On Development of Legal Doctrine in the Field of Sport

Фотографии: 

I.V. Ponkin, Dr.Sc.Jur., professor of the chair of sports law of the Kutafin Moscow State Law University
International Institute of Public Service and Administration of the President of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation
O.A. Shevchenko, Ph.D., associate professor of the chair of labor law and social security law of the Kutafin Moscow State Law University, General Secretary of the International Association of Sports Law, Executive Secretary of the Committee of the Sports Law of the Association of Lawyers of Russia

Key words: legal doctrine, sport, athlete, public administration, public policy, hierarchies, risks, sports product.

Introduction

Sport in the modern world becomes increasingly popular. But at the same time it is rapidly getting a more complex internal structure of relations.

Being initially an aristocratic entertainment, sport from the early XX century has undergone an amazing expansion and remains one of the most prominent social phenomena of our time. It is largely democratized and now involves all social groups. At the same time, an international nature of sport is affirmed constantly and increasingly [3].

Annelise Nelson writes: "Today sport is "a circus for the public" [5].

Modern processes in sports and related, among others, to the transformation of sports into the sports industry, to the development and consolidation of positions of autonomous extralegal normative order in sports [13], competition of regulatory orders [1, p. 7], to the theoretically complicated structure of relations in sports, to the progressive financial and managerial capacity delay of the state in demand for infrastructure and maintenance services in this area, determine the relevance of a dynamic, poly-instrumental and operational state policy in this area.

But the development of such a policy requires a comprehensively stated, precisely balanced and scientifically grounded program system, which should be based on a specially developed legal doctrine.

Results of the review (justification of the content of the conceptual core of the doctrine and the need for its development and adoption)

Such a legal doctrine with respect to sports has not been developed in Russia at all so far. Only a part of the amount due has been scientifically comprehended and elaborated by A.A. Solovyov in 2009 within the monumental work done to develop the author's conception of the Russian Sports Code [15].

As Alexander Peczenik reasonably states, the goal of the legal doctrine in the Continental European law "is to systematize and interpret the existing law. Legal doctrine is almost always based on value judgments. Legal doctrine is a good example of the argumentation practice in pursuit of knowledge of the existing law, but in many cases leads to a change in the law" [6, p. 75].

In relation to sports, such a legal doctrine should first of all provide a detailed definition of "sport", reflecting the meaning conferred by the law (to be conferred) for an individual, family, public, society as a whole and the state, not only in the narrow legal discourse.

Friedrich Carl von Savigny wrote that "the essence of the system method lies in the knowledge and exposure of internal relation or kinship, combining the basic legal concept and regulations into one big complex" [7, p. xxxvi].

The exact origin of the word "sport" can hardly be detected and confirmed today. Any statements thereof are nothing else but guesses of specific authors.

According to Manoel Jose Gomez Tubino, the term "sport" is derived from the XIV century, when sailors went ashore to show and keep their physical skills, including some related to their hobbies (action games), that was called as "dis-port themselves" (in other words - to leave the port) [9, p. 8].

As Frederick Buy, Jean-Michel Marmayou, Didier Poracchia, et al. pointed out, in respect to etymology, the word “sport” acts as a derivative (apheresis) of the word "desport” [2, p. 5]. As Raymond Tomá wrote "in ancient French, this word meant recreation, entertainment or fun. In this form, it would cross the English Channel to join English language, becoming “Disport” and then “sport”. At first it meant pleasure activities common to nobility. Subsequently, it would take a different meaning and would be used only in relation to some disciplines, often cruel, interesting and peculiar to "common people" for whom it was livelihoods. It reappeared in France in the XIX century in its abbreviated form and represented various disciplines, such as horse racing, boxing or wrestling. At the dawn of the XX century and until 1960s, its meaning was expanded and covered all physical and sports activities, leisure and competition" ([8, p. 15]; quote transl. by: [16, p. 82]).

The etymology of the concept of "athlete" is also interesting.

In the Russian language, there is a preconceived idea that the word "athlete" is a pure borrowing (from English). Some authors, however, deny this fact, pointing to the typical for the Soviet period of 1920-30-ies mechanism of word formation and trace the etymology of the concept of "athlete" from the phrase "sports shift". Apparently, in this case, the truth is somewhere in the middle.

There are several publications [10, p. 136-142; 11, p. 146-158] on the meaning of the term "sport", but the issue is still open.

The legal doctrine in relation to sport, designed to ensure the harmonious development of sport, should be based on a fundamental rethinking of a wide range of problematic issues in the field of sports and should have the highest possible for the present conditions and relatively easily verifiable pragmatic relevance and validity, impeccable internal logic of composition and coherence of the main concepts and constructs and, which is very important, elaborative (i.e. tending to perfection) operationality. Pragmatic relevance (here) is the degree of usefulness and responsiveness. Validation is a confirmation on the basis of objective evidence that the requirements for a specific intended use or application have been fulfilled (state standard GOST R ISO 9001-2011). Validity is a measure of conformity of the methods applied and results of the goals.

Any escapism (going to the world of illusions about sport) should be eliminated. It is required to demythologize sport, but the unjustified use of only black colors should also be avoided. Sport still, with all its faults, is more positive than negative, and continues to develop positively in many ways.

Moreover, the required legal doctrine should, as we believe, correspond to 8 conceptual criteria of the "good concept" developed and proposed by political scientist John Guerin from Boston University in 1999:

"1. Popularity (usage). How famous is this concept (for a wide range of people or for an academic audience)?

2. Resonance. Does the selected as a basis key term of the concept have a "resonant circle"?

3. Capacious laconism: a) of the key term itself, and b) of the list of defined attributes (vectors).

4. Consistency. How internally consistent (logically consistent) are the items and attributed signs?

5. Differentiation. How differentiated are the objects and the attributed signs (unlike other comparable concepts)? How operationally limited ("operational") is the concept?

6. Depth. How many epiphenomena are attributed to subjects according to the definition?

7. Theoretical usefulness. How useful is the concept in a wider area of pragmatic relevance?

8. Conceptual scope of usefulness. How useful is the concept in the subject area of related cases and attributed signs?"([4, p. 367]; quote transl. by: [12, p. 80]).

Directly conceptual content of the developed legal doctrine should include or reflect the following meaningful segments and areas:

1) the concept of interpretation of the multidimensional concept of "sport", conceptualizing the reference area and underlying the entire considered legal doctrine;

2) complex of negative determinants and risks matrices:

– matrix of negative determinants in sport, including the risks of fundamental distortions and systemic dysfunctions of relations in sport;

– matrix of negative determinants of public administration dysfunction in the field of sports, as well as possible interferences and duplications of these negative determinants;

– matrix of negative determinants of self-comtrol dysfunction in the field of sports;

3) matrix of subjects of relations in the field of sports, as well as subordination and self-reference matrix in the relations between the subjects of sports;

4) sets of hierarchies:

– hierarchy of current fixed and expectational significant challenges and threats in the field of sports (to avoid dangerous imbalances when resolving them), those that can resist the prevention, damping and reduction by the instruments of state administration in the specified area;

– hierarchies and "horizontal layouts" of administrative competences, in order to separate and give precise reference to competences of the public administrative bodies (state and municipal) at various levels and different subordination, international and national (this country) governments in the field of sports (specific theoretical foundation in this part is given in works [13, 14]);

– a set of normative hierarchies - referencing relations of priority or consociation of norms of sports law and norms of extralegal normative regulation (lex sportiva), linked not only to the sports segments, but also to the main issues that require such referencing (labor relations in the field of sports, damage to health in sport, etc.);

5) a complex of concepts and descriptions of integral and distributed teleological framework and                   integrative sets of instruments of the "new" state policy and the "new" state administration (for more details see [12, p. 74-132]) in the field of sports, providing a harmonious and competitive development of sport, including elite sport, and mass sport, sport industry and other segments, as well as providing prevention, inhibition, damping and reduction of negative determinants from the field of sports; the concept of the public interest as the basis for goal setting in the state administration of sports;

6) the concept of understanding and interpretation of the future of sport and public administration in this area:

– expectation concept of relevant ontology of sport in the future and the future trends in the development of sport (implementation of the concept of "sports for a lifetime", fair play values, the spirit of competition and generally the humanistic content of sport, increase in the importance of sport as a determinant of social solidarity and a significant identical element of human civilization, as a segment of the media space, etc.);

– the concept of prognostic and expectation dynamic changes of specific features and ontology of sports (sports and entertainment) product, as well as sports and labor products (athletes, referees, coaches) (for more details see [16]);

– the concept of the "new" state administration of sports, development priorities of this administration (including the expansion priorities of the adapted sports coverage of more people and turning sports into a trend of quality of life and personal growth; state and private partnership in the field of sports; radical reformatting of the entire system of sports training and the entire sports infrastructure; development of the system of career trajectories of athletes, including periods after finishing the athletic career, development of sports and recreation clusters).

Conclusion

This paper, for the first time in the national law science, reveals the legal doctrine in the field of sports, designed to ensure the harmonious development of sports. In this regard, the authors, based on the fundamental rethinking of a wide range of problematic issues in the field of sports, suggest revealing its contents.

The direct conceptual content of the developed legal doctrine reflects meaningful segments and areas, including the interpretation concept of a multidimensional concept of "sports", conceptualizing the reference area and creating the basis for the entire considered legal doctrine; a complex of negative determinants and risks matrices; the matrix of subjects of relations in the field of sports, as well as submissive and self-reference matrix in the relationship between the subjects of sport; hierarchies complexes; sets of concepts and descriptions of integrative and distributed teleological framework and integrative instruments sets of the "new" state policy and the "new" state administration in the field of sports; the concept of understanding and interpretation of the future of sports and public administration in this area.

The authors believe the definition of these concepts and the development of the legal doctrine in sport as a whole will provide interconnection of scientific ideas, legislation and law enforcement, will create conditions for the internally consistent development of several branches of the Russian legislation, and will turn sports into a trend of life quality and a resource for personal growth.

Reference

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Corresponding authors: i@lenta.ru; labourlaw@bk.ru