Miroslav Imbrišević
Open University, UK
The Jurisprudence of Sport: Sports and Games as Legal Systems
625 pages, paperback
St. Paul, MN: West Academic Publishing 2021 (American Casebook Series)
ISBN 978-1-68467-890-7
The ‘jurisprudence of sport’ is a recent academic subject and still in its infancy. The term ‘jurisprudence of sport’ (JOS) was introduced in 2011 by Mitch Berman, one of the authors of the book. It is both an area of study and a method of study. Sport, understood as a system of rules, as a kind of legal system, is an area of study. Different sports, just like different legal systems, will sometimes present ‘competing’ solutions to a problem. As a method it can be fruitful to look at sport from the viewpoint of a lawyer. By analogy, think of psychoanalysis, which is an area of study (of the mind), but also a method, e.g., to interpret literature.
The JOS can provide insights into the nature of sport; but it can also tell us something about the legal realm, when we compare and contrast these two spheres. For example, the problem of political obligation, particularly the obligation to obey the law, has been solved in the normative system of sport: athletes consent, either implicitly or explicitly (Olympic oath) to obey the rules. Kathleen Pearson (1973: 117; also Fraleigh, 1982: 41) likens the agreement (usually an implicit promise) among players – to abide by the rules of the game – to a contract. Where Locke’s construction of the notion of ‘tacit consent’ to obey the law failed, the normative system of sport succeeds. The other two political obligations, good citizenship and loyalty, find their expression in sport through notions such as the spirit of the game, sportsmanship, and the idea of fair play.
As a method of study the JOS provides tools (well established legal categories) which help us to analyse and solve hard (and soft) problems in sport. For example, both David Fraser (1993) and the Italian legal scholar Anna di Giandomenico (2022i) have suggested that Hans Kelsen’s ‘basic norm’ (Grundnorm) has an equivalent in sport: fair play. This norm explains how the normativity of sport arises. It explains how fair play delivers fairness in competition, but also safety when it comes to categorisation (e.g. male/female; junior/senior; the weight categories in boxing).
Legal scholars (e.g., H.L.A. Hart, Joseph Raz, Ronald Dworkin) frequently refer to sports to illuminate legal issues. The first in-depth analysis of a particular sport as a legal system is the book ‘Cricket and the Law’ by the legal scholar David Fraser (first published in 1993). However, the JOS is not a purely Anglo-American affair. In 2003, a German collection of essays was published, entitled ‘Recht und Spielregeln’ (Law and Game Rules), edited by Andreas von Arnauld.
Structure of the book
The authors, both legal scholars, state that their textbook (p. 4) ‘is about the surprising and valuable lessons we might learn about sports by thinking hard about law – and about the lessons we can learn about law by investigating sports.’ The book is primarily intended for law students, but could also be used in courses about the philosophy of sport.
This is a substantial tome of 601 pages. It is organised into five parts, made up by 17 Chapters. For some mysterious reason the publisher refused to send out a physical copy of the book to me. Instead, I had to download the software (a reader) as well as an electronic copy of the book. But the silver lining is that this gave me a chance to assess how well the reader works, assuming that most students will have electronic access to the book. It took me a while to get to grips with it, but this is probably age related. Useful features are that you can highlight text, copy and paste, create flash cards, perform a word search, and you can switch to listening mode (the voice is a bit robotic, though). The software for this book offers a dyslexic font – a great innovation. My review will be a general survey, since this is a textbook of substantial length, but I will pay closer attention to chapter 7: ‘Sex and Gender’.
For example, the problem of political obligation, particularly the obligation to obey the law, has been solved in the normative system of sport: athletes consent, either implicitly or explicitly (Olympic oath) to obey the rules.
Part I, ‘Fundamentals’, tackles questions like ‘What is a sport?’ and ‘What is a game?’. Part II, ‘Structuring the Competition’, is about game design. What are the most important considerations for gamewrights? Part III, ‘Officiating’ is about the role and authority of officials, including the use of VAR and other methods of correcting refereeing errors. In part IV, ‘Playing the Game’, the authors examine (p. 5) ‘the oft-invoked but poorly understood concepts of cheating, gamesmanship, and sportsmanship.’ Part V, ‘Outside the Lines’, focuses on two issues (p. 5): ‘the regulation of athletes’ off-field conduct; and the keeping of records and bestowing of athletic honors.’
In this book students will learn a lot about the law – and about sports. The volume starts with a discussion of sport/s and its relation to games. This is an exercise in conceptual analysis, but it also equips the student with a good understanding of the nature and essence of sport. The authors end the chapter by asking students to imagine that they are a sports writer at a local newspaper: ‘write a brief memo to the lead editor explaining why cigar-smoking competitions aren’t sporting events’, taking into account what the Staff Handbook says about such issues. This is a good way to ease students into academic writing: provide reasons, based on facts/evidence to decide on a practical issue. The students have to take a position on the nature of sport (conceptual analysis) and familiarise themselves with employment law. In each chapter the authors introduce a topic, but also give students food for thought by interspersing the presentation with fundamental and specific questions which arise from the issue at hand. Often, this is done by providing classic readings/excerpts from court cases (sometimes supplemented by video links to a particular incident in sport). This is an excellent feature of the book – it encourages independent thinking by students and it helps the instructor by providing a framework for discussion and inquiry.
The authors use two icons throughout the text to highlight the introduction of new legal concepts (the toolbox icon: a true definition versus a family resemblance; the method of reflective equilibrium, etc.) and specific legal problems (the scales of justice icon: contracts as promises; incarceration as a collective sanction, etc.).
In chapter 2 the students are looking at a case about golf which went all the way to the US Supreme Court: does it change the nature of golf if a disabled golfer is permitted the use of a golf cart rather than walking the course? The court had to decide whether the use of a cart, for this particular golfer, would give him an unfair advantage. The authors provide excerpts from the majority decision as well as the dissenting opinion. This contrast is pedagogically useful, because it reminds students how our reasoning can differ. This is followed by a ‘comments and questions section’, highlighting some of the issues which arise. Thus, chapter 2 builds on what was discussed in chapter 1: the nature and essence of sport. This is how a good textbook should be structured.
In chapter 3 the authors investigate the goals and constraints faced by gamewrights. They discuss seven issues:
(1) promoting fairness; (2) facilitating, honing, and rewarding the exercise of skills; (3) presenting optimal challenges; (4) fostering excitement; (5) ensuring uniformity of challenge across time, space, and skill level, or, contrariwise, encouraging diversity of experience; (6) ensuring the health and safety of participants, or, alternatively, providing opportunities for pain and danger; and (7) making the rules readily administrable.
This is followed by an assignment for the student: to design an intramural student bowling league, taking the previous discussion into account. The authors occasionally break up the usual structure of the chapters; here they add an excursus about a rule of baseball: ‘The Common Law Origins of the Infield Fly Rule’. This famous ‘Aside’ was published in the University of Pennsylvania Law Review (1975). The short article compares the origins and development of the Infield Fly Rule with how the common law develops – all done with a sense of humour. The humour aids the learning process, but the revelation that this originally unattributed note was written by a law student should motivate students in their own writing.
This is a good way to ease students into academic writing: provide reasons, based on facts/evidence to decide on a practical issue.
The book gives the instructor enough scope to pursue their own themes. There is a discussion in chapter 3 about rule changes in sport and why these are normally prospective and not retrospective. For the law/philosophy instructor this could invite a general analysis on why laws are prospective. But it would also fit in with the specific issue of human rights abuses under the protection of ‘law’ (Nazi laws), or the immunity which the Argentinian generals awarded themselves by law (retrospectively) and which was declared null and void twenty years later.
The book is a rich resource about sports event which had normative significance. The examples are taken from popular team sports and individual sports, as well as games (baseball, football, soccer, tennis, golf, gymnastics, chess, boxing, and esports), but also from other events, like competitive eating. This much for the structure of the book and its chapters.
Sex and gender
The hottest topic in the book is without a doubt section C, ‘Sex and Gender’, of Chapter 7, which is about eligibility. The authors rightly point out that exclusion (based on categories) is justified in sport, because it actually facilitates ‘maximal inclusion’ as Parry & Martínková (2021) put it. Berman & Friedman write (p. 247):
allowing weight classes permits a wider range of athletes to take part in a sport. In boxing, for example, were there no weight classes there would be many fewer professional or amateur boxers participating in competitive matches because, by and large, a person who is featherweight would lose to a heavyweight, even if the latter were of considerably lower talent.
There is an extensive discussion of intersex athletes, as well as a section on transgender athletes. I will focus on the latter, because some of the material will have to be supplemented by recent research, changes by sports governing bodies and new developments in law and society.
The authors write (p. 265):
It is also important to know that any strength and endurance advantages a transgender woman arguably may have as a result of her prior testosterone levels dissipate after about one year of estrogen or testosterone-suppression therapy. According to medical experts on this issue, the assumption that a transgender woman competing on a women’s team would have a competitive advantage outside the range of performance and competitive advantage or disadvantage that already exists among female athletes is not supported by evidence.
Testosterone levels are not a good marker for physiological advantage – something I have discussed two years ago on idrottsforum.org. Recent research shows (World Rugby 2020, Pike 2020, Hilton & Lundberg 2021, Harper et al 2021) that having gone through male puberty affords the athlete – on average – a considerable performance advantage. These studies show that even after one year of testosterone-suppressing drugs, there remains a large performance advantage. One study (Roberts et al, 2021) shows that after a year of hormone treatment, transmen (i.e., biological females) catch up with their male peers and even outperform them in some tasks: ‘the number of sit-ups performed in 1 min by transmen exceeded the average performance of their male counterparts’. Synthetic testosterone can be used to enhance performance (doping) as previously demonstrated by female athletes from East Germany, but the reduction of natural testosterone in males does not work to remove their considerable physiological advantage, and thus to create fair conditions of competition.
Parry & Martínková (2021) distinguish category advantages from competitive advantages. Some people will have competitive advantages within their sport (Michael Phelps, Usain Bolt are well known examples), but we can live with that because the winning margins are tolerable – athletes have a fair chance to win. It’s different with category advantages; we create categories (male/female, and sub-categories: age, weight, disability) to ensure that the result of competition is not a foregone conclusion: we do not permit heavyweights to compete against featherweights. Allowing transwomen to compete in the female category means that they carry their category advantage (male physiology) into the female category; being a transwoman is not just another – intra-category – competitive advantage like being tall, short, flexible, etc.
Since 2004 the IOC accepts trans athletes into the categories they identify with. One of the conditions to be met is that their new gender has been legally recognised. In legal documents their biological sex, ‘male’, may now be altered to ‘female’. This makes them formally eligible to compete in the female category. What has changed is their legal status, but not their male physiology (regardless of any hormone treatment or gender reassignment surgery). Legislators and lawyers understand that the state has created a legal fiction (fictio legis) in this instance. The state now treats a biological male ‘as if’ that person were female. Recognising this would give the instructor an opportunity to discuss this important concept (‘legal fiction’), which goes back to Roman law.
If it is the case that we test bodies (sorted into categories) rather than gender identities in sport, then the eligibility claims of transwomen need further scrutiny (see Martínková et al 2021). British and Australian legislation permits the exclusion of transwomen athletes from the female category. If the state recognised that transwomen were ‘women’ in all respects, then such exceptions would have no basis. But in both legal systems the state acknowledges that the legal recognition relies on a legal fiction – this makes exclusion possible. In other legislations, where there are no exceptions, i.e. no acknowledgement of the underlying legal fiction, transwomen would be eligible – by law – to compete in the female category.
Allowing transwomen to compete in the female category means that they carry their category advantage (male physiology) into the female category; being a transwoman is not just another – intra-category – competitive advantage like being tall, short, flexible, etc.
Predictably, the IOC announced recently that transwomen will no longer need to reduce testosterone levels. The reason given was that ‘there should be no presumption that trans women have an automatic advantage over natal women.’ The policy of giving up on testosterone is right, but the IOC’s justification is not. A better justification for such a policy is: 1. Testosterone reduction is ineffective as a performance marker; 2. It is a violation of bodily integrity. Many trans people rightly refuse any interference with their bodily integrity, similarly to athletes with DSDs. After all, changing the natural hormonal balance of your body can have serious (long-term) health implications. Is this a human rights violation? These are themes that instructors may want to discuss in this section of the book, because some governing bodies still cling to testosterone levels.
Another theme worth discussing would be: Is sport a human right (as claimed by the IOC), and is there a human right to compete in the sex category of your chosen gender (as claimed by many trans athletes and activists? This issue is only briefly mentioned on p. 269.
And lastly, do athletes have a right to protest or object to the inclusion of transwomen on their team? Rule 50 of the Olympic Charter prohibits protest. And the team mates of trans swimmer Lia Thomas have been told not to speak up about their concerns. Articulating particular views about sex and gender has implications for free speech and academic freedom. When an athlete expresses gender-critical views, is this ‘worthy of respect in a democratic society’ (see the Maya Forstater case), and how does this affect academic freedom? What happens if an academic takes a gender-critical view about transwomen athletes (see the Donna Hughes case)?
Some pedagogical aspects
Our generation is part of the visual age; 600 pages of relentless text is a hard slog for students. The text could be broken up with the occasional photo (athletes/significant sporting moments) or cartoons (humour helps retention). Considering that the future of teaching might be moving more and more to the internet and to self-study, it would be desirable to incorporate online exercises (linked to each chapter) which students could complete themselves and which include a solution, similar to the structure of many MOOCs. This takes the pressure off the instructor, both in class and when assigning work out of class. But it also gives the student (and the instructor) an idea about comprehension and progress during the course. This would be especially suitable for the electronic version of the book. In the print editions you could just add the solutions at the end of the book, or provide an online link.
It is a charming aspect of the book that the authors take their role as teachers seriously and teach something more (e.g. grammar) than would be required of them. They quote an NBA rule: ‘No team may be reduced to less [that should be “fewer”!] than five players.’
Conclusion
The book is ostensibly designed for law students, but the variety of topics and the richness of the material will equally appeal to students of philosophy (of sport) or sports studies: e.g. in chapter 3, the sections on ‘excitement’ in game design, changes to the laws of golf about ‘anchoring’, or the discussion about conservatism and innovation in sport. It might also prove to be a great resource for sports governing bodies who are considering any changes to their sport. This book is an impressive piece of work. I whole-heartedly recommend it to the reader.
Copyright © Miroslav Imbrišević 2022
[Disclosure: Mitch Berman is one of the contributors to the book of essays I am editing at present.]
Note
[i] Forthcoming in Imbrišević, M. (ed.), 2022. Sport, Law and Philosophy: The Jurisprudence of Sport, London: Routledge.
References
Fraleigh, W.P.,1982. ‘Why the Good Foul is Not Good’, Journal of Physical Education, Recreation & Dance, Vol. 53:1, pp. 41-42.
Fraser, D., 2005 [1993]. Cricket and the Law: The Man in White is Always Right, London: Routledge.
Harper, J. et al, 2021. How does hormone transition in transgender women change body composition, muscle strength and haemoglobin? Systematic review with a focus on the implications for sport participation, British Journal of Sports Medicine, Vol. 55: 15, pp. 865-872.
Hilton, E.N. and Lundberg, T.R., 2021. Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage, Sports Medicine, Vol. 51, pp. 199–214.
Martínková, I., Parry, J. and Imbrišević, M., 2021. Transgender Athletes and Principles of Sport Categorization: Why Genealogy and the Gendered Body Will Not Help, Sport, Ethics and Philosophy [online first].
Parry, J. and Martínková, I., 2021. The logic of categorisation in sport, European Journal of Sport Science, Vol. 21: 11, pp. 1485-1491.
Pearson, K.M., 1973. Deception, Sportsmanship, and Ethics, Quest, Vol. 19:1, pp. 115-118.
Pike, J., 2021. Safety, fairness, and inclusion: Transgender athletes and the essence of Rugby, Journal of the Philosophy of Sport 48 (2): 155–68.
Roberts, T.A., Smalley, J. & Ahrendt, D., 2021. Effect of gender affirming hormones on athletic performance in transwomen and transmen: implications for sporting organisations and legislators, British Journal of Sports Medicine, Vol. 55: 11, pp. 577-583.
von Arnauld, A., 2003. Recht und Spielregeln, Tübingen: Mohr Siebeck.
World Rugby 2020, Transgender Guidelines.
For Spanish speakers – I only recently came across this book by Gregorio Robles Morchón: ‘Las reglas del derecho y las reglas de los juegos’ (The rules of law and the rules of games), 1984. To my shame, I have ordered the German translation. My Spanish teacher back in high school, Jorge LaLinde from Madrid, will be shocked.