Limits of state intervention and non-intervention in the sports field.
Sport needs support from both society and state. As Russian Minister for Sports Vitaliy Moutko once said, "Strengthening the role of the state in the regulation of sports allowed Russia to perform successfully in Sochi." (1)
The implementation of a governmental strategy for developing physical training and sports in the Russian Federation for the next years (2) confirms a high importance of sports in the lifestyle improvement in Russia. The strategy defines the main objectives and goals of implementing the State Policy in the sports field. The main objectives of the State Policy in this field should be: development of an organizational basis for sports, improvement of interaction between different entities in the aforementioned field, and improvement of the sports management system at every level.
In accordance with United Nations regulatory documents, public management is a process of realizing political, economic, and administrative power. Management may include any methods used by a society for the distribution of authorities, management of state resources, and the resolution of problems as they arise Public administration refers to the activity of a state authority, aimed at the achievement, implementation, and protection of public interests, as well as the realization of state functions, which include: integrated planning; legal support; implementation of legislative, executive/administrative, judicial, and control/ supervision power.
The development of social relationships in the sports field is a modern tendency observed in many different countries in the world. This increases connection between the role of state management-including state control--and the growing role of self-administration (including self-regulation). This interconnectedness is aimed at providing the necessary conditions for the stable functioning of national and international systems of sporting relationships, the protection of lawful public and private interests, as well as the preservation of commonly recognized esthetic values in the sports field. The complex interaction between two managing systems mentioned above warrants a need for a scientific study investigating their interaction mechanism.
The necessity of increasing the efficiency of state management in the sports field, which entails the improvement of a legislative and regulatory basis in this field, is also influenced by the conditions of social relationships and judicial practice in the sports field in Russia. This can lead to the serious problems occurrence, such as the lack of partnerships in the field of sports that possess a proper combination of administrative and self-management systems.
It is also worth mentioning an increasing role of non-state entities and their increasing involvement in the processes of state and social management, as well as in the development of public policy. According to that approach, the role of the state evolves from the main policy supplier to one of the entities, which advances the interaction between societal groups with different interests. Ultimately, the state's role may also involve the coordination and management of such processes. (3) As a result, the types of tools needed for effective state management require some modification.
As T.V. Milusheva writes, "the boundaries of state activity can be set not only by various segments of human activity, but also by specific features of the historical process, national traditions, geographic position of a state, and globalization issues." (4)
Currently, one of the most popular approaches to implementing public management is so-called "New" public management approach. The authors believe that the necessity of a "New" public administration (or public management) is determined by the circumstances described below.
--Objective indoctrination of a significant and increasing expansion in the field of public management with respect to the study of subject and object affairs. Presently, this direction is markedly visible, even when compared with the second half of the 20th century, during which the public management field saw the emergence of esoteric new branches in the area of subject and object relations. Yet, although this tendency was undoubtedly observed in the 20th century, it lacked the strong dynamics of the current inclination. Indeed, the sports field in most countries, the field of sports did not become either a subject or an object of public management until the middle of the 20th century. There are only a select few countries where it has been the case since the end of the 19th century. However, the financial resources of the public authorities are progressively becoming less suitable for the provision of full-scale public management in all new branches of subject and object relations, which lead to the deceleration or reversion of states' annual growth.
--Structural complexity of public management, resulting from the significant and increasing substantial cumulative complexity of the structure and content of public relationships in almost every segment of human life.
--Considerable complication of the structure and content of public management, caused by the increasing number of public services provided by the public administration after being objectively determined (from the position of their mandatory provision. Although the number of public services is commensurately growing with the demand for them, it is noteworthy that public authorities are much better with their duties than they were several decades ago, let alone a century ago.
--Emendation of public rules; complexity of the interconnection between national and international rules.
--Increasing in the number of legislative and regulatory management tasks.
--Diminishment of democratic principles and the power of the people.
--Growing interest for improving the efficiency of public management; growing demand for "customer-oriented" public services.
--Complexity of the economic segment; complexity and necessity of current planning; large diversification of public management tools.
--Significant development of information technologies in the field of public services provision.
What's more, the public management paradigm is highly susceptible to current changes in the system of values, regarding the role and purpose of public administration. The previously mentioned changes have been quite visible in the last decades, but are becoming even more pronounced in recent years.
The main significant features of the "New" public administration model ("New public management")--which is increasingly replacing the formerly established "conventional" public management model implemented by the public administration (a system of State and municipal management bodies) are summarized below. The review of these features is presented in congruence with elements of the authors' collective perspective on the "New" public management paradigm:
--Implementation of the "good" public management concept;
--Systematic simplification of legislation (as one of the elements and inherent tools of the "New" public management model);
--Reduction in the overall number of narrowing of segments specializations and branches in the public management field, specifically in the area of subject and object affairs;
--Transfer of an increasing large number of its functions and powers from the public administration to non-State operators, such as self-managed, private, and State/private organizations (e.g. self-managed organizations in the fields of financial markets, wine industry, and sports);
--Functions and powers that are shifted--those, which have historically and conventionally been included in the state competency;
--Transfer of a growing number of responsibilities from public administration to market mechanisms, based on the assumption that such market mechanisms can better adapt to the conditions of a permanently changing environment;
--Appropriation of a subsidiary principle through the provision of public services, including the partial transfer of public service authorities' total work volume to private operators;
--Development of state/private partnership as an element and tool of the "New" public management model (state/private partnership in the field of transportation infrastructure, private intelligence services, private armies, etc.);
--Intensification of communication between state management and other types of social management;
--Broadening and elaboration of collaborative interaction between public management and self-management;
--Interrelation and cooperation between public management and independent, non-legislative regulatory rules, as well as the development of guaranties and mechanisms for independent institutions;
--Extension and enrichment of the interaction between State law and other (non-State) regulatory systems (lex sportiva, lex mercatoria, lex canonica, etc.);
--Implementation and progressive development of the "electronic state" concept, and an increase in the scope and variety of electronic public services provided by the public administration;
--Increase in requirements for public management reporting, as public management is growing subject to permanent societal control;
--Significant development of the "line" of public management tools (measures, means, and mechanisms);
--Increase in the variety of public management tool modifications and the complexity of their combinations (including interference and multiplicative effects);
--Implementation of business strategies and other approaches and tools formerly used in business and corporate management by public authorities (strategic planning, performance indicators, etc.);
--Reduction of bureaucracy (management restructuring aimed at focusing on results, rather than on process);
--Implementation of a results-based management concept, including a line of new mechanisms for quantifying and assessing public management performance;
--Increased acceptance of and responsiveness to public interests and social demands that can emerge in various segments of social relationships;
--One of the most important principles involved in functioning, reproduction, and development of the abovementioned model is that of sports autonomy.
According to the overwhelming opinion of most specialists, the principle of sports autonomy, based on freedom from public authority (state authorities and local, or municipal, authorities) is one of the tenets on which the entire sporting business is based.
It is exactly this principle that enables the systematization and delimitation of the relations between individuals, society, and a government in the field of sports, while preventing or reducing any imbalance in such relations. Therefore, the key feature of interrelation between public administration and self-administration in the sports field concerns the limitation (restriction) of public administration in the mentioned field. The principle of sports autonomy is represented by the existence of autonomous extralegal regulation in the field of sports. A basic component of such regulation is recognized and guaranteed by a state, whereas the remaining parts may be allowed by a state, depending on a chosen sport management model.
The term <<autonomy>>, with reference to sports, was first registered in the Olympic Charter of 1949 and applied to the national Olympic committees. So, pursuant to article 25 of the 1949 Olympic Charter, the independence and autonomy were among the principal demands made in organizing the national Olympic committees. (5)
According to Enrico Lubrano, "Sports autonomy is essentially a barrier for intervention by the legal system, with its legal norms and related legal instruments, in the area protected by relevant regulations (in terms of Inigo and Alberto Marani Toro's (6) concept, sports regulations), provided the actions and decisions did not lose their productivity." (7)
One of the most comprehensive definitions of the autonomy of sport is given in the monograph by Jean-Loup Chappelet who defines it in the national, European, and transnational context as <<the possibility for non-governmental, nonprofit-making sports organizations to:
1) establish, amend and interpret rules appropriate to their sport freely, without undue political or economic influence;
2) choose their leaders democratically, without interference by states or third parties;
3) obtain adequate funds from public or other sources, without disproportionate obligations;
4) use these funds to achieve objectives and carry on activities chosen without severe external constraints;
5) draw up, in consultation with the public authorities, legitimate standards proportionate to the fulfilment of these objectives.>> (8)
In the opinion of the authors, sports autonomy is an regulatory feature of the sporting arena, which represents a decentralization of public relations in this field, a relative autonomy of sport, and sport's independence from public power. That independence should be regarded in terms of legislation, law application, institutional structure, organization, functioning, finance, economy, politics, and ideology, as well as independence from political organizations, religious associations, and business organizations, including independence from their sanctions, intervention, and pressure).
However, the state is a very important player in the sports field. In particular, by adopting the relevant laws and political programs, ensuring the development of the required infrastructure, and implementing economic and social policy, a state is able to promote and encourage involvement in some sporting events, while simultaneously prohibiting other sport events (or at the least, depriving them of any developmental opportunities). (9)
B.D. McPherson, J.E. Curtis, and J.W. Loy have noted that state intervention in the sports field has been observed in many countries throughout history. For example, the government of the city-states in ancient Greece used sport to enhance the fitness of their citizens for war and to demonstrate their superiority over other city-states and the early part of the Roman era, sport was used for military fitness; in the later years the ruling elites produced sport-like events to entertain and thereby control the masses. (10)
According to Anneliese Nelson, societal opinion, culture and national pride have always driven state control over sport. Today, sport is a "circus for the masses." Most of humanity is uplifted when viewing their favourite team or partaking in the sport of their choice in their free time. The State has a careful balance to maintain between regulating for protection of the public while recognising the value of choice in increasingly societies. (11)
According to Chien-Yu Lin, Ping-Chao Lee, and Hui-Fang Nai, modern state intervention in the sports field is often employed for the purpose of demonstrating a social, political, or economic standard of living. (12)
In contemporary professional sports, the development of sustainable public relations in the sports field that function in line with public interests cannot be accomplished without public administration, including administrative, criminal, and civil law regulation in the field of sports, which can only occur under the following conditions:
1. Requirements for a social state. This should result in the enhancement of quality of life and public health (through prevention of diseases by engagement in sports).
2. Requirement for rule of law and order in the sports field, with the intent of preventing crimes (corruption, circulation and distribution of prohibited substances, etc.) and administrative offences.
At the same time, an active and efficient State influence is needed for the process of significantly sophisticating the structure of public relations in the sports field and actualizing the solutions to any related problems. This is needed for a prevention of offenses and the resolution of potential problems because it is nearly impossible to effectively counteract those offenses in the field of sports using solely self-governing and self-regulating mechanisms.
3. Requirement for protecting the health of athletes, in the terms of restrictions on the use of performance-enhancing drugs.
A legislative ban on drugs in sports is normally imposed to prevent damage to the health of athletes. Typically, most of the performance-enhancing drugs prohibited by national sports law are not prohibited by criminal law. (13)
4. Requirement for protecting the health of athletes through the introduction of restrictions on especially tough sporting events and on types of sports that involve a high risk to the health and lives of athletes. (14)
Anneliese Nelson notes that speaking about state intervention in sports via legal regulation of sport events, we should first mention combat sports (i.e. those involving fighting), which, from a legal perspective, are granted a certain exception by the state. Although such sports call for striking blows on the opponent, which may make him defenseless, the criminal laws prohibiting murder and the infliction of harm to a person's health do not apply here. In a number of countries, special laws on boxing and other types of fighting sports provide for significant restrictions on the licensing of boxing matches and similar sporting events, in addition to imposing requirements for the physical condition of participants of such events. The purpose of such laws is to exercise some level of control over professional boxing and other fighting sports, in order to promote safety and reduce the risk of improper conduct on the part of athletes and their managers. (15)
5. Requirement for protecting the labor rights of athletes. (16)
6. Requirement for creating the conditions necessary for development. As the sports field develops, it will continue to deal even more with the business field, notwithstanding that the sports industry already accounts for a significant segment of national economics.
7. Requirement for the protection of public morality and a need for special games and sport events regulation.
8. Requirements for the order protection during sport events.
A state therefore not only possesses public interests, but also maintains administrative functions, in the field of sports.
It is clear that state involvement is very important for the promotion and management of sports. In addition, the state has an invested interest in various resources provided by the sports field that are important for public power, including the resources related to economic and social fields of study, as well as to constructive redirection of the social energy of the masses.
That is why the question of researching acceptable mechanisms for ensuring a balance of interests in the sports field is still highly topical. It is becoming even more relevant in the modern conditions of of interplay between public order and autonomous extralegal regulation in the sports field.
The principle of the sports autonomy reflects independence from public authorities and is one of the basic principles of the sport business. This principle enables the systematization and delimitation of the relations between individuals, society, and government in the sports field, while preventing or reducing any imbalance in such relations. Thus, the key feature of interrelation between public administration and self-administration in the sports field is the limitation (restriction) of public administration, which should mean autonomy principle with the autonomous extralegal regulation. A basic component of such regulation is recognized and guaranteed by a state, whereas the remaining parts can be allowed by a state, depending on the chosen sport management model. Consequently, the state should have plenty of administrative functions in the field of sports. In modern professional sports, the development of sustainable public relations that function in line with public interests cannot be accomplished without public administration, including administrative, criminal, and civil law regulation in the sports field.
Chappelet JL, Autonomy of Sport in Europe (Council of Europe Publishing 2010)
Directive of the Government of the Russian Federation No. 1101-r, 'Approval of the Strategy of Development of Physical Training and Sports in the RF for the Period until 2020'  33
Kidd B, 'The Canadian State and Sport: The Dilemma of Intervention' (2013) Sport in Soc: Cultures, Commerce, Media, Politics 362
Lin CY, Lee PC, Nai HF, 'Theorizing the Role of Sport in State-Politics' (2009) International Journal of Sport and Exercise Science 23
Lubrano E, 'Il Tribunale Nazionale Arbitrale per lo Sport (TNAS): Analisi della Giurisprudenza (2009-2010) e della Natura delle Relative Decisioni (2010) 3 Rivista di Diritto ed Economia dello Sport' 6. (E Lubrano, 'The National Court of Arbitration for Sport (TNAS): Analysis of the Law (2009-2010) and the Relative Nature of Decisions (2010) 3 Journal of Law and Economics of Sport' 6)
Lyall C, Papaioannou T and Smith J, The Limits to Governance: The Challenge of Policy-Making for the New Life Sci (Ashgate Publ Ltd 2009)
Management Dev and Gov Div Bureau for Policy and Prog Support 'Reconceptualizing Governance, Discussion Paper 2' (1997) 9 UN Dev Prog
McPherson BD, Curtis JE and Loy JW, The Social Significance of Sport: An Intro to the Sociology of Sport (Human Kinetics Books 1989)
Milusheva TV, 'Predely I ogranicheniya gosudarstvennoy vlasti (teoretiko pravovoe issledovanie) / Dissertatsya. Saratov, 2012 (TV Milusheva, 'Limitations and Boundaries of State Power: theoretical and law study' (DPhil thesis, Saratov 2012))
Nelson A, 'When, Where and Why Does the State Intervene in Sport: A Contemporary Perspective' (2005) Bond University 1
Shevchenko O.A. Osobennosti pravovogo regulirovaniya truda v sfere professional'nogo sporta. M.: Commission on Sports Law of the Association of Lawyers of Russia 2013 (Shevchenko OA, The Features of Labor Regulation in the Professional Sports Sphere (Commission on Sports Law of the Association of Lawyers of Russia 2013))
Soloviev A.A. Pravovoe regulirovanie sportivnyh edinoborstv: opyt SShA i Kanady / M.: Komissiya po sportivnomu pravu; Assotsiatsyya yuristov v Rossii; Natsional'noye obedinenie sportivnykh yurisrov; Federatsyya kikboksinga v Rossii, 2013 (AA Soloviev, Law Regulation of Combat Sports: Experiences of the USA and Canada (The Commission on sports law Association of lawyers of Russia; National Association of sports lawyers; kickboxing Federation of Russia 2013))
Starodoubtsev A, 'Moutko: Increased Govt Role in Regulation of Sports has Allowed for a Successful Outing in Sochi' (Itar-Tass, 23 April 2014) <http://itartass.com/sport/1141037> accessed 22 June 2014
Toro IM, Toro AM, Gli Ordinamenti Sportivi (Giuffre ed, 1977)
By Igor Ponkin, Alena Ponkina
Doctor of science (Law), Russian Presidential Academy of Public Administration, 2004
Professor, Kutafin Moscow State Law University
PhD (Law), Russian Presidential Academy of National Economy and Public Administration, 2013
Lecturer of Sports Law, Kutafin Moscow State Law University
(1) http://itar-tass.com/sport/1141037 accessed 23 April 2014.
(2) Directive of the Government of the Russian Federation No. 1101-r, 'Approval of the Strategy of Development of Physical Training and Sports in the Russian Federation for the Period until 2020'  33.
(3) C Lyall, T Papaioannou and J Smith, The Limits to Governance: The Challenge of Policy-Making for the New Life Sci (Ashgate Publ Ltd 2009) 3.
(4) Milusheva T.V. Predely i ogranicheniya gosudarstvennoy vlasti (teoretiko pravovoe issledovanie) / Dissertatsya. Saratov, 2012 (TV Milusheva, Limitations and Boundaries of State Power: theoretical and law study (DPhil thesis, Saratov 2011)).
(5) JL Chappelet, Autonomy of Sport in Europe (Council of Europe Publishing 2010) 11.
(6) IM Toro, AM Toro, Gli Ordinamenti Sportivi (Giuffre ed, 1977) 14.
(7) E Lubrano, 'Il Tribunale Nazionale Arbitrale per lo Sport (TNAS): Analisi della Giurisprudenza (2009-2010) e della Natura delle Relative Decisioni (2010) 3 Rivista di Diritto ed Economia dello Sport' 6. (E Lubrano, 'The National Court of Arbitration for Sport (TNAS): Analysis of the Law (2009-2010) and the Relative Nature of Decisions (2010) 3 Journal of Law and Economics of Sport' 6).
(8) Chappelet (n 6) 49.
(9) B Kidd, 'The Canadian State and Sport: The Dilemma of Intervention' (2013) Sport in Soc: Cultures, Commerce, Media, Politics 362.
(10) BD McPherson, JE Curtis and JW Loy, The Social Significance of Sport: An Intro to the Sociology of Sport (Human Kinetics Books 1989).
(11) A Nelson, 'When, Where and Why Does the State Intervene in Sport: A Contemporary Perspective' (2005) Bond University 1.
(12) CY Lin, PC Lee, HF Nai, 'Theorizing the Role of Sport in State-Politics' (2009) International Journal of Sport and Exercise Science 23.
(13) Nelson (n 12) 9.
(14) Soloviev A.A. Pravovoe regulirovanie sportivnyh edinoborstv: opyt SShA i Kanady / M.: Komissiya po sportivnomu pravu; Assotsiatsyya yuristov v Rossii; Natsional'noye obedinenie sportivnykh yurisrov; Federatsyya kikboksinga v Rossii, 2013 (AA Soloviev, Law Regulation of Combat Sports: Experiences of the USA and Canada (The Commission on sports law Association of lawyers of Russia; National Association of sports lawyers; kickboxing Federation of Russia 2013)).
(15) A Nelson (n 12) 3.
(16) Shevchenko O.A. Osobennosti pravovogo regulirovaniya truda v sfere professional'nogo sporta. M.: Commission on Sports Law of the Association of Lawyers of Russia 2013 (OA Shevchenko, The Features of Labor Regulation in the Professional Sports Sphere (Commission on Sports Law of the Association of Lawyers of Russia 2013)).
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|Author:||Ponkin, Igor; Ponkina, Alena|
|Publication:||Kutafin University Law Review|
|Date:||Sep 1, 2014|
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