics, lawyers and lay persons. The person attempting to respond often searches in vain for a response that is cogent and demonstrates some modicum of understanding of "sports law." Perhaps the difficulty in articulating a response is, in part, a result of uncertainty related to what information is being sought. Is the "what is sports law" query intended to focus our attention on the content of the practice of sports law? In other words, which substantive areas of practice fall under the rubric of sports law? Specifically, is the role of the sports lawyer intended as the principal focus of the question? In this regard, perhaps what is sought is information concerning the range of services provided by the attorney who practices in the sports law context. Finally, perhaps the person who asks "what is sports law" seeks an answer to a more fundamental consideration - does such a thing as sports law exist? In other words, is sports law recognized as an independent substantive area of the law such as torts, contracts or employment law?
Sports law is not a typical area of law. Unlike, for example, antitrust, contract, company or employment law, each of which is distinct and largely self-contained, sports law covers various laws and regulations, incorporating elements of contract, employment, commercial, intellectual property, criminal, dispute resolution and various other laws. This is supplemented by a continually developing regulatory framework established by the various national and international governing bodies and federations within each sport, creating a complex structure of laws, rules and regulations that constitute sports law.
"SPORTS LAW" OR "SPORTS AND THE LAW?"
Those engaged in the concerning whether sports law constitutes a substantive area of law tend to adopt one of three positions:
1) no separately identifiable body of law exists that can be designated as sports law and the possibility that such a corpus of law will ever develop is extremely remote;
2) although sports law does not presently represent a separately identifiable substantive area of law, recent developments suggest that in the near future it will warrant such recognition; or
3) a body MARQUETTE SPORTS LAW REVIEW of law presently exists that can appropriately be designated as sports law.
I turn initially to a discussion of the views of those who adhere to the first of these three positions.
1. The Traditional View: "Sports Law" Does Not Exist The traditional view is that sports law represents nothing more than an amalgamation of various substantive areas of the law that are relevant in the sports context. According to this perspective, the term sports law is a misnomer given that sport represents a form of activity and entertainment that is governed by the legal system in its entirety.' Notes one commentator, "I have often said there is no such thing as sports law. Instead it is the application to sport situations of disciplines such as contract law, administrative law ... , competition law, intellectual property law, defamation and employment law. Remember there is no such thing as sports law."
a) Adopting this sentiment, the authors of a leading "sports law" textbook propose that "the term 'sports law' is somewhat misleading. In reality, sports law is nothing more or less than law as applied to the sports industry.
b) In elaborating, these authors state that "the study of 'sports law' does not involve an entirely unique or discrete body of special principles divorced from traditional legal concepts.
c) In sum, adherents to the traditional perspective argue that "sports law simply entails the application of basic legal precepts to a specific industry" that are drawn from other substantive areas of the law.
d) Consequently, no separately identifiable body of law exists that can be characterized as sports law.
2. The Moderate Position: "Sports Law" May Develop Into a Field of Law. Other commentators have begun increasingly to question the traditional view that no corpus of law exists that can be characterized as an independent field of law called sports law. Amongst the critics of the traditional view, are those who have staked out what represents a middle ground. Professor Kenneth Shropshire acknowledges that developments, such as state and federal legislation impacting sports (for example, state statutes regulating sports agents, and federal statutes such a "growing sports-only corpus" of law. Professor Shropshire concludes, however, that the body of sports-only law has not reached a point of maturation such that a "unique substantive corpus" exists that can be categorized as sports law. Consequently, he believes it is more appropriate to apply the "sports and the law" rather than the "sports law" designation to legal matters that arise in the sports context. Another adherent to the moderate position is Professor Burlette Carter who argues that sports law is in the midst of an exciting, yet challenging, transformative process. According to Professor Carter, this process parallels the increased focus by law schools on sports, and the growing significance of sports regulation to participants, organizations and communities. She believes that these developments will better shape the contours of this emerging field of study." This in turn, will eventually transform sports law from "a course without a corpus" to a widely recognized independent substantive area of law. Similar sentiments were expressed in the ground-breaking treatise authored by John Weistart and Cym Lowell - The Law of Sports. Therein, the authors addressed the following question: "Is there really any such thing as 'the law of sports? At the outset, they noted the hypothesis expressed by traditionalists that no such thing exists as sports law since there is no body of law unique to sports.
Writing in late 1970s, they observed, however, that based upon their research it soon became clear that there were many areas in which sports related problems required a specially focused analysis. On some matters, there are legal doctrines which apply in the sports area and nowhere else. This is the case, for example, with respect to such diverse matters as baseball's antitrust exemption and some of the tax rules to be applied to the recapture of depreciation on player contracts.
3. "Sports Law": A Separate Field of Law Finally
I examine the views of those who argue that sports law currently exists as a field of law. Adherents to this view emphasize the growing body of case and statutory law specific to the sports industry as evidence of the existence of a separately identifiable body of law. A leading advocate of this perspective is a British scholar, Simon Gardiner, who also demonstrates that the "sports law" or "sports and the law" debate has not been confined to the United States. Pointing to the increasing body of judicial and legislative law specific to sports, Professor Gardiner argues that [I]t is true to say that [sports law] is largely an amalgam of interrelated legal disciplines involving such areas as contract, taxation, employment, competition and criminal law but dedicated legislation and case law has developed and will continue to do so. As an area of academic study and extensive practitioner involvement, the time is right to accept that a new legal area has been born - sports law. Commentators also propose that references to sports law as merely an amalgamation of various other substantive areas of the law ignores an important present day reality - very few substantive areas of the law fit into separate categories that are divorced from and independent of other substantive areas of the law. Doctrinal overlap exists not only within sports law, but within other areas of law as well. According to Professor Carter, "the field of sports law has moved beyond the traditional antitrust and labour law boundaries into sports representation and legal ethics, sports and corporate structure, sports and disability, sports and race, sports and gender, sports and taxation, international issues in sports law and numerous other permutations. Proponents of the sports law designation and those sympathetic to the view, also argue that reticence to recognize sports law as a specific body of law may reflect attitudes regarding the intellectual seriousness of sports. In this regard, they emphasize the tendency to marginalize the study of sports rather than treat it as any other form of business. The intellectual marginalization of sport has been attributed, in part, to the belief that social relations extant in sports were not deemed proper subjects for reconstruction into legal relationships. Thus, private and public law were considered "inappropriate [mechanisms for] controlling the social norms of sport.