Sports regulation or the subject of sport law

Kurakin Aleksei Valentinovich ORCID: 0000-0003-0812-8212 Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 99 Ryazansky Ave., Moscow, 109542, Russia kurakinaleksey@gmail.com Other publications by this author

The article was prepared with the information support of Consultant Plus.

Legal reality is a very dynamic process, sometimes leading to the emergence of new legal phenomena, namely legal institutions and even new and or complex branches of law. One of the new legal formations in the domestic legal system and legal doctrine is the legal structure: "Sports law". It should be noted that in order for a particular legal structure to have a practical essence, several stages of its development must pass. As B.V. Yerofeyev wrote at the time, "... for the emergence of an independent branch of law, a number of conditions are necessary in the legal system: 1) the state interest in the creation of such an industry; 2) the specifics of regulated public relations that constitute the subject of independent regulation; 3) the need for a special method of legal regulation; 3) the presence or need for sources of law" ^[1].

From a methodological point of view, it can be seen that all these components apply to the subject of "sports law" today. It should be noted that the starting point for the formation of the relevant legal phenomenon can be considered the provision of the Constitution of Russia, which states that the country "... encourages activities that promote human health, the development of physical culture and sports" (Article 41). In addition, the Russian Federation and its subjects are jointly responsible for common issues: physical culture and sports (paragraph "e" of Article 72). The Constitution of Russia provides ample opportunities for a person to engage in physical culture and sports, establishes guarantees of health protection, and grants the right to choose types and forms of physical activity. As R.D. Grebnev notes, "... it is the constitutional right to sport, its recognition and full-fledged guarantee by the state that should be taken into account as the systemic basis of all public legal regulation of sport" ^[2]. The norms of the Constitution always fix and relate to the most important public relations, and taking into account modern realities, the field of sports certainly belongs to these current realities. This is indicated by the Constitutional Provisions, which will be given below.

Thus, the Constitutions of many countries specifically mention sports, physical culture and sports education. These regulations are conditioned not only by the social value of sports, but also relate to the relationship of the saints with the protection of the health of citizens. Please note that the Swiss Constitution stipulates that "... the Confederation encourages the development of sports, especially sports education. She runs sports schools, she has the right to adopt laws on youth sports and declare compulsory education in any kind of sport" (Article 68). The Hungarian Constitution states that "... the Republic ensures the right and creates opportunities for regular physical training" (Article 70). The Chinese Constitution states that "... the state develops the business of physical culture and sports, conducts mass sports events, and strengthens the health of the population" (Article 21). The Constitution of the State of Bavaria also states that "... the land and communities contribute to the development of sports" (Article 140).

The indicated Constitutional provisions speak about the social value of "sport", as well as the importance of physical education in order to strengthen human health, the state in this direction creates an integral system of legal and organizational guarantees. As M.S. Bratanovskaya noted, "... the importance of physical culture and sports in the modern world is based on the recognition of the unconditional importance of physical culture and sports activities for a person, the state and society as a whole from the standpoint of humanism, the highest value is recognized by the person himself, his health, freedom and dignity, versatile and harmonious development, the manifestation of all his abilities" ^[3].

It is quite natural that "sport" and its mass manifestation "physical culture" accompany human life from the most ancient stages of its existence. Thanks to physical activity and physical fitness, the person as a whole survived. Sports and physical education are an objective human need related to the satisfaction of his psychological and physiological needs. These classes allow a person to escape from everyday activities, get psychological relief, to improve or restore their health to some extent.

Today, as before, physical activity is present in a wide variety of spheres of human activity, especially when performing physical or industrial work. Proper physical strength (training) is necessarily needed in certain professions, in other words, physical development is part of the professional competence of the relevant specialist (employee, employee, employee).

The importance of sports and physical education is mentioned in some policy documents. As follows from the decree of the Government of the Russian Federation dated November 24, 2020 "On approval of the Strategy for the development of physical culture and sports in the Russian Federation for the period up to 2030" "... from 2010 to 2019, the proportion of the population systematically engaged in sports increased from 19% to 43%. In 2022, the number of people who systematically engage in sports has already become 52.9%."

By the decree of the Government of the Russian Federation dated September 30, 2021, the state program was approved: "Development of physical culture and sports" implementation, which will attract at least 70% of the country's population to systematic physical culture and sports and introduce them to a healthy lifestyle.

These documents are designed to popularize physical culture and sports, form legal and organizational guarantees for the realization of citizens' rights in the relevant field, and also contribute to the strengthening of such a phenomenon as "sports law".

Sport and physical culture are a part of human life, in this regard, it simply cannot but be outside the scope of legal regulation, especially in conditions of its cross-border existence and mass involvement of broad segments of the population in relevant processes. Modern sports and physical education are not an occupation of a privileged, financially secure part of society, this is an area of mass involvement of people. Of course, it must be recognized that practicing certain sports, as well as some forms of physical activity, require serious financial support, detailed coaching support, other sports and regular physical activity, on the contrary, are very democratic. In sports, as well as in other spheres of human life, there must be a choice.

As follows from the Federal Law of December 4, 2007 "On Physical Culture and Sports in the Russian Federation", the state "ensures the rights of everyone to free access to physical culture and sports, as well as the rights to engage in physical culture and sports for all categories of citizens and population groups" (Article 3). As already noted, Everyone has the right to independently and freely choose the kind of sport they want to practice. Modern sport is a complex system of relations of a very different nature, in addition, sport is an object of legal regulation by various branches of law. This approach suggests that "sports law" is a complex branch of law that integrates prescriptions of various industry affiliations to build a holistic mechanism of law in the field of sports and physical culture. As N.L. Peshin and B. Bomanovsky note, "... the main problem of recognizing sports law as an independent branch is related to the issue of distinguishing physical culture and sports as a homogeneous group of "sports and legal relations". After all, sports exist: as an object of state influence; as a type of work activity; as a business; as a competition system; as an area of procedural interactions" ^[4].

To form a system of legal means of influence, it is necessary to determine the object of such influence, namely, to understand what sport is. "Sport" is initially not a legal category, in this regard, we will consider the various points of view of the designated phenomenon, and also pay attention not to its function as an object of legal regulation. The understanding of "sport" as an object of legal regulation should proceed from the fact that sport as a phenomenon of social reality is aimed at meeting human needs in physical activity. In this sense, V.N. Lapshin is right, who wrote that "... the understanding of the object of a legal relationship follows from the position that every legal relationship arises because participants in public relations, under the influence of their needs, are connected with each other about some objectively existing material and ideal phenomenon capable of satisfying the needs of participants in public relations relationships" ^[5].

It is from these positions that one should approach the disclosure of such a category as "sport" in relation to the subject of sports law. Etymologically, the term "sport" means entertainment, now sport is a sphere of socio–cultural activity of a person, which has developed in the form of competitions and special practice of preparing a person (athlete) for them. There are such categories as "mass sports"; "amateur sports"; "professional sports"; "sports of the highest achievements". But at the same time, "sport" is always the rules, namely the norms that establish the procedure for conducting competitions, the rules of the competition itself, as well as the conditions under which their winner is determined. The norms governing sports are contained both in the rules of the sport itself and in laws that are of a purely sporting nature and regulate the most important public relations in the field of sports and physical culture. In addition, sport is an obvious competitive environment that is strongly supported and protected. Sport always involves a system of competitions, ratings, clear rules of the game, a winner is identified in sports, a system of awards and honorary titles is established. Sport involves the creation of an entire sports industry, and the formation of close sports relations that ensure the development of sports. Sport objectively involves injury, as well as the application of sports punishments for violating the rules of the relevant sport. In turn, physical education is a part of the general culture of a person, which helps to maintain the normal functioning of the body, strengthens the human immune system. Physical culture helps the harmonious development of the human personality, forms discipline in human life, increases his efficiency. The indicated non-legal components are important for building a system of legal regulation of relations in the field of sports.

It is completely obvious that sport as an active sphere of human activity gives him the opportunity to show his best personal qualities of strength and dexterity, and team sports are designed to instill in a person a sense of camaraderie and mutual assistance, sport also provides an opportunity to make a career, and in other professional fields. Sport also works on a person's reputation and professional image. Systematic practice of amateur sports strengthens human health. All the designated characteristics of sports are generally social in nature, but they can also be influenced by legal norms and thus constitute the subject of sports law. As A.A. Solovyov notes, "... sport is an individual and collective, professional and amateur, systematic and periodic activity organized according to certain rules, associated with the competition of aggregates of physical, psychological and intellectual data and abilities of its participants, as well as special practice of preparation for this activity and social relations arising in connection with them" ^[6].

From the state point of view, it is important to have an official definition of "sport", to keep a register of sports. As already noted, sport is a physical, intellectual, purposeful and volitional human activity aimed at achieving maximum sporting results in competitive conditions and including a system of competitions and systematic preparation for them.

Sport is a dynamically developing field, new sports regularly appear, including in the Olympic Games program. As noted by A.V. Chebotarev, "... the sports and legal regulation of the physical culture and sports industry today seems to be one of the most promising areas in terms of building a career for novice lawyers and managers" ^[7]. The state is obliged to respond to the relevant trends in order to comply with global sports trends. Sports and physical culture are of great importance for society and the individual, with the help of sports and physical culture, a healthy lifestyle is popularized, the process of educating a harmoniously developed personality is underway, a sense of patriotism and belonging to important social processes is formed.

In this regard, we focus on such a thesis, which follows from the International Charter of Physical Education and Sport, as follows: "... physical education and sport, being important aspects of education and culture, should develop every person's inclinations, will and endurance and promote his full inclusion in society."

Based on this, the state actually forms the legal basis for the existence of sports and physical culture. The development of the legal framework for national sports was determined by the norms of international law. As it was once enshrined in the International Charter of Physical Education and Sport of November 21, 1978, "... everyone has the basic right to access physical education and sport necessary for the development of his personality" (Article 1).

The above judgments are important for defining "sport" as an object of legal regulation by the SRB, sports law, and other branches of law that affect near-sports relations.

Taking this into account, let's pay attention to how the doctrine reveals the concept and subject of regulation of "sports law", but before that we will give several points of view regarding such a category as "law" and "branch of law". Traditionally, it is noted that "law is a system of normative attitudes based on the ideas of human justice and freedom, expressed mostly in legislation and regulating public relations" ^[8]. Law is generally binding norms, rules of conduct designed to make stable and predictable public relations, in our case in the field of sports and its organization. The norms of sports law, as well as the norms of other branches of law, are designed to regulate and protect relevant relations. Thus, in the field of sports, as a socio-cultural sphere, proper law and order is also necessary. Only in this case, participants in sports legal relations, primarily athletes, can realize their physical and intellectual capabilities, both in domestic competitions and in the international arena. Further, we note that in order to reveal the essence of the subject of sports law as a complex branch, it is necessary to pay attention to some doctrinal provisions regarding the understanding of such a category as: "subject of legal regulation" and "branch of law". As K.S. Belsky wrote, "... legal regulation is an impact on public relations carried out with the help of a system of legal means in order to streamline and protect them. The subject of legal regulation is a section of public life. Thus, public relations requiring legal regulation become the subject of the relevant industry" ^[9].

In turn, B.V. Yerofeyev wrote that "... the "subject" is what the action is aimed at. In the legal sciences, the subject is considered to be social relations that develop about an object and are within the scope of legal norms. The correct definition of the subject of legal regulation increases the effectiveness of the legal norm, and errors in the definition of the subject reduce their effect" ^[10]. These judgments are very important for building the doctrine of the subject of sports law, the definition of the "subject of sports law" in current realities is quite vague. This is due to the object of legal influence, as well as a complex system of regulatory regulation in the field of sports. Each subject of legal regulation has its own characteristics. V.D. Sorokin, correctly, noted that "... the search for the specifics of the subject of regulation of a particular branch of law has considerable cognitive and practical value, they are aimed at exploring the properties of the special" ^[11].

In this sense, "sports law" is a very specific phenomenon in the legal system of our country, which requires a comprehensive approach to its study.

As for the understanding of such a category of "branch of law", we will also give one position. As M.N. Marchenko notes, "... branches of law are the largest components of the legal system. Each branch is not a random set of its constituent norms and institutions, but an integral education, system, or relate to a subsystem in the legal system as a whole" ^[12]. Thus, the branch of law is a system of homogeneous legal institutions that are designed to concentrate the norms of law that regulate ideologically close social relations. It should be noted that it is not always possible to regulate ideologically or substantively close relations within only one branch of law, in this regard, complex branches of law appear that use the possibilities of other branches of law in their method of regulation. Such legal phenomena include, in particular, "sports law".

"Sports law", as a comprehensive legal education, is part of the Russian legal system. The emergence of this phenomenon is caused by the objective need for legal regulation of public relations in the field of physical culture and sports management, as well as the creation of a "sports legal space" necessary to ensure law and order in the area under consideration.

The doctrine notes that "sports law" is a complex area of legal regulation, which means that "sport" and its mass manifestation "physical culture" is an interdisciplinary object of legal influence. The peculiarity and complexity of complex branches of law is that they have common legal provisions and unique legal institutions that other branches of law do not have. In particular, in sports law there is such a legal institution as the "fight against doping in sports", the "legal institute of sports agents". Sports has its own system of rewards, awards, sports qualifications, honorary titles, its own system of punishments, the institute of sports clubs, teams and national teams, etc. ^[13]

As I.M. Amirov notes, "... the norms governing sports and technical relations are one of the main institutions of sports law" ^[14].

Sports law has both a public component and a private legal component in its content. The last element is related to contractual, agency relations, as well as legal relations of sponsorship and advertising in sports. It should also be noted that professional sports have significant commercial content. As V.V. Saraev notes, "... professional sports are associated with commercial interest, in connection with which he relies on excitement and entertainment" ^[15].

As already noted, the legal regulation of national sports is influenced by international sports law, as well as the norms of international sports organizations.

International sports organizations such as the International Olympic Committee (IOC), the International Football Federation (FIFA), the World Anti-Doping Agency (WADA) are very authoritative subjects of international, and not only sports law, they have a significant impact on the development of world sports (sports), as well as on political decisions. In addition to the norms of international sports law, sports also have their own purely sporting norms, so the rules of the game or sports competition are of a cross-border nature.

Based on this, it is noted that "... sports law can be considered as an integral part of the legal system – an integral set of legal phenomena related to sports that go beyond national regulation, since due to the international nature of many sports relations, their regulation is also carried out at the international level" ^[16].

The norms of sports law, which are universal in nature, should certainly take into account the local norms (rules, regulations) of a particular sport, which for the most part have developed historically. Regarding sports rules as sources of norms of sports law, it is necessary to say a few words. Thus, M.O. Buyanova notes that "... sports rules are adopted and approved by sports organizations, and not by public authorities, and therefore, in order to acquire the status of a rule of law, sports rules require the approval of public authorities, since the attribute of state authorization is a necessary sign of a legal norm" ^[17].

Formally, this is so, the rules of the game or the competition are approved at the national level, in particular by the federations for the relevant sport, by the Ministry of Sports, but this is still a legal formality, since the rules of the game (football, hockey, basketball, etc.) have already been approved at the international level by the relevant international federations. Therefore, it is simply impossible to establish other rules at the national level of legal regulation of the relevant sport. Meanwhile, the rules, regulations and agreements in force in national sports should be based on the requirements of the law, this is necessary in the interests of ensuring sports law and order, protection and protection of human rights in sports. All this determines the peculiarity of the subject of sports law.

It is often noted that sports law regulates public relations that develop in the field of physical culture and sports. A very general approach to the definition of the subject of this area of legal regulation. Sports law is heterogeneous, as well as sports itself. In this regard, in the subject of sports law, one can see a block of norms concerning the regulation of the process of public management of sports, its state financing and support, especially Olympic sports, as well as national teams. There is a block of norms in sports law that regulate the specifics of the work of athletes and coaches (Chapter 54.1 of the Labor Code of the Russian Federation), as well as norms establishing administrative (Articles 6.18, 20.31, 20.32 of the Administrative Code of the Russian Federation) and criminal liability (Articles 184, 230.1, 230.2 of the Criminal Code of the Russian Federation) for violation of legislation on physical culture and sports. The Federal Law of December 4, 2007 "On Physical Culture and Sports in the Russian Federation" establishes the procedure for administrative and legal regulation in the field of sports and physical culture. The norms of administrative law contained in it relate to various aspects of the implementation of state policy in the field of sports, in addition, its norms determine the legal status of participants in sports relations, the system of prohibitions and restrictions in force in sports, as well as means stimulating (popularizing) sports and physical culture. The specificity of the legal regulation of sports is that not only formal legal norms operate in it, but also other important social regulators. As I.M. Amirov notes, "... the sphere of sports is not regulated by legal regulators by the norms of sports ethics; the norms of sports public organizations; traditions and customs that have developed in sports" ^[18].

As G.A. Nafikova notes, "... the object of legal regulation in the sports sphere is physical culture and sports (mass (physical culture), high-performance sports (Olympic) and professional). Therefore, it can be noted that the subject of sports law is public relations in the field of physical culture and sports" ^[19].

A.V. Serdyukov points out that "... the subject of sports law is sports relations, and this is a special kind of social relations, characterized by the uniqueness of the object, a high degree of regulation and stability, aimed at satisfying special psychological and physiological needs of a person focused on competitive activity and preparation for it" ^[20].

O.M. Buyanova states that "... the subject of sports law is public relations developing in the field of physical education and sports (sports relations) regarding the organization of: physical education, sports training, sports events; ensuring physical culture and sports activities and international cooperation in the field of sports, as well as consideration of sports disputes" ^[21].

S.A. Medvedev notes that the subject of sports law is any knowledge, skill, skill acquired in the process of physical education and participation in training and competitive activities ^[22].

In turn, I.M. Shashkova writes that "... sports law is a specialized complex branch of law, which is a system of interrelated legal norms that regulate relations in the field of physical culture and sports activities" ^[23].

From the above, it can be concluded that the subject of sports law is public relations, which are related to the organization of physical education and sports, various groups of citizens, as well as relations related to law enforcement in the sports field. The norms of sports legislation as a whole do not directly relate to the substantive aspect of sports, the training process, despite this, the "technological process" of sports is also regulated by legal norms, in particular, excessive cruelty, destructive behavior of athletes and coaches, advertising of certain goods, etc. are unacceptable during a sports competition.

As I.M. Amirov notes, "... public relations that arise during sports competitions are sports and technical relations, which, within certain limits, are included in the subject of legal regulation of sports law" ^[24].

S.V. Alekseev writes regarding the phenomenon under consideration that "... the subject of sports law is a complex of public relations arising in the field of physical culture and sports, civil, labor, social security, public administration, business, criminal law, medical, international and procedural, as well as relations related to countering doping" ^[25].

The designated author has included in the subject of sports law a fairly wide range of public relations, which are regulated by the norms of various branches of law. He indicated the presence of a medical component in this subject. This is true, because sports are not only victories and sports titles, sports are injuries, and in some cases very serious, sports are pharmacology and sports rehabilitation. However, these relations still accompany sports and are not the subject of legal regulation of this industry. Please note that quite a lot of professions are associated with sports: sports doctor, sports psychologist, sports manager, security specialist, lawyer working in the field of sports law, etc. Despite this, not all of their professional activities are the subject of sports law. Based on this, we will formulate our understanding of the subject of sports law, which takes into account the previously existing doctrinal developments regarding the phenomenon, nevertheless taking into account the new realities that take place in the sports management system and near-sports relations.

Sports law is a system of norms regulating public relations in the field of physical culture and sports, in order to ensure sports law and order, protect the health of citizens and create conditions for athletes and coaches to achieve maximum sports results, as well as protect the sports sphere and athletes themselves from the destructive influence of a variety of circumstances. The norms of sports law may also affect relations that exist next to sports, and which can help the development of physical culture and sports, as well as promote the popularization of a sporty lifestyle. Despite the fact that sports law has its own subject, it is premature to say that it is an independent branch of law.

In conclusion, we note that the norms of sports law, as a complex branch, regulate public relations related to the establishment of the legal status of an athlete and a coach, the procedure for the transfer of athletes from one club (team) to another, i.e. the norms of sports law regulate transfer (agency) relations. The norms of sports law determine the procedure for the responsibility of athletes and coaches, and sports sanctions can be of two types, sanctions established in the sports competition itself and sanctions established by the norms of administrative, labor, criminal and civil law. The norms of sports law regulate relations related to the use of doping in sports, that is, these norms prohibit its use in any form and establish responsibility for its use in sports. The norms of sports law define promising directions for the development and state support of physical culture and sports. Also, the rules of sports fix the procedural procedure for resolving sports disputes.