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International Sports Law: A Replay of Characteristics and Trends

Published online by Cambridge University Press:  27 February 2017

James A. R. Nafziger
James A. R. Nafziger*
Affiliation:
Willamette University
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Extract

The much-neglected field of international sports law is changing significantly. From a patchwork of hard and soft law cultivated by the Olympic Movement, a more structured pattern of international administration and dispute resolution is emerging. Trends include the exercise by transnational sports organizations of greater and more uniform authority over athletes and athletic activity; improved mechanisms for resolving disputes and appealing decisions within those organizations; and a modest inclination toward arbitration and adjudication of disputes. Also, attention has shifted within the arena of international sports from political issues to social, economic and organizational issues and toward applying principles of procedural and substantive fairness to resolving disputes. These trends in administration and dispute resolution are interrelated. As the organizations that directly regulate sports activity become more intrusive, they generate expectations and entitlements that require more stable and equitable rules and procedures of enforcement.

Type
Research Article
Information
American Journal of International Law , Volume 86 , Issue 3 , July 1992 , pp. 489 - 518
Copyright
Copyright © American Society of International Law 1992

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References

1 International sports law may be broadly defined as “a more or less distinctive body of rules, principles and procedures that govern the political and social consequences of transnational sports activity.” J. Nafziger, International Sports Law 1 (1988).

2 In a light, but insightful, vein, Lord Wilberforce called attention to the “excommunication” of offending countries by the “one true world religion,” the Olympic Games. Lord Wilberforce, The Age of the International Lawyer, 76 ASIL Proc. 301, 302 (1982).

3 International Convention against Apartheid in Sports, Dec. 10, 1985, GA Res. 40/64G, 40 UNGAOR Supp. (No. 53) at 37, UN Doc. A/40/53 (1985); European Convention on Spectator Violence and Misbehaviour at Sport Events and in Particular at Football Matches, Europ. TS No. 120, 1985 Eur. Y.B. (Council of Eur.) 25; Anti-Doping Convention, Europ. TS No. 135, 1989 Eur. Y.B. (Council of Eur.) 76; European Charter on Sport for All Disabled Persons, Recommendation No. R(86)18, 1986 Eur. Y.B. (Council of Eur.) 60. Unesco instruments are cited and discussed at notes 14–16 infra.

4 For example, “Olympic lawyers”

work for the non-profit governing bodies that oversee all Olympic sports and sanction their competitions. Much of these attorneys’ work supports fund-raising efforts—negotiating the corporate sponsorship and licensing agreements that provide the organizations’ revenue.

Trademark protection and monitoring athlete eligibility and drug testing procedures are often other major functions of the job.

Garnett, Olympic Lawyers Behind the Scenes: Let the Games Begin, A.B.A.J., Jan. 1992, at 54, 54.

5 For a summary of the history and institutions of the Olympic Movement, see Johnson, Book Review, 60 Brit. Y.B. Int’l L. 450, 451 (1989).

6 The lofty goal of the Olympic Movement is “to contribute to building a peaceful and better world by educating youth through sport practiced without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair-play.” Olympic Charter, Fundamental Principle 6 (1991). “The Olympic Charter is the codification of the Fundamental Principles, Rules and Bye-laws adopted by the IOC. It governs the organization and operation of the Olympic Movement and stipulates the conditions for the celebration of the Olympic Games.” Id., Fundamental Principle 8.

Juan Antonio Samaranch, President of the International Olympic Committee, paraphrased the task as follows:

We must always bear in mind that the purpose of the Olympic Movement is not just to attribute a major sports competition somewhere and organize it. We also have the ideal of bringing people together in peace for the benefit of mankind. … We must educate not only athletes but also the public at large in a spirit of fair play, better understanding between each other and friendship.

Olympic Rev., July 1991, at 312.

7 Olympic Charter, Rule 1 provides as follows: “(1) The IOC is the supreme authority of the Olympic Movement. (2) Any person or organization belonging in any capacity whatsoever to the Olympic Movement is bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC.”

Rule 2, id., lists twelve principal functions of the IOC. Rule 9, id., provides that “[t]he authority of last resort on any question concerning the Olympic Games rests in the IOC.”

8 Id., Rule 3(1). For an example of enforcement by the IOC of its rules against IFs, see Olympic Rev., Sept.-Oct. 1989, at 441 (requirement, on eve of dramatic change in South Africa, that International Tennis Federation (ITF) comply with all rules of Olympic Charter, necessitating ITF’s suspension of “recognition of” South Africa). Effective enforcement of IOC rules requires persistent armtwisting: “At the summit of the sports world sits the IOC. But, unlike Zeus of old, the IOC has few thunderbolts to command obedience. Instead it must negotiate, mainly with several kinds of official bodies [other constituent bodies of the Olympic Movement].” W. Irwin, Jr., The Politics of International sport—Games of Power 23 (1988).

9 See, e.g., Recent Developments, 25 Stan. J. Int’l L. 611, 616 (1989) (“Thus, although the IOC has neither a foundation under international law nor a membership that includes states or subjects of international law, many members of the international community have treated it as if it indeed had international personality”); Comment, International Sports: Have States Succeeded Athletes as the Players?, 6 Dick. J. Int’l L. 403, 424 (1988); Note, Political Abuse of Olympic Sport: De Frantz v. United States Olympic Committee, 14 N.Y.U. J. Int’l L. & Pol. 155, 162 (1981) (“Despite its nongovernmental status, the IOC has been vested with substantial legal authority; it engages in extensive diplomatic activity and is a vital authority on intergovernmental affairs”); Silance, Interaction of the rules in sports law and the laws and treaties made by public authorities, Olympic Rev., Oct. 1977, at 619, 622 (“The International Olympic Committee is considered as the highest sports authority; it governs Olympic sport which forms an extra-juridical order”); accord, Bondoux, Law and Sport, Olympic Rev., Aug.–Sept. 1978, at 494, 501; Garrigues, The Impact of Community Law on Physical and Sports Activities, Olympic Rev., June 1979, at 345. On means by which the Olympic Charter and Movement influence governmental decision making, see Siperco, On the Right Road to Co-operation, Olympic Rev., Sept.–Oct. 1989, at 454. For an example of sovereign deference to the authority of the IOC and IFs, see infra note 68 (Canada’s official inquiry into substance abuse by its athletes).

10 Johnson, supra note 5, at 451.

11 Simma, The Court of Arbitration for Sport, in Völkerrecht/Recht der Internationalen Gorganisationen/Weltwirtschaftsrecht: Festschrift fur Ignaz Seidl-Hohenveldern 573, 580 (K.-H. Böckstiegel, H.-E. Folz, J. M. Mössmer & K. Zemanek eds. 1988). Silance, supra note 9, at 628, made the same observation:

National jurisdictions and the highest [European] Community jurisdiction have recognized the value of sports rules laid down by the relevant International Federations and consequently admitted the existence of sports juridical orders. … The law of the State, whether national or Community, gives way before the law of sport in its own domain.

12 36 U.S.C. §§371–396 (1988).

13 Behagen v. Amateur Basketball Ass’n of U.S., 884 F.2d 524 (10th Cir. 1989); see also Burrows v. Ohio High School Athletic Ass’n, 891 F.2d 122 (6th Cir. 1989); Oldfield v. Athletic Congress, 779 F.2d 509 (9th Cir. 1985); J. Nafziger, supra note 1, at 165–213, passim.

14 Unesco Res. 1/5.4/2, 1 Records of the General Conference, 20th Sess., at 31 (1978).

15 Unesco Res. 1.20, Universality of the Olympic Games, 1 Records of the General Conference, 25th Sess., at 91 (1989).

16 Id.; see also Unesco Res. 1.18, Development of Physical Education and Sport, id. at 88; Unesco Res. 1.19, The Fight Against Doping in Sport, id. at 89 (reaffirming cooperation with the Olympic Movement).

17 See Zagaris, Book Review, 5 Int’l Enforcement L. Rep. 478 (1989). On the role of municipal courts, see, e.g., San Francisco Arts & Athletics, Inc. v. USOC & IOC, 483 U.S. 522 (1987) (U.S. Congress intended to implement Olympic Charter); Martin v. IOC, 740 F.2d 670, 677 (9th Cir. 1984) (“The Olympic Games are organized and conducted under the terms of an international agreement— the Olympic Charter. We are extremely hesitant to undertake the application of one state’s statute to alter an event that is staged with competitors from the entire world under the terms of that agree ment”). Shortly before the 1984 games in Los Angeles, the President of the United States assured the IOC that his Government “is totally committed to upholding the Olympic Charter.” Spindulys v. Los Angeles Olympic Org. Comm., 220 Cal. Rptr. 565, 567 n.3 (Cal. Ct. App. 1985) (of course, this statement may be one of political, rather than strictly legal, compulsion). See also Recent Develop ments, supra note 9.

18 “[T]he networks of principles, norms, rules and decision-making institutions that help stabilize state relationships in various issue areas.” Farer, Human Rights in Law’s Empire: The Jurisprudence War, 85 AJIL 117, 124 (1991).

19 Vedder, The International Olympic Committee: An Advanced Non-Governmental Organization and the International Law, 27 Ger. Y.B. Int’l L. 233, 256 (1984) (the IOC “can be regarded as exercising quasi-governmental functions. Hence, an internationally autonomous legal order has been estab lished, which, although not public international law, is true international law”). The author, a leading commentator on international sports law, provides an illuminating analysis of the status of the IOC. He notes that, although the IOC cannot by itself generate public international law, states have recog nized its autonomy as an implied delegation of governmental functions in sports. “[T]he crucial point is that it acts autonomously and independent [sic] of state governments and has to maintain this autonomy.” Id. at 257. Vedder further points out:

When states began discovering international sports as a matter of governmental domain, they found themselves confronted with an already existing organization, the IOC. It may very well be concluded, that governments, by not interfering with IOC matters, intend the IOC to continue operating autonomously on an international level, including having relations to states on equal terms.

Id. at 257–58; accord, Silance, supra note 9, at 622, 628.

20 See, e.g., Verdross, Le Fondement du droit des gens, 16 Recueil des Cours 251 (1927 I). For an introduction to the seminal work of Georges Scelle on the droit des gens, see Thierry, The Thought of Georges Scelle, 1 Eur. J. Int’l L. 193 (1990) (followed by informative commentary on Scelle’s work by Cassese, Condorelli, Dupuy and Tanca).

21 See, e.g., Janis, International Law?, 32 Harv. Int’l L.J. 363, 370, 372 (1991).

22 Handl, Remarks, 82 ASIL Proc. 372 (1988). On the merits and influence of soft law in the context of environmental issues, see Palmer, New Ways to Make International Environmental Law, 86 AJIL 259, 269–70 (1992), who observes:

Considering that the system is somewhat short of means for establishing norms, it would be a great mistake to get too excited from an analytical point of view about the dangers of soft law. It has the capacity to make an important contribution and in the global environmental area it has already done so. … It is a vital part of the continuous process of building norms.

Id.

23 But see Summerer, Book Review, 50 Zeitschrift für Völkerrecht 162 (1990). Defending a dissertation involving selected judicial decisions from four countries, the writer examines international sports law through a prism of either-or labels (“public” vs. “private,” “intergovernmental” vs. “non governmental,” hard law vs. no law at all, and so on). While such distinctions are certainly useful, the writer’s formalistic reliance on them in assessing the legal significance of a complicated system, though impressively simple, seems unrealistic. The writer’s preoccupation with jurisprudential pedigree, his impatience with the subtleties of authority, legitimacy and numerous soft elements in the regime of sports law, and his polemic style leave the impression that there is no transnational regime at all. None of the three pertinent (“einschlägig”) decisions that the writer identifies at the end of his essay is any longer controlling. Indeed, well before publication of this essay, two of the decisions had been reexamined and modified by the courts and the third reversed by them. Significantly, the final opinion in one of the cases, Behagen v. Amateur Basketball Ass’n of U.S., 884 F.2d 524 (10th Cir. 1989), emphasized both the public role of a designated private association that is not a governmental actor under U.S. constitutional law and the centrality of the IOC in “governing structures for American involvement in international amateur sports.” Id. at 527.

24 B. Jonson, Epistle to Elizabeth, Countess of Rutland, in The Forest, in Ben Jonson 198 (I. Donaldson ed. 1985).

25 N.Y. Times, Oct. 6, 1989, at D23, col. 4.

26 Asian Wall St. J. Wkly., Oct. 8, 1990, at 2, col. 4.

27 See Capital Cities/ABC, Inc. v. Brady, 740 F.Supp. 1007 (S.D.N.Y. 1990); Note, Another Inning in Cuban-United States Relations: Capital Cities/ABC Inc. v. Brady, 1 Ind. Int’l & Comp. L. Rev. 281 (1991); Bland, Constitutionality of Regulating International Sports Broadcasting: Capital Cities/ABC, Inc. v. Brady, 44 Fed. Comm. L.J. 363 (1992) (noting that a settlement was later reached that seems to have permitted ABC to broadcast the games in return for restrictions on payments to Cuba for goods and services; id. at 390 n.139).

28 See J. Nafziger, supra note 1, at 71, 99. For a bibliography on the politics of international sport, see W. Irwin, Jr., supra note 8, at 70.

29 The leading measures of a state’s prestige and propaganda success seem to be the relative number of medals won by its nationals, the status of hosting a major competition, and an enhanced global image. See, e.g., ¡Cuba cumplió su sueño de destronar a EU!, El Heraldo (Mexico City), Aug. 19, 1991, at 6B, col. 3 (Havana hosted 1991 Pan American Games and Cuban nationals won the most gold medals); Olympiaday diplomacia, El Comercio (Quito), Mar. 10, 1992, at C–3, col. 5 (enhancement of Barcelona’s and Spain’s prestige in hosting 1992 games). On patriotic bravado related to the 1984 games in Los Angeles, see J. Chancellor, Peril and Promise: A Commentary on America 117–18 (1990). For an Asian focus, see Xiang, Games spirit does wonders in all ways, China Daily, Oct. 6, 1990, at 4, col. 1; Jaivin, Can Asian Games Wipe Out the Stain of Tiananmen?, Wall St. J., Sept. 27, 1990, at A12, col. 1; 11th Asiad—an Unprecedented Sports Meet, Beijing Rev., Sept. 24–30, 1990, at 18; Kristof, Games Offering China a Chance to Polish Image, N.Y. Times, Sept. 23, 1990, §1, at 1, col. 5; Safire, Games Asians Play, N.Y. Times, Sept. 20, 1990, at A21, col. 1 (“to Americans, politics is sport; to Asians, sport is politics. Beijing’s authorities are using this event to assert their regional prestige, to unify their nation behind the goal of winning gold medals, and to expunge the memory of last summer’s ‘events’ at Tiananmen”) (Beijing hosted 1990 Asian Games and Chinese nationals won the most medals). On the importance to China of international sports competition, see the special section China’s Sports Relations with Other Countries, in Xinhua News Agency, China’s Foreign Relations: A Chronology of Events (1949–1988), at 571–618 (1989) [hereinafter China’s For eign Relations],

30 Note 3 supra.

31 China’s Foreign Relations, supra note 29, at 529; Tucker, China and America: 1941–1991, Foreign Aff., Winter 1991/92, at 75, 85.

32 Christian Sci. Monitor, Mar. 5, 1984, at 2, col. 4.

33 Sterngold, Joint Table Tennis Team Chips Ice of 2 Koreas, N.Y. Times, May 7, 1991, at A8, col. 4.

34 Olympic Rev., Oct. 1985, at 608.

35 For a capsule history of the negotiations and mediation by the IOC, see id., Feb. 1986, at 87; id., July 1986, at 368; id., Aug. 1986, at 442; id., Nov.-Dec. 1986, at 664; id., Sept. 1987, at 446.

36 See Free China J., Nov. 29, 1991, at 4, col. 4.

37 See Olympic Rev., Dec. 1991, at 551. On the issue of Yugoslav participation in the 1992 summer games, see N.Y. Times, June 17, 1992, at Bll, col. 3.

38 Id., Apr. 1981, at 211 (designation by IOC); Chien, A View From Taipei, Foreign Aff., Winter 1991/92, at 93, 97 (extension of the practice as a matter of “pragmatic diplomacy”).

39 For example, in 1991 Taiwan became a member, as “Chinese Taipei,” of the Asia-Pacific Economic Cooperation group. Free China J., Dec. 3, 1991, at 6, col. 3.

40 In 1964, acting under Rules 1 and 3 of the Olympic Charter (see text at and notes 7–8 supra), the IOC withdrew South Africa’s invitation to the games to be held that year. For the legal basis, see Olympic Rev., Aug. 1988, at 347. In 1968 the IOC readmitted South Africa to the games, but soon rescinded its invitation, in response to a threatened boycott of the Mexico City games that year. In 1970 the IOC expelled South Africa from the Olympic Movement altogether. In 1991 the IOC readmitted the South African national committee after an extensive history of efforts to induce Pretoria to rescind its apartheid laws. This history is recounted in J. Nafziger, supra note 1, at 81–90 (pre-1988), and Olympic Rev., Aug. 1991, at 366 (1988–91).

41 Supra note 3. The Convention requires parties to take measures, including the imposition of sanctions, to help ensure that their sports bodies, teams and athletes maintain no sports relationship with any country practicing apartheid. The Convention also requires parties to bar entry into their territories of teams or individuals who participate, or have participated, in sports competitions in South Africa.

42 See 23 Keesing’s Contemporary Archives 28,507 (1977).

43 Battersby, South Africa Returns to the Field, Christian Sci. Monitor, Apr. 26, 1991, at 14, col. 2 (“South Africa’s exclusion from international sports competition has been one of the most effective sanctions applied, political scientists and diplomats say”); accord, Olympic Rev., Aug. 1991, at 365, 366; id., July 1991, at 311.

44 See, e.g., Wren, Olympic Panel, in South Africa, Weighing a Return to Games, N.Y. Times, Mar. 24, 1991, §8, at 3, col. 1 (“the sports boycott has sent a convincing message to white South Africans that apartheid is unacceptable to the rest of the world”).

45 Kristof, Iraq Voted Out of Asian Games, N.Y. Times, Sept. 21, 1990, at A10, col. 1.

46 General Association of the International Sports Federations, Declaration—GAISF, paras. 81, 85 (1988).

47 Communist Sports Machines, Economist, Dec. 22, 1990, at 67 (focus on East/eastern Germany and Soviet Union/Russia). For descriptions of remaining Communist sports machines, see Rhoden, Cuba’s Successful Sports System, N.Y. Times, Aug. 19, 1991, at B9, col. 1; Gabriel, China Strains for Olympic Glory, N.Y. Times, Apr. 24, 1988, §6 (Magazine), at 30.

48 Herrmann, Germany’s ‘Miracle Machine’ is Left in the Blocks, N.Y. Times, Nov. 4, 1990, §8, at 10, col. 1 (merger of East and West German sports systems).

49 Johnson, supra note 5, at 451–52.

50 IOC Support for Countries in Transition, Olympic Rev., May–June 1990, at 240; Herrmann, supra note 48, cols. 1, 2, 5.

51 Unesco Sources, Dec. 1990, at 23.

52 See, e.g., Camp, Track Athletics in America, 40 Century 203 (1890) (“The professional side offers but little of interest to us beyond the records. The reason for this is that, in America at least, [professional sports are] under a heavy cloud of questionable practices in the way of buying and selling races”); see also Shropshire, Legislation for the Glory of Sport: Amateurism and Compensation, 1 Seton Hall J. Sport L. 7, 9 (1991).

53 Chriss, Remarks, International Athletic Foundation International Symposium on Sport and Law, Monte Carlo, Monaco, at 3 (Jan. 1991) (copy on file with author) [hereinafter IAF Symposium]. Within the rules of the Olympic Charter, the primacy of the IFs means, for example, that a breach of IF eligibility criteria that are consistent with Olympic rules, as extended to a national federation, may disqualify an athlete from Olympic and other competition. See, e.g., Feinstein, Seles’s Ban from the Olympics is Milestone for Tennis, N.Y. Times, Aug. 18, 1991, at 22, col. 1.

54 The eligibility code now reads, very simply, as follows: “To be eligible for participation in the Olympic Games a competitor must comply with the Olympic Charter as well as with the rules of the IF concerned as approved by the IOC, and must be entered by his NOC.” Olympic Charter, Rule 45. The bylaw to Rule 45 provides as follows:

(1) Each IF establishes its sport’s own eligibility criteria in accordance with the Olympic Charter. Such criteria must be submitted to the IOC Executive Board for approval.

(2) The application of the eligibility criteria lies with the IFs, their affiliated national federations and the NOCs in the fields of their respective responsibilities.

(3) All competitors in the Olympic Games shall:

3.1 respect the spirit of fair-play and non-violence, and behave accordingly on the sports-field;

3.2 refrain using [sic] substances and procedures prohibited by the rules of the IOC or the IFs;

3.3 respect and comply with all aspects with [sic] the IOC Medical Code.

(4) No competitor who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.

(5) The entry or participation of a competitor in the Olympic Games shall not be conditional on any financial consideration.

Id. For historical background, see J. Nafziger, supra note 1, at 139–51.

55 See Shropshire, supra note 52, at 18, 27; Chriss, supra note 53, at 5.

56 See Shropshire, Thoughts on International Professional Sports Leagues and the Application of United States Antitrust Laws, 67 Den. U.L. Rev. 193, 211 (1990); Eskenazi, Pro Leagues in America Eye the Globe, N.Y. Times, Apr. 9, 1989, at 19, col. 1.

57 Olympic Rev., Feb.–Mar. 1992, at 100, 101; id., Feb. 1991, at 64.

58 Id., Oct.–Nov. 1991, at 490; Pound, The International Olympic Marketing Programme, id., Feb. 1986, at 84; Olympic Rev., July 1985, at 384.

59 The NBC network paid a record $401 million for exclusive U.S. television rights to the 1992 Olympic Summer Games in Barcelona; the CBS network paid $243 million for similar rights to the 1992 Olympic Winter Games in Albertville, France, and $300 million for the 1994 Olympic Winter Games in Lillehammer, Norway. United States Olympic Committee, 1990 USOC Fact Book 25. On new techniques, see Olympic Rev., Dec. 1990, at 545.

60 Stinson, On Trust Funds, IAF Symposium, supra note 53, at 2.

61 Chriss, IAF Symposium, supra note 53, at 8.

62 The IOC’s Medical Commission has established an extensive list of banned substances and proce dures. These include (1) classes: stimulants, narcotics, anabolic steroids, beta blockers, and diuretics; and (2) methods: blood doping and packing (enhancing red blood cell counts by transfusion of oxygen-rich blood to improve stamina) and deliberate masking of urine content. Restricted, but not banned, substances include alcohol, local anesthetics, corticosteroids, and human chorionic gonado trophs.

A report by the commission revealed that the leading substances detected by IOC-accredited laboratories in 1988 were, in order of frequency of positive tests: anabolic steroids (791 cases, of which nandrolene accounted for 304); testosterone (155); stimulants (420, of which pseudoephedrine accounted for 140 and phenylpropanolamine, 109); narcotics (58, of which codeine accounted for 35); diuretics (57); probenicide, a masking agent (19); and beta blockers (8). Olympic Rev., May 1989, at 198.

63 See, e.g., Fisher, E. German Sports: Ruled by Steroids, Wash. Post, Sept. 7, 1991, at Al, col. 1.

64 The IOC Medical Commission’s report on antidoping samples analyzed in 1988 by IOC-accred ited laboratories revealed the following statistics:

Out of 47,069 samples analyzed, 1,153 were found to be positive, or 2.45% of the total. In 1987, there were 854 positive cases out of 37,882 samples analyzed, or 2.25%, and in 1986 the figure was 623 cases out of 32,982, or 1.89%. It is naturally at major international meetings that the highest percentage of positive samples is recorded, with a figure of 2.84%. Before major championships the figure is 2.70%. National competitions produce a figure of 2.53%, while samples from unannounced out-of-competition tests produce 2.18% positive cases.

Olympic Rev., May 1989, at 198. In 1990 IOC-accredited laboratories administered 61,000 tests, a 36% increase over the previous year. The percentage of positive tests dropped to below 1% for the first time. Id., July 1991, at 322. The 1984 Los Angeles games produced the following statistics: “Within 15 days, 1510 different urine specimens underwent 9440 screening analyses by a combination of gas chromatography-mass spectrometry, “high performance” liquid chromatography, and radioimmunoassay. These tests covered more than 200 different drugs and metabolites, including psychomotor stimulants, sympathomimetic amines, central nervous system stimulants, narcotic analgesics, and anabolic steroids.” Catlin, Kammerer, Hatton, Sekera & Merdink, Analytical Chemistry at the Games of the XXIIIrd Olympiad in Los Angeles, 1984, 33 Clinical Chemistry 319 (1987).

65 See, e.g., Olympic Rev., Oct.–Nov. 1991, at 489.

66 See, e.g., Michels v. USOC, 741 F.2d 155 (2d Cir. 1984) (weightlifter had no private cause of action in a case concerning suspension of his eligibility by an IF because testing showed an impermissi ble level of drug-produced testosterone).

67 Altman, New “Breakfast of Champions’: A Recipe for Victory or Disaster?, N.Y. Times, Nov. 20, 1988, at 1, col. 4, 34, col. 1.

68 Armstrong, The Lessons Learned From Canada’s Dubin Inquiry, IAF Symposium, supra note 53, at 22, 26.

69 Olympic Rev., Nov. 1988, at 628, 631; id., May 1989, at 198.

70 USOC Fact Book, supra note 59, at 39; Recent Developments, supra note 9.

71 Armstrong, supra note 68, at 29.

72 Wash. Post, Dec. 14, 1989, at D9, col. 4.

73 Supra note 3. The parties agreed to adopt the IOC list of doping agents and methods. They also agreed to harmonize domestic antidoping regulations, such as those restricting the availability and use of substances, specifying the conduct and funding of tests, and premising support of athletes on tests. The Convention commits parties to help establish and provide access to control laboratories, to institute educational programs, and to cooperate with national and international sports organizations. A monitoring group oversees application of the Convention.

74 Bundy, From Cold War Toward Trusting Peace, Foreign Aff., No. 1, 1990, at 197, 198.

75 Supra note 3. See Broadbent & Vincenzi, World Cup 1990: law and order v. civil liberties and EEC rights?, 134 Solic. J. 698 (1990) (with particular attention to British and European Community law); Comment, A Survey of Domestic and International Sanctions Against Spectator Violence at Sporting Events, 11 Hous. J. Int’l L. 415, 434 (1989); Comment, The War on Soccer Hooliganism: The European Convention on Spectator Violence and “Misbehaviour” at Sports Events, 27 Va. J. Int’l L. 603 (1987).

76 Haberman, English Fans Tangle With Police Before Game, N.Y. Times, June 17, 1990, at 27, col. 1; MacLeod, British Government to Pass New Laws to Clean up Soccer, Christian Sci. Monitor, Feb. 1, 1990, at 5, col. 1; Hazleton, British Soccer: The Deadly Game, N.Y. Times, May 7, 1989, §6 (Maga zine), at 40; Baum, British Soccer: On the Line, Christian Sci. Monitor, Apr. 19, 1989, at 4, col. 1.

77 J. Nafziger, supra note 1, at 159, 210 (gender discrimination); Mosler, Special Olympics: Universal Games for the Disabled, Olympic Rev., Aug. 1991, at 380 (sport for the disabled).

78 “The aim of Olympic Solidarity is to organize aid to NOCs recognized by the IOC, in particular those which have the greatest need of it.” Olympic Charter, Rule 8.

79 For example, international sports federations may develop one set of eligibility rules for Olympicrelated competition and another set for other competitions, such as their own world championships. Thus, a national federation’s application of an “inadvertent use” exception in doping cases was consistent with IAAF and IOC rules, but not with its own, recently adopted, stricter rules. Almond, Drug Testing by Track Group is Questioned, L.A. Times, June 19, 1990, at C1, col. 4.

80 E.g., in Michels v. USOC, 741 F.2d 155, 159 (2d Cir. 1984), a concurring opinion noted that the USOC “has no control over nonmembers. The International Weight Lifting Federation can thumb its collective hose at the [USOC].” See also Comment, When Sovereigns Collide: Why America’s Figure Skating Competitors are the Ultimate Losers Under the Amateur Sports Act of 1978, 9 Cardozo Arts & Ent. L.J. 231, 252 (1990) (“Consequently, amateur athletes and their NGBs face a dilemma—the sports law for the United States and the rules of an international sports federation are in conflict”).

81 Quoted in Dictionary of Quotations 494 (B. Evans ed. 1968).

82 E.g., the President of the international federation for soccer has acknowledged that “[s]occer … is now an organization of professionals in management.” Int’l Herald Trib., July 4, 1988, at 1, col. 2.

83 E.C. News, Aug. 1991 (Austl. ed.).

84 Tarasti, Appealing in Anti-doping Procedures, IAF Symposium, supra note 53, at 2. On the enforceability of the IAAF arbitral award in the United Kingdom, see Gasser v. Stinson (High Court June 15, 1988).

85 Samuel & Gearhart, Sporting Arbitration and the International Olympic Committee’s Court of Arbitration for Sport, 6 J. Int’l Arb. 39, 52 (1989).

86 Olympic Rev., Nov. 1983, at 763. The Statute of the CAS [hereinafter Statute] is reproduced in J. Nafziger, supra note 1, at 221. For an introduction to the CAS, see Simma, supra note 11.

87 Olympic Rev., Aug. 1991, at 408.

88 Statute, supra note 86, Art. 4 (emphasis added).

89 Id., Art. 5.

90 1986 Eur. Y.B. (Council of Eur.) 34.

91 Since cases before the CAS have typically involved such important issues as eligibility, doping and broadcasting rights, it is puzzling to read that “[m]atters for the Court of Arbitration for Sport … are simply not matters that strike at the very heart of international competition,” followed by the apparent contradiction that eligibility and doping rules “are the issues at the heart of sport.” Dockterman, Book Review, 83 AJIL 690, 693 (1989) (highlighting breaches of international sports law, projecting a sort of international anarchy, and arguing that international sports law ought to embrace rules of decision for players, rather than what the reviewer calls rules of the ekecheiria).

92 See Simma, supra note 11, at 584; Olympic Rev., Nov. 1988, at 621.

93 Olympic Rev., May 1991, at 213 (decision against the federation).

94 Id., May-June 1987, at 287.

95 Simma, supra note 11, at 584.

96 Samuel & Gearhart, supra note 85, at 47; Karaquillo, Arbitrage sportif et procédure juridictionnelle, IAF Symposium, supra note 53, at 7.

97 Olympic Rev., Aug. 1991, at 407; id., May 1989, at 202.

98 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, TIAS No. 6997, 330 UNTS 3. On the enforceability of CAS and other arbitral awards, and exceptions to the New York Convention, see Samuel & Gearhart, supra note 85, at 49.

99 Mclnnes v. Onslow Fane, [1978] 3 All E.R. 211, [1978] 1 W.L.R. 1520.

100 Law v. National Greyhound Racing Club Ltd., [1983] 1 W.L.R. 1302, 1307; Mclnnes v. Onslow Fane, [1978] 3 All E.R. at 223 (“This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities”); accord, R. v. Criminal Injuries Compensation Bd., Ex parte Lain, [1967] 2 Q.B. 864, 882. See generally Grayson, Reviewing sporting bodies, 141 NEWLJ. 1113 (1991).

101 Breen v. AEU, [1972] 2 Q.B. 175, 190.

102 Mclnnes, [1978] 3 All E.R. at 219, 220.

103 R. v. Football Ass’n of Wales, Ex parte Flint Town United Football Club, No. CO/1033/90 (Q.B. July 11, 1990) (available on LEXIS, Enggen library, Cases file) (quoting R. v. Panel of Takeovers & Mergers, Ex parte Datafin, 1987 Q.B. 815); R. v. Disciplinary Comm. of Jockey Club, Ex parte Massingberd-Munday, 1990 T.L.R. 14. But see Law v. National Greyhound Racing Club, Ltd., [1983] 1 W.L.R. 1302, 1307.

104 R. v. Jockey Club, Ex parte RAM Racecourses Ltd, No. CO/1758/89 (Q.B. Div’l Ct. Apr. 30, 1990), 1990 T.L.R. 289 (available on LEXIS, Enggen library, Cases file).

105 Nagle v. Feilden, [1966] 2 Q.B. 633. But see Rao, Remarks, IAF Symposium, supra note 53, at 2.

106 Law, [1983] 1 W.L.R. at 1308.

107 See R. v. Jockey Club, 1990 T.L.R. 289, where it was observed that never hitherto had any sporting body been found amenable to review. That was really only because the courts had sought to meet the needs of public policy in that area by developing private law principles instead. This was a dynamic area of law, well able to embrace new situations as justice required.

Id. at 290 (Simon Brown, J., concurring) (emphasis added).

108 Greig v. Insole, [1978] 3 All E.R. 449, [1978] 1 W.L.R. 302.

109 See cases cited supra note 13. A national sports association “was obligated to follow the rules of an international sports federation.” Jensen v. USFSA, Civ. No. 85-C-1301S, at 12 (D. Utah 1990); see also Crouch v. NASCAR, 845 F.2d 397 (2d Cir. 1988); Bounds v. ECAC, 69 Misc. 2d 676, 330 N.Y.S.2d 453 (1972).

110 Spindulys v. Los Angeles Olympic Org. Comm., 175 Cal.App.3d 206, 220 Cal. Rptr. 565 (Cal. Ct. App. 1985); Ren-Guey v. Lake Placid 1980 Olympic Games, Inc., 49 N.Y.2d 771, 429 N.Y.S.2d 473, 403 N.E.2d 178 (1980).

111 Cowley v. Heatley, 1986 T.L.R. 430, 432.

112 Id.; Mclnnes, [1978] 3 All E.R. at 223.

113 Simma, supra note 11, at 584.

114 Cowley v. Heatley, 1986 T.L.R. 430 (interpretation of “domicile” in the constitution of the Commonwealth Games Federation); Reel v. Holder, [1981] 3 All E.R. 321 (review of “country” in IAAF rules); Greig v. Insole, [1978] 3 All E.R. 449, [1978] 1 W.L.R. 302 (the public has an interest in good management of sports organizations and competition).

115 See Vieweg, Book Review, 24 Int’l Law. 860, 861, 862 (1990).

116 W. M. Lawson & T. Thompson, The Lawson History of the America’s Cup—A Record of Fifty Years 279 (2d ed. 1986) (1902). On the history of the cup, see V. Hines, About the America’s Cup (1986); M. Rooklidge, Memorandum on the America’s Cup Litigation (Oct. 21, 1991) (unpub. ms. on file with author, for whose guidance the author is grateful).

117 America’s Cup Deed of Gift [hereinafter deed] (copy on file with author), reprinted in Johnson & Taylor, Revolutionizing Judicial Interpretation of Charitable Trusts: Applying Relational Contracts and Dynamic Interpretation to Cy Pres and America’s Cup Litigation, 74 Iowa L. Rev. 545, App. C (1989).

118 The original deed of gift dates from 1857. W. M. Lawson & T. Thompson, supra note 116, at 45. In 1882 and 1887, the cup was reconveyed to George L. Schuyler, one of its original donors, in order to modify the deed. The modifications included the addition of clauses that (1) require the challenging club to give 10 months’ notice of a challenge; (2) clarify that the successive winning clubs would be the successive defenders-trustees of the cup; and (3) establish a “mutual consent” provision, under which competing clubs could agree to ignore certain stipulations in the deed, including the 10 months’ notice requirement, but must otherwise comply with it. See J. Rousmaniere, The Golden Pastime: A New History of Yachting 123 (1986). See also New York Tribune, Races for the America’s Cup 3 (1893) (original deed and modifications of it in 1882 and 1887). The current version of the deed incorporates these modifications, as well as others made in 1956 and 1985 by the New York Supreme Court.

119 The load waterline is the contact line where the water meets the hull. For references and discus sion, see Recent Development, International Sports Competition: The America’s Cup 1988—The Legal Battle, 30 Harv. Int’l L.J. 264, 264 n.2 (1989) (quoting R. Henderson, Sail and Power 17 (3d ed. 1979)). The challenger must specify the owner, name and rig of the challenging vessel, as well as dimensions of the load waterline, waterline beam, maximum beam and draft of the challenging vessel.

120 In re application of New York Yacht Club for an order pursuant to Section 12 of the Personal Property Law, or otherwise, amending the terms of the Deed of Gift of the America’s Cup, No. 12,696/56 (N.Y. Sup. Ct. Oct. 1, 1956) [hereinafter NYYC Application] (reducing the minimum load waterline length from 65 to 44 feet in order to attract more competitors and eliminating a require ment that the challenging vessel sail to a match “on its own bottom”); In re Royal Perth Yacht Club, Nos. 18,436/84, 4615/85 (N.Y. Sup. Ct. Apr. 5, 1985) (permitting races to be held in the Southern Hemisphere and construing the term “arm of the sea” in the deed to include the Great Lakes, so as to widen potential Canadian participation).

121 In 1983 the Royal Perth Yacht Club of Australia (Royal Perth) had defeated the NYYC’s entry, thereby becoming the first non-American winner of the cup and successive trustee of the competition. Four years later, the San Diego Yacht Club (San Diego) defeated Royal Perth, obtained the cup and succeeded to the trusteeship.

122 Mercury Bay Boating Club v. San Diego Yacht Club, No. 21,299/87 (N.Y. Sup. Ct. Nov. 25, 1987).

123 Mercury Bay Boating Club v. San Diego Yacht Club, No. 21,299/87 (N.Y. Sup. Ct. July 25, 1988). The court rejected Mercury Bay’s contempt of court claim, refused to give an advisory opinion regarding the validity of a multihulled defense against a monohulled challenge, and ordered the rival clubs to reserve any further legal challenges until after their race. Because San Diego could wait to select its boat until the day of the first race, the court held that a decision would be premature; it would only “countenance continued bickering, and encourage further litigation.” Id., slip op. at 7.

124 Mercury Bay Boating Club v. San Diego Yacht Club, No. 21,299/87 (N.Y. Sup. Ct. Mar. 28, 1989).

125 Id. Contrary to the court’s previous holding based on the “letter” of the deed, it relied this time on the “spirit” of the deed. The court reasoned that the challenge provision of the deed would be meaningless if it simply served the defender with notice to build a superior vessel.

126 By stating that “to sail a multihulled vessel against a monohulled yacht … is, in the opinion of most boating authorities, to create a gross mismatch and, therefore, is violative of the donor’s primary purpose of fostering friendly competition.” Id. at 7–8.

127 The IYRU promulgates rules every four years that are then adopted by national yacht-racing unions (which may add to or modify the rules by “prescription”), such as the United States Yacht Racing Union. D. Perry, Understanding the Yacht Racing Rules Through 1992, at 23, 24, 269 (App. d, pt. I) (1989).

128 Mercury Bay Boating Club v. San Diego Yacht Club, 150 A.D.2d 82, 545 N.Y.S.2d 693 (1989) (nothing in the deed required evenly matched, “like or similar” vessels. Moreover, after earlier con troversies, trustees of the deed had adopted a resolution that confirmed the right of defenders to design and enter any vessel that complied with the terms of the deed).

129 Mercury Bay Boating Club v. San Diego Yacht Club, 76 N.Y.2d 256, 557 N.E.2d 87 (1990). See Note, The Litigation of the America’s Cup Runneth Over with Inconsistencies: A New Approach to Interpreting Charitable Trusts, 12 Loy. L.A. Ent. L.J. 221 (1992).

130 “The question of whether particular conduct is “sporting” or “fair” in the context of a particular sporting event … is wholly distinct from the question of whether it is legal.” 76 N.Y.2d at 265, 557 N.E.2d at 92. Thus, the court limited its decision to the narrow issue whether the original settlors had intended to exclude catamarans.

131 Id., 557 N.E.2d at 92. Correspondingly, the court noted, the deed contemplates that issues of fairness and sportsmanship are to be decided by the yachting community, whereas club rules or mutual consent provisions govern the terms for conducting a race.

132 Id. at 283, 557 N.E.2d at 103 (Hancock, J., dissenting); see also letter from George Schuyler to Commodore Bennett (March 1871) (discussing the propriety of the NYYC’s practice of racing a fleet of defending vessels against a sole challenger), reprinted in part in W. M. Lawson & T. Thompson, supra note 116, at 60, as follows:

I think that any candid person will admit that when the owners of the America sat down to write their letter of gift to the New York Yacht Club … [that person would not] think it very likely that [they intended that] any contestant for the cup, under conditions named by them, should be subjected to a trial, such as they themselves had considered unfair and unsportsmanlike.

133 76 N.Y.2d at 282, 557 N.E.2d at 102 (Hancock, J., dissenting). The dissent pointed out that (1) there had been a long-established custom of monohulled races; (2) the competing boats always bore “a close resemblance to each other with each vessel having a reasonable chance to win”; and (3) the load waterline lengths of the boats almost always had been nearly identical, as a matter of custom. Id., 557 N.E.2d at 102 (emphasis in original).

134 545 N.Y.S.2d at 710, 150 A.D.2d at 110 (Kassal, J., dissenting) (“The 1988 America’s Cup races were manifestly unfair in every sense. True sportsmanship and the integrity of this great sport demand far more, as does the very Deed of Gift by which this competition has been sponsored for over a century”; id. at 711, 150 A.D. at 111).

135 76 N.Y.2d at 273, 557 N.E.2d at 96.

136 Royal Perth Yacht Club of Western Australia and the San Diego Yacht Club, Assignment and Acceptance Agreement (Feb. 1987) (copy on file with the author). Each trustee, upon turning the cup over to a successful challenger as the new trustee, is supposedly bound by the deed to assign its rights as trustee to the new, successive trustee, which must agree to be bound by New York law.

137 N.Y. Est. Powers & Trusts Law §8-1.1 (McKinney 1992) [hereinafter N.Y. Trusts].

138 Restatement (Second) of Conflict of Laws §267 comment d (1969) (“[C]ourts of other states may exercise jurisdiction in proper cases if they have jurisdiction over the trustee, or if they have jurisdiction over trust assets insofar as interests in those assets are concerned”); see also id. §267 comment e; §272 comment on clause (a), clause (b). Jurisdiction elsewhere may be inferred from a trust’s provision for successive trustees in other jurisdictions. Id. §272 comment e. In this case, the original settlors of the cup specified neither an exclusive forum nor law to govern disputes, yet specifically allowed for foreign trustees. See G. G. Bogert & G. T. Bogert, The Law of Trusts and Trustees §§291–92, at 391–416 (2d rev. ed. 1977), for a discussion of judicial jurisdiction and choice of law regarding “multistate” trusts.

139 To create a charitable trust, the settlor must intend to create a trust for a charitable purpose. See Restatement (Second) of Trusts §351 (1959); N.Y. Trusts, supra note 137, §8-1.1. It is not surprising that the charitable nature of the trust was never questioned by parties to the America’s Cup litigation, for if the trust were not charitable, it might have been voided under the Rule against Perpetuities. See Johnson & Taylor, supra note 117, at 548 n.8 (citing Wilson v. Flowers, 58 N.J. 250, 277 A.2d 199 (1971)); W. McGovern, S. Kurtz & J. Rein, Wills, Trusts, and Estates §13.7, at 548 (1988).

140 At that time, only charitable gifts and not charitable trusts were legal in the state of New York. See Westmore v. Parker, 52 N.Y. 450, 458 (1873) (charitable corporation may receive personal property, provided that the gift of the principal is “immediate and vested”); Holmes v. Mead, 52 N.Y. 332, 339 (1873) (“The trusts retained are four in number, and … do not include perpetual trusts for charity, or for the benefit of classes or of corporations”). It was not until 1893, with the passage of the Tilden Act, 1893 N.Y. Laws ch. 701, that charitable trust law in New York was revived. G. G. Bogert & G. T. Bogert, supra note 138, §322, at 521–22 n.46; see also practice commentaries to N.Y. Trusts, supra note 137, §8-1.1.

141 In 1956, when applying for an amendment to the deed under the cy pres doctrine, the NYYC defined its “charitable” purpose as the advancement of yachting, naval architecture and “international good will and understanding.” NYYC Application, supra note 120.

142 Restatement (Second) of Trusts §374 comment n (“A trust merely for the promotion of sports is not charitable”) (emphasis added); G. G. Bogert & G. T. Bogert, supra note 138, §323, at 207’; see generally N.Y. Trusts, supra note 137, §8-1.1. The charitable purpose of trusts set up for the creation of prizes or awards, such as the America’s Cup, must appear from either the trust instrument itself or extrinsic evidence to resolve any ambiguity in the trust instrument. 15 Am. Jur. 2d Charities §66 (1976). In re Harmon’s Will, 80 N.Y.S.2d 903, 910–11 (1948), held that a trust under which trophies for a competition were to be awarded, was charitable, inasmuch as the donor had clearly intended to promote peace. See also In re Judd’s Estate, 274 N.Y.S. 902 (1934), aff’d, 270 N.Y. 516 (1936) (court found a charitable trust in the award of a prize).

143 While charitable trusts may be favored by law, the effect of the trust may be relevant in question ing a “charitable purpose.” G. G. Bogert & G. T. Bogert, supra note 138, §364, at 36–37 (“there must be no element of profit-making for individuals or non-charitable organizations”).

144 The deed of gift does not explicitly identify the beneficiaries of the trust. At the time the deed was executed, a failure to specify beneficiaries of a charitable trust might have been fatal. Under current New York law, however, a trust will not fail for lack of designated beneficiaries, N.Y. Trusts, supra note 137, §8-1.1, unless the public benefit is not evident. See, e.g., In re Shattuck, 193 N.Y. 446, 451, 454 (1908).

145 See D. Riggs, Keelhauled—The History of Unsportsmanlike Conduct and the America’s Cup (1986). Dennis Conner, captain of San Diego’s crew against Mercury Bay, declared that “[s]portsmanship is nonexistent [in the America’s Cup competition]. This isn’t tiddlywinks; it’s business … there has never been any sportsmanship in the America’s Cup. Anyone who thinks so is kidding himself.” No Match America’s Cup 1988, Life, Sept. 1989, at 85, quoted in Mercury Bay Boating Club, 76 N.Y.2d at 290, 557 N.E.2d at 107 (Hancock, J., dissenting).

146 While legal title vests in the trustee, see N.Y. Trusts, supra note 137, “the [inter vivos] settlor has the power to revoke the trust or to modify it only if he has reserved such a power, or if the omission to reserve such a power is due to a mistake.” 4A A. Scott, The Law of Trusts §367 (W. Fratcher 4th ed. 1989) (citations omitted) (emphasis added); see also id. §367.2 (modification ineffective even with the consent of the settlor and trustees); Restatement (Second) of Trusts §367 (1959).

147 See, e.g., the following appraisal from 1901: “The new deed is a mixture of bad sportsmanship, bad law and bad English, made in a hurry by a little clique, and never yet ratified by the New York Yacht Club. It is encumbered by meaningless legal verbiage, and its provisions are obscure and contradictory.” W. M. Lawson & T. Thompson, supra note 116, at 271.

148 This system was implemented for the first time during “World Championships,” which serve as a “wet run” for the America’s Cup races. The World Championships involve “fleet racing” as opposed to a one-on-one “match.” The May 1991 World Championships were won by an Italian entry. Tele phone interviews with Tom Wilson, Public Information Officer, San Diego Yacht Club (Sept. 26, 1991), and Terry Harper, General Counsel, America’s Cup Organizing Committee (June 6, 1991).

149 San Diego Yacht Club, Interpretive Resolution (Sept. 8, 1988) [hereinafter San Diego Protocol] implemented changes in the administration of the races, including the method by which a club may challenge the holder of the cup. First, multiple challenges will again be treated as if they had been received simultaneously. Second, challenging yacht clubs select a “Challenger of Record” to facilitate the negotiation of race terms under the “mutual consent” clause of the deed of gift. If the challenging clubs fail to select a challenger of record, the Trustees Committee does so. Third, the challenger not only proposes the dates, number of races, and type of course for them, but the “class of vessel … to be used by both the challengers and the defender” in the race. Finally, elimination races between all challengers determine the single challenger in the final race.

150 The committee’s membership is questionable. Without a system of recusal, a challenger might have to bring a dispute against a defender before a triumvirate on which the defender has one of three votes but on which the challenger is not assured of any representation.

151 The first rulings were (1) that the challenging club was required, without the defender’s approval, to name its boat ten months prior to the cup races; (2) that an Italian club could not conduct tank testing of its vessel in another country; and (3) that the races would feature a 75-foot “Interna tional America’s Cup Class” vessel. L.A. Times, Mar. 5, 1991, at 6, col. 4. Within a modified protocol, the leading issues that emerged from the 1992 America’s Cup involved challenge procedures, the exorbitant cost of competition, excessive secrecy, and the eligibility of sailors to race on boats of foreign nationality. The Trustees Committee agreed to seek resolution of these issues. Wash. Post, May 15, 1992, at C7, col. 5.

152 I am indebted to Klaus Vieweg for his advocacy of professional cooperation in prioritizing and harmonizing rules of international sports law with the assistance of comparative methodology. See Vieweg, supra note 115.