Rules of Play Outline

Rules of Play

Friedman

Fall 2016

Introduction

Comparative Law

The study of different legal systems, often with the aim of drawing lessons about what works and what doesn’t from one system for transplantation or adaptation to another

Fundamentals

What is Sport?

Defining “Sport”

NCAA – “an institutional activity involving physical exertion with the purpose of competition versus other teams or individuals within a collegiate competition structure.”
IOC –endorsed the “commonly accepted” view that “sport is physical exertion in the conduct of competition”

The 2 definitions above have 2 common elements: (1) physical assertion; (2) competition
But this is definitely overinclusive

Example – barroom brawling

This is an activity which involves physical exertion and competition, but certainly it isn’t a sport

One possible response is that sports are a special type of game.
On this common view, sports have three necessary and sufficient conditions:

Games that involve
Physical exertion, and

Suit’s View

Games are rule-governed activities that satisfy 4 conditions

A participant pursues a goal describable as a state of affairs
Using only those means permitted by the rules
Where those rules exclude more efficient in favor of less efficient means of realizing the goal, and
In which the participant accepts the limitations to make the activity possible.

But this is both under and overinclusive

Underinclusive because it fails to capture paradigmatic games like children’s games of role-playing and make-believe
Overinclusive because it would include some activities, like religious rituals, that very few people would deem games

Does it Matter?

Does it matter what sports or games are?

There are at least 3 reasons which make it worthwhile to consider this:

Rule Application – the term “sport” is sometimes used as a predicate in a law, regulation, charter or other governing standard, in which case tangible consequences will follow depending on whether some particular activity satisfies a definition of “sport.”
Conduct Guidance – the inquiry might shed light on the proper conduct of participants and officials
Conceptual Analysis – you will have reason to grapple with other complex and abstract concepts, and the current investigation offers practice with this difficult but occasionally important skill

“The Essence of the Game”

PGA Tour v. Martin

Facts è Martin suffered from a disorder which caused him sever leg pain, preventing him from walking golf courses. The Rules of Golf permit the use of cars, but under the rules of the NCAA and the PGA Tour, carts are not allowed. Martin sued, claiming these rules were a violation of the ADA

The use of a cart would “not fundamentally alter the nature of the PGA Tour’s game”
The essence of the game is shot making – using clubs to cause a ball to progress from the teeing ground to a hole
Walking is not an essential attribute of the game
It is impossible to guarantee that all competitors will play under the same conditions

The rules of any game are entirely arbitrary, and there is no basis on which anyone – not even the Supreme Court – can pronounce one or another of them to be “nonessential” if the rulemaking deems it to be essential

Perhaps one way to look at this is whether a rule is “peripheral” or “marginal” to the game at issue or whether some rules or practices are more central to a sport than others
Note – the PGA took a different approach when looking at “anchoring”

PGA wanted a uniform game across all levels
Whereas in Martin, the PGA said the walking requirement in different competitions was allowed

Other Examples

Fosbury Flop – new high jump technique allowed

Perhaps because the essence of t