Sport and the law: The increasing commercialisation of sport has exposed it to the rigours of the law. Jack Anderson, a lecturer in sports law, argues that a balance will have to be struck

Down footballer James McCartan, Manchester United's Rio Ferdinand and British athlete Dwain Chambers have all made headlines recently though not for strictly sporting reasons. Their respective problems highlight the diverse range of legal issues now identifiable in sport.

Ferdinand's apparent failure to take a routine drugs test has led to the threat of litigation by Manchester United plc. The International Amateur Athletic Federation's anti-doping code will undoubtedly come under intense legal review as that organisation attempts, through retrospective testing, to combat the emergence of designer steroids. While the GAA will have to become familiar with aspects of criminal and civil liability consequent to violence on the field of play.

Since its inception, organised sport has jealously guarded its right to self-regulate its affairs. The increasing commercialisation of sport has, however, exposed sport to a bewildering array of legal issues. It has also led to the emergence of what some have termed lex sportiva, or sports law.

Concentrating on two areas, violence in sport and the fight against performance- enhancing drugs, the impact that the law is having on sport is all too apparent.

Case law regarding liability, both civil and criminal, for injuries caused by one participant to another during a game is not as rare as some sports organisations would like to believe. The courts have suggested that a participant can sue another in negligence and receive damages where the injuring party showed "reckless disregard" for the safety of his opponent. Also an injured player could sue a sports governing body in negligence for failure to update or apply satisfactory safety standards.

Two years ago, boxer Michael Watson successfully sued the British Boxing Board of Control for their failure to provide adequate access to neurological emergency care in the immediate aftermath of his WBA super-middleweight title fight against Chris Eubank in September 1991.

Earlier this year, the English Court of Appeal dismissed an appeal by the Welsh Rugby Union who had been held vicariously liable for the failure of a referee to properly apply the game's scrums laws leading to a player suffering serious spinal injuries.

Admittedly, prosecutions arising from sports violence are infrequent. Nevertheless, ice hockey in Canada, rugby league in New South Wales and rugby union in England have seen a number of convictions. Commenting recently on a prosecution arising out of a game of rugby union in England, the retired trial judge noted that the player-victim had not initially sought a prosecution. However, as he had received no offer of compensation nor any disciplinary hearing the victim felt he had no option but to go to the police.

All sports bodies should be aware of the need to constantly review, update and implement on a consistent basis their disciplinary structures, as well as providing detailed insurance schemes. Professional players, whose livelihoods are at stake, are increasingly aware of their legal options. In addition, the amateur player who suffers an injury that prevents him from working may equally decide to initiate litigation.

Overall, it has been demonstrated that sports participants are reluctant to start legal proceedings, though this may largely be due to the fear of being ostracised for doing so. In Ireland, a number of civil actions have collapsed because of lack of evidence or on the grounds of "mistaken identity". In one recent case, a judge expressed extreme concern at the extent to which witnesses, including the referee, were having difficulties in remembering the incident at hand. As the judge remarked, for many in sport, it remains the case that "things should be sorted out on the field".

In contrast, the courts have acknowledged that the criminal law should be seen as the last resort in combating sports violence. It is a very blunt instrument in this regard and may only lead to the "scapegoating" of individual participants for the practices that are endemic in and tolerated by the sport as a whole.

Where the sport of boxing stands in the eyes of the criminal law is a matter of conjecture. In the early 1990s, the House of Lords addressed the issue by stating that the sport seemed to be exempt from the ordinary law of violence solely because "society chooses to tolerate it".

How much longer society will tolerate a sport, where one prominent professional recently fought with a titanium plate inserted in his skull, is unclear.

The courts have never questioned the seemingly futile attempts to combat doping in sport. The courts wholeheartedly agree that the taking of performance-enhancing drugs is cheating, that it impacts on the integrity of sport and that it endangers the health of athletes.

In that light, the courts have given sport some leeway in the manner in which it implements its anti-doping policies. This is particularly so with the strict liability nature of doping offences where the onus of proof lies entirely with the athlete.

Nevertheless, due process concerns; the use of biased arbitrators; disproportionate sanctions; unreasonable restraint of trade and violations of privacy and bodily integrity rights are just some of the issues that have been raised in recent legal challenges to anti-doping codes.

In the 1990s, a combination of these issues led the major sporting bodies to reduce the then, rarely implemented, four-year ban for doping to two years.

Despite comments from the World Anti-Doping Agency that the emergence of the THG-steroid may necessitate a restoration of the four-year ban, it is unlikely that such a punitive sanction would stand up in a court of law. Furthermore, the retrospective testing of athletes' samples has already inspired much legal debate.

Apart from these issues, the development of the concept of sports law is primarily the result of the commercialisation of sport. The sports lawyer now has a broad brief including knowledge of broadcasting rights, competition law, intellectual property, stadium naming rights, arbitral hearings, contract and tax law.

Focusing on one particular sport, the Bosman case changed the face of modern football. These changes have been well documented and can be seen indirectly in Claudio Ranieri's "new" Chelsea and the recent "solidarity payments" made to Crumlin United as a result of transfers involving Robbie Keane.

Although the impact of European law is not confined to soccer, football and its governing body in Europe, UEFA, present an interesting example of a sport that once thought itself immune from the law.

One final football-related example is telling. In the aftermath of the Heysel Stadium disaster all English club teams were banned from competing in European club competitions for a number of years.

It is undoubtedly the case that such an all-encompassing ban would not withstand a court challenge in today's sports law environment.

Many will be aggrieved at the increasing invasion of sport's domain by the law, but it is inevitable. A balance must be struck. The professional soccer player of the 21st century is no longer the serf he was in the 1950s, thanks largely to legal intervention.

On the other hand, no one would welcome sport's seasonal patterns, for example, being disrupted by frequent High Court challenges. Either way, there is much for the sports lawyer to do.

Jack Anderson lectures in sports law at the University of Limerick, and is completing a PhD entitled The legality of boxing.