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Coppa Pavone, EUI soccer cup, starts tomorrow. Good time to share a few thoughts on intersection of sport rules and criminal/tort law.
The question of this post I came up with about 3 years ago, together with my friend Kazik, when we were looking for a subject to write a master thesis about. None of us chose it in the end, but I still find it challenging, both substantially and methodologically. Feel free to pick it up.
Question: where to draw a borderline between lawfulness and unlawfulness of an action breaking sport rules? In other words: when is a foul still legal, and when is it illegal?
It is often the case that an action which would normally be unlawful gets legalised through the consent to the sport rules/ sport risk. Consider two examples: boxing and soccer.
Soccer is a sport with a risk of injury, though unlike boxing it is not about injuring the opponent. Assume three situations, two easy, one hard, when one player kicks the other one and breaks his ankle.
1) The player acts in accordance with the rules, e.g. when tackling kicks the ball first, and so there is injury but no foul. In this case court action won’t be successful, for the injured one agreed to the rules and the injurer complied.
2) Another player approaches the injured one, lying on the ground, and starts kicking him on the other ankle, breaking it. He clearly breaks the rules of the game, there is a foul, and clearly there is a tort and a crime, for his actions are in no way legalised by the rules.
3) But consider an action in which, while fighting for a ball, one player kicks another one in the ankle and unintentionally breaks it. He breaks the rules, but very often all would agree that he is not liable for tort and guilty of crime – such things just happen in soccer. If every foul resulting in injury would be illegal, no one would dare to play the game. So the consent seems to justify not only the actions complying with the rules of the game, but also those crossing them and… exactly, and what? just the intention seems to simple.
One might seek a borderline – ‘up to this point there is not illegality, right above it there is’ – or one might try to develop a test, not being a clear line itself, but allowing to deem an action lawful or unlawful in every given situation. The other one seems more plausible. But how to do it?
Boxing is easier case in one aspect, and harder in another. Since its very purpose is harming the other player in accordance with the rules, the border of breaking the law will be much closer to breaking the rules. Though still, this won’t always be the case. Still, it is harder, for… how come this is legal at all? For even if me and you agree that we will fight each other outside of the bar, and we agree on rules, if one gets injured, this will be a crime and most probably a tort.
What is so special about the sports?
What is the role of international sport associations setting up the rules?
Are they prior to the state and just accepted, or do they have any sort of delegated power?
How to explain this through legal theory?
Here again, sports might be professional and then it’s easier, but while playing football on a pitch of Villa Schifanoia we are hardly professional, rather nobody reads rules of FIFIA, and yet we come within the sport exception. But if we do box there, we don’t.
This post is not about methodology, but let me just point to a few issues here, for it is a good example of how one can get a legal method wrong. The question: when is a foul still legal, and when is it illegal? makes a bad research question, unless we specify what is meant by ‘being legal’ in the given context. There is a dialectical relation between question and method; and each method has got its limitations when the ‘amount of truth’ it can bring is concerned.
The question might be rephrased as one of the following:
1) where do courts and adjudicators draw the line? then research is empirical and descriptive;
2) given the text of law as it is, how should the test be constructed? then work is doctrinal and seemingly descriptive of law, though unless there is a clear provision, the line between description and prescription gets blurred; still the normative statement here will have to be based on the normativity ‘internal’ to the law;
3) given the rationale of law and social ordering in given society, how should the existing law be interpreted? then research is normative, in the ‘external’ sense, but still bound by the provisions, since considered with interpretation and not a change;
4) given the rationale of X (here legal system in total, cultural setting, social purposes), what should be the test? then research is normative, external and unbound, but… it is very easy to disguise it as still a doctrinal research, and unfortunately this often happens in legal scholarship.
With this let me finish, and wish everyone many goals and zero injuries since tomorrow onwards!