What is a sport?
A simple, yet highly useful question, at least from a legal perspective. Why?
Because when an activity is recognised by law or by the courts as a sport, different legal, commercial, financial and fiscal standards apply.
But how does one decide whether a specific activity is a sport and not just a recreational activity? Why is boxing a sport and not the French ‘petanque’?
As reported in the very instructive book Sports Law by Simon Gardiner et al.* (which we strongly recommend to anybody interested in sports law), the term ‘sport’ derives from the French-derived Middle English verb sportem, ‘to divert,’ and the Latin term desporto, literally ‘to carry away’. The emphasis here is on distraction, or something that gives pleasure.
But, first of all who decides what ‘sports’ means? Private parties, the government and/or the courts?
Role of the government?
Not that simple. Indeed, in some countries the government has a much more hands-on approach than in other countries. Often this even becomes a national priority. As such, within Europe, it is fascinating to note that Mediterranean countries (the exception being Italy) have a tradition of specific, direct state regulation, versus countries where common law is the king, where government involvement in sport betrays a more laid-back style (though lately in Great Britain regulatory movements are to be observed).
But let us return to the question of defining the term ‘sport’.
In English law and other common law jurisdictions, there seems not to be a single legal definition of the term ‘sport’. However experts seem to recognise that a few criteria have to be present for courts to recognise a specific activity as a sport. These criteria include, inter alia, the following items:
1. the activity must be unique-2. it must be accessible-3. it must be physical, 4. the activity has established rules and organized competition and finally,-5. the activity includes strategy and tactics as elements for success.
As an example, the European Sports Charter provides a definition of ‘sports’ :‘all forms of physical activity which through casual or organized participation aim at expressing and improving physical and mental well-being, forming social relationships or obtaining results at the competitive level’.
As for the civil jurisdictions, the legislator has preferred in the majority of jurisdictions, to let the courts decide if an activity is considered as a sport or not. In that regard, lets just note that the French ‘Code du Sport‘ does not contain a specific definition of the term ‘sport’. It has been argued that it was not due to a lack of memory of the French legislator (!) but rather to the desire of the government not to deprive future physical activities from being designated as ‘sports’. Furthermore, we have noticed that courts in civil jurisdictions seem to apply the same 5 qualifications items as in common law jurisdictions. But, the decisions are very diverse.
As an example, just in France, for some judges paragliding is a sport and for others, it is not…
In conclusion, deciding whether an activity is a sport is still a very popular debate in front of the courts .
*Sports Law, third edition by Simon Gardiner and others, Cavendish publishing 2006
- Warren Zola on “The Summer of Sports Law” (ctsportslaw.com)