THE ROLE AND THE IMPORTANCE OF THE LEGAL FACTORS

IN THE MANAGEMENT OF SPORTING STRUCTURES AND SPORTING ACTIVITIES IN ROMANIA

    Prof. Alexandru Virgil VOICU, Ph. D

Faculty of Physical Education and Sport

"Babes-Bolyai" University Cluj-Napoca

Rolul si importanta factorilor juridici in managementul structurilor si activitatilor sportive in Romania

Rezumat

Cuvinte cheie: management, structuri sportive, activitati sportive, factori juridici, drept civil, dreptul sportului

Problematica mediului ambiant, a impactului pe care acesta il are asupra structurii sportive si activitatilor acesteia – a fost, este si va fi in atentia celor preocupati de managementul sportiv. Mediul ambiant poate exercita asupra structurii sportive variate influente prin intermediul unui complex de factori a caror cunoastere faciliteaza mecanismul functionarii acesteia.

Vom prezenta in lucrare importanta factorilor juridici (in managementul structurilor si activitatilor sportive) – priviti ca factori integrati in ansamblul altor factori de mediu. Vom sublinia necesitatea existentei si respectarii cadrului normativ – conditie favorizanta pentru procesele decizionale din sistem.

Consideratiile cu privire la tema enuntata ma obliga a sustine necesitatea constituirii "Dreptului sportului" ca o ramura de drept distincta.

*

Abstract

Key words: management, sporting structures and sporting activities, juridical factors, civil law, law of sports

The issues of the environment and its impact upon the sporting structures and sporting activities – were, are, and will be in the attention of those who are preoccupied by the management of sports. The environment can have various influences on the sporting structures through a complex of factors the knowledge of which facilitates the mechanism of their functioning.

I should try to present in my paper the importance of the juridical factors – seen as an interconnected in the ensemble of other factors of the environment.

I shall underline the necessity of the existence and respecting of the normative frame – a favorising condition for the decisional process of the system.

The considerations regarding the subject of the paper obliges me to sustain the necessity of constituting the "Law of sports" as a distinct branch of the Law.

We all engage ourselves in the accomplishment of some speculations and discussions on the causes, consequences and the content (itself) of the phenomena and the processes which we meet and which influence our everyday life. Our most probable attitude, may be to address these subjects from different perspectives, adopting particular points of view induced mainly by our conditioned experience and by our common sense. I am obliged therefore, to squeeze between the statement (which belongs to sociology) of a prudent attitude, if not of a total rejection, based on intuition, speculation, popular wisdom, and the "rigors" of scientific methods peculiar to experimental researches. This attitude places me from the beginning into the category of professional papers.

I shall try as objective as possible, to present the estimation of the role and of the importance of legal factors in the management of sport structures and activities. Starting from a neutral axis in a proportion which is possible, when you refer to a Behavioral Science, like law, interrelated with management, which are mainly comprised, in the sphere of Economics.

It is well known the fact that Economics has as subject the study of production, distribution and consumption of goods and services with all the aspects related to money, banking, and financial life, public finances, international economy, work relations, business management, the economy of consumer, public policies etc., but economy is a part of social life. Producers do not consume goods and services produced. It is different for the "sporting goods" which are produced directly or indirectly through the sport firms, which in this context must be regarded as sporting structures. The firm or enterprise does not sum up only to the domain of economy, it has a bigger sphere of comprise, its subject of activity must be approached from any part of activity, implicitly from the sporting one, with the condition that profit must be obtained by the contractors. The profit of sporting structures contains both economic advantages, as a consequence of the progress of sporting activities (training, competition, performance) and also the advantages achieved through the fulfillment of other "functional requirements", not only commercial, which make the sub-system of sport to fulfill other social obligations. Thus, it is recognized that sport is characterized by multiple functions (the function meaning an action, a behavior, significant for a certain system, in the sense of satisfying the functional needs of these) among which: the contesting function (the function of satisfaction and stimulation of the desire to compete), the function of maximize the performance (the function of developing the capacity of performance in the biological-psychological-social plan), the conative function (the function of satisfying the need of exercise and action), the function of socialization (integration, social affirmation, communication, emulation), which includes, on its turn, also the function of representing the country, and the cultural and economical function. In any kind of social activity, one must always meet the problem of the efficiency of the activity unrolled in their special context. The efficiency of an activity may be appreciated through the effect that the activity has on the biological, psychological, social, and cultural plan, respectively by the relation between the achieved "investment" and the obtained "profit". The relation to which I am referring to, must be in the client's favor, beneficiary of the production area of the sporting services: primary clients (those who directly benefit from the effects of practicing physical exercises), secondary clients (parents, sponsors, local administration), tertiary clients (society).

The Romanian society makes its way towards constituting a state of law and starts to impose its values. In these conditions a new social model is built on, that of liberal conformity- the law starts to be effective, the simple declaratory step is passed over. In the model of liberal conformity the conforming framework is easily determined and there is no penetration in the domain of private life. The fundamental human rights, and their interests are often invoked, in contrast with their obligations and duties, which are mere scarcely invoked. The entire private law is based on the idea of interests and especially on material ones. But, must all the interests be protected juridically? Can any interest give birth to a law? Then, in what sense must the idea of interest be taken in juridical relations? Interest cannot be justified in law, only when it is conformable with the conception of justice. In conformity with the idea of law, only a just interest must be consecrated. I think, I have sufficiently motivated the statement in accordance to which the management of sporting structures and sporting activities, too, must be subordinated, mainly, to two imperatives: efficiency and legality.

Sport is a notable social phenomenon. Sport must maintain its function of socialization. The social is based on norms. It is necessary to respect the order of law in sporting activity and in those connected to it. It is important to know the normative framework of these activities, which favor and condition the decisional process in the sport system.

I have briefly presented the problems of "profit" and that of the efficiency of sporting structures and sporting activities. I shall try further on to present through some examples, which won't cover of course in totality the problem, the importance of the legal factors constituted from the ensemble of composition proceedings with a direct or indirect influence upon sporting structures and its management, seen as an integrated factor in the ensemble of the environmental factors. This contains: economical factors, factors regarding population, social-cultural and political ones. Only if the evolution of the environmental factors is known and applied, can the subsystems of sportive management be conceived and able to function properly through the instrumentality that ensure the link with the environment. In a natural way the state has also an important role in the existence and evolution plan of the sporting structures, on the plan of the social life. Not only that the state is adjusting through norms of law the setting up of sporting structures, their juridical capacity, the way in which they are manifested in the dynamic of juridical relations, the eventual reorganization and ceasing of their existence as legal individuals, but the state organizes as well a complex system of evidence of existence and evolution of these persons, setting up a Sportive Register (imposed by the provisions of the Law of Physical Education and Sport no. 69/2000). Now, as it follows I shall present the structures of the sportive system from Romania. The classification of sporting structures in order to be able to determine their juridical nature (and, which is conditioning the content and the limits of the juridical capacity), as well as the problematic of juridical liability in the eventuality of causing a tort in the sporting activity, responsibility which can be engaged both to the judicial person, the sporting structure, and also to the natural person as the case stands. In Romania, in agreement with the Law of Physical Education and Sport no. 69/2000, the system of physical education and sport contains two kinds of structures: the structure of public administration for physical education and sport and the sporting structures.

In Romania, specialized institution of public administration which co-ordinates the activity in the domain of physical education and sport is the Ministry of Youth and Sport (with the exception of the cases provisioned by the law- the activity of physical education in the educational units and institutions, the activity of physical education in military units and in military education). In the territory there are directions for youth and sport for the counties and the city of Bucharest, which are decentralized, public services of the Ministry of Youth and Sport. The provisions elaborated by the Ministry of Youth and Sport appoint their management function and their prerogatives. The public administration, conceived as the fulfilled activity of certain authorities, is carried out in conformity with and based on law, mainly through administrative acts with a normative or individual character, through material juridical facts, and different technical operations. Administrative acts are unilateral manifestations made during the exercise of the executive function of state in order to produce juridical effects, the realization of which is guaranteed through the possibility to resort to the force of coercion of the state. The material juridical facts cause transformations in the material world and produce through this juridical effects, which are independent from the existence of manifestations of will (for instance the pulling down of an unwholesome building which has a sportive destination, the building of a stadium etc.).

Sporting structures are associations of private law, formed of by natural or judicial persons, constituted with the aim to organize and administrate a sporting activity having as its object the promotion of one or more sportive disciplines, practicing them by their members and participating to sporting activities and contests. For the purpose and in the conditions established through law sport clubs can function, legal persons of public law organized in the subordinate of the bodies of local and central public administrations. The possibility of constituting sporting structure of private law is the result of the expression of the right of free association, both for natural persons and for judicial persons, a constitutional right, deliberately provisioned in the Law of Physical Education and Sport no. 69/2000. The establishing of sporting structures are realized adequate to law. In the sense of the Law no. 69/2000 of Physical Education and Sport the followings are considered sporting structures: sporting associations; sport clubs including those organized by trading companies; county associations and those of the city of Bucharest on sport branches; professional leagues; The National Sport Federations; The Romanian Olympic Committee.

It is difficult to classify all the categories of judicial persons - sporting structures, which exist or can be set up. I shall classify sporting structures (judicial persons) only regarding to the criteria, by which they can attract practical consequences regarding the problematic of their managing. A first classification is that distinguishing sporting structures of public law from those of private law. The sporting structures of public law are those having as aim public utility objectives. However, only a special category of sport club can have this quality. The sport clubs can be legal persons of private law and legal persons of public law. The sport clubs of public law are "judicial persons, established as public institutions (through the juridical paper of provision of the competent administrative body) subordinating to the state administration bodies, having as objective the activity performance, selection, training, and participation in internal and international competitions" (Law no.69/2000 first paragraph). The sporting structures of the private law are constituted through juridical paper of association. As a rule, judicial persons of private law follow other aims than those of public utility. An exception out of this rule is a sporting structure of private law, which proves public utility through its object of activity, and tends to be conferred with this character (of public utility) due to its vocation. The character of public utility of the sport clubs of public law is not expressly mentioned, but the public utility character of these sporting structures is aimed according to the act of disposition of competent administrative body, through which they were founded. Through the provisions of Law no. 69/2000, the character of public utility is attributed both to The National Sport Federation and to The Romanian Olympic Committee, which are legal persons of private law having a public utility character, autonomous, non-political, non-governmental, and non-lucrative (Law no. 69/2000, article no.35, paragraph 2, article no.43 paragraph 2). The character of public utility can be recognized at any sporting structure with a juridical personality which followed the procedure provisioned by the Ordinance no.26/2000 regarding associations and foundations.(article no.38,39.40; see also in the Regulation of application regarding the provisions of Law of Physical Education and Sport no, 69/2000,art.no.1 letter m). The non-lucrative sporting structures of private law, being recognized their character of public utility, are conferred a preferential statute in the framework of the civil society (Ordinance no.26/2000, art.no.41). Out of those which were presented and out of the analyze of Law of Physical Education and Sport no.69/2000, follows that all sporting structures with juridical personality are legal persons of private law, with the exception of the sport clubs of public law. The classification of sporting structures with juridical personality into legal persons of public law and persons of private law determines numerous practical consequences, because legal persons of public law are applicable juridical norms different from those applicable for legal persons of private law. Thus, for persons from the public law, the constitution and functioning, as well as the conditions for taking part in the juridical life are established through public law norms (constitutional, administrative, fiscal etc.), while for persons from the private law they are established trough private law norms (especially of civil law, commercial law etc.). According to the criterion of their aim, judicial persons can be divided into persons having a patrimonial aim (for instance commercial firms) and persons having a non-patrimonial aim (as associations, foundations etc.). In the Romanian sporting system, the only structure with juridical personality, which has a patrimonial aim, is the sport club constituted as a sporting commercial company on shares. It is constituted under the terms of Law no.31/1990 regarding commercial companies, republished; of Law no. 69/2000; and completed by the Commercial Law norms. This classification does not institute a total restriction upon the commercial capacity of non-patrimonial persons, because as a rule, the persons with non-patrimonial aim can organize some annex activities, bringing profit, which can be utilized in fulfilling their non-patrimonial aim. Thus, sporting structures which were organized according to the proceedings provisioned by the Ordinance no. 26/2000 regarding associations and foundations "… are allowed to be set up commercial firms. If the dividends obtained by the associations and foundations from the activities of these commercial firms are not reinvested into the same commercial firm, it is compulsory to use these dividends to carry out the aim of the association or of the foundation. The associations and foundations can carry out any other straight economic activity, if this has an accessory character and is in a close relation with the aim of the main judicial person" (Ordinance 26/2000, art. 47, 48).

As a result of the classification, depending on the criteria stated above, it follows that most of the sporting structures are legal persons with a non-patrimonial aim (sport clubs, county associations, and those of the city of Bucharest on branches of sport, national sport federations, professional leagues, The Romanian Olympic Committee). An exception out of this rule is a sport club of private law which is constituted as a joint stock company. We can also observe that there exists only one sporting structure without juridical personality, namely the sporting association. One can observe, clearly, that the problems of organizing and of carrying on a sporting activity were transferred from the public sphere into the private sphere of the civil society. The transition towards a market economy imposes also in sport initiatives of the civil society. In fact, the constitution of sport organizations with a non-lucrative aim, of private law, must be made at the initiatives of private persons, who must take over the burden of organizing and carrying on sporting activities off the shoulders of the state. In this context, I must remind the speech of the Minister of Justice G. G. Marzescu in the Exposition of Motives by which the project of the Law of Associations and Foundations no. 21/6 from February 1924 was advanced towards The Senate of Romania in order to be debated, which anticipated, among others, the development of the activities of physical education and sport in Romania, in the period between the two World Wars. However, the Law no.21/1924, inspired by the French law of Moral Persons (1900), has kept its message to date, in spite of the fact that the law itself was abrogated by the Government Ordinance no. 26/2000 regarding associations and foundations.

It is an acknowledged fact that juridical relations, in the domain of sport, join in their framework, both the sportive and the state order. The legality of sport is identified within three zones: the zone of state order, the zone of sports ground, and the zone of sportive institution.

The zone of state order or the zone of logistics is that, which refers to the administration of the economical means of sport and to the problematic of juridical responsibility in its different forms (penal, administrative, disciplinary, civil) and which grants to the lawful subjects, out of the respective juridical accounts, the warranty of protection of subjective rights through the coercive force of the state. State order also includes the norms belonging to the international agreements to which Romania has adhered and has as its object the sport activity (among which "The European Convention Regarding Violence and Uncontrollable Outbursts of The Spectators on the Occasion of Sporting Manifestations, Especially Football Matches"; "The Anti-Doping Convention"; "The European Charter of Sport"; "The Code of Sport Ethics" etc.). The zone of sports ground, of the confrontation, isolated in its unit of time, place, and aim is the zone with a maximum density of sport. Here the sportive regulation is the main factor, or it even rules in exclusivity, because without the regulation the contest cannot exist. Thus, the winner wins, and his adversary is defeated according to the regulation. The legality of the state must interfere only then when general norms of law having an imperative character are violated during a sporting activity (for instance: damages could be caused by illicit acts, by not respecting the special regulations of these activities). The knowledge of the law system is also necessary for those who elaborated the rules of the game (to be understood as norms, which regulate the sport activities). Nemo censetur ignorare legem. In the process of elaboration of the rules of the game, the valuation represents a complex operation, its result expressing the position of the legislator, that is the sportive community. In sport activities, values like life, health, corporal integrity, dignity, fairness, equity, freedom must be protected. It is known that the rules of the game must guarantee equity and must make the game interesting. However, at the same time these rules represent the declaration made by the authority of a sportive community upon which its members gave their consent, by this ensuring the legal certainty and protecting the subjective rights of the participants at the sport activity. Regarded this way, the rules of the game can and must contribute to the carrying out of the civic education, the base of a real democracy having both juridical and moral character. All the participants to these activities must respect these norms, with a mixed character. The turning off from them are penalized both by the referee, by the leading forum of the domain of activity, and even by the coercive force of the state, if necessary. The penalties received as a result of the violation of the rules of the game, and also of the juridical norms can cause great dysfunction to the management of sporting structures and sporting activities.

If we recognize that the system of law could incorporate the institution of legal relations operative on the sport ground, knowing the fact that on the sport ground operates by law both the legality of the state and the legality of the sporting structures, and that the object of juridical regulations of this notable social phenomenon (sporting activity) which is already well defined. Thus I can affirm that the law of sport could impose as an independent branch of Law. This branch incorporates special social relations which will be regulated by juridical norms belonging to other branches of law, but also to the norm of some non-governmental organizations, which have the investiture of legitimacy and legality. For supporting this statement we can take over from the modern theory of law the affirmation that the shape validity and its specific manner of existence are not determined merely by the formal criterion of its expression. In a shape accepted as a source (stream) of law, but also by the joining of three elements: the form, the effectiveness, and the legitimacy. The formal validity of these rules of game determines the rise of the presumption of legitimacy and effectiveness, constituting a decisive element for the production of effects followed by the respective rule. The juridical liability can be engaged, in certain situations, also for the assignment of those who through their conduct abstain from penalizing the turnings off from the sportive regulations.

In conclusion, it is necessary to consider the legal factors as a major criterion in the management of sporting structures and activities. I sustain, that it is necessary that the "law of sport" should be constituted as a distinctive branch of law, having in view the social importance and the complexity of the domain of sporting activities. In fact, in many countries, including Romania, the subject law and sport legislation is being introduced into the higher education curriculum. The training of the necessary personnel for carrying on sporting activities, as well as managing sporting structures, claims a vast knowledge of general culture and modern specialties, including juridical specialties. All these must be capable to provide the necessary tools to deal with and to intercept by what means must be considered the activity of physical education and sport in a society in full transformation, with the perspective of development, as the actual Romanian society.

References:

Alaphlippe, F., "Sport…the Third Millenium", chapter "Lawfulness and Legality of International Structures of Sport", Sante-Foy, Presses de l`Univ. Laval, Canada, 1991;

Djuvara, M., "The General Theory of Law (Juridical Encyclopedia). Rational Law and the Streams of Positive Law", Publishing House "ALL", Bucharest, 2002;

Dragnea, C. A., Mate-Teodorescu Silvia, "The Theory of Sport", Publishing House "FEST", Bucharest, 2002;

Mihu, A., "The Sociology of Law", Publishing House "ARGONAUT", Cluj-Napoca, 1996;

Muresan, M., Boar Ana, Diaconescu, S., "Civil Law. The Persons", Publishing House, "CORDIAL LEX", Cluj-Napoca, 2000;

Sinjo Morino, ., "Sport…the Third Millenium", chapter "In the Search of Excellency: Revolution, Problems, and Values", Sante-Foy, Presses de l`Univ. Laval, Canada, 1991;

Vinogradoff, P., "Common Sense in Law", Oxford University Press, London, 1959;

Voicu, A. V., "The Management of Sporting Organization and Activities", Publishing House "RISOPRINT", Cluj-Napoca, 1998;

Voicu, A., V., "Delinquent Civil Liability with a Special Point of View upon Sporting Activities", Publishing House "LUMINA LEX" , Bucharest, 1999.