Opinion: as recent legal cases around bridge show, defining what constitutes a sport can be a fraught process

Sport is defined from a sociological rather than a legal perspective. There are many reasons why a sports body or individual would want a particular activity to be defined as a sport. A sporting body may receive tax relief or state funding. Certain contact sports, including boxing and rugby, may result in injury that would ordinarily be defined as an assault but, if it occurs in the context of a sport, it immunises the sport from the intervention of the law to a large extent. 

Section 2 of the Sport Ireland Act 2015 defines recreational sport as "all forms of physical activity, which through casual or organised participation, aim at expressing or improving physical fitness and mental well-being and at forming social relationships". The same section defines competitive sport as 'all forms of physical activity which, through organised participation, aim at expressing or improving physical fitness and at obtaining improved results in competition at all levels".

But this definition tells us very little about what constitutes a sport. A sport needs to have a physical element, so mere mental agility is not enough for an activity to be classified as a sport, as the English Bridge Union (EBU) recently discovered in the case of Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs which was heard by the Court of Justice of the European Union (CJEU). 

Bridge players in action in Brighton in 2005. Photo: Bruno Vincent/Getty Images

Not only must a sport have a physical element, there are policy reasons why an activity is not classified as a sport, as the case of United Kingdom House of Lords decision in R. v Brown demonstrates. This case concerned a group of men who engaged in sadomasochistic activities, including genital torture, for the purposes of pleasure. While video cameras recorded the activities, these recordings were intended for private use only among the men involved. On interception of the tapes by the police, the men were charged with assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861.

The men argued that there could be no offence if the parties involved consented. The trial court rejected this contention and the case was appealed by five of the men to the Court of Appeal. The case was sent to the House of Lords which upheld the illegality of the acts. In adopting a paternalistic approach, the House of Lords held that the activities of the men were unlawful irrespective of consent. The House of Lords referred to contact sports as being lawful as there is a public interest in the continued practice of contact sports, including boxing.

Contact sports are deemed to be socially acceptable whereas the acts of the men in Brown were perceived as being deviant and contrary to public policy. The House of Lords held that it was in the interest of the men involved and also for society to prevent a "cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury".  

A sport needs to have a physical element, so mere mental agility is not enough for an activity to be classified as a sport

All the men were consenting adults and none of the participants suffered permanent injury. The activities took place in private chambers, code words were used when the pain inflicted had gone beyond an accepted level and the equipment was sterilised. Lord Jauncey noted that the activities of the men were unlike a situation in sport where there is a "referee present, such as there would be in boxing or a football match". 

This case is important for contact sports, most notably boxing. Boxing, which can cause actual bodily harm, is legal because it is regulated by rules. It is socially acceptable in contrast to the sadomasochistic activities of the men in Brown. Similarly, Lord Jauncey added that there is a public interest in allowing for reasonable surgeries and parental chastisement.

In an Irish context, the Supreme Court has agreed to hear a case involving a former Garda, Stephen Cooper, who was attacked by a fellow prisoner, Gerard Browne. The accused claimed that he had been asked to attack Cooper so that Cooper would be transferred to an open prison. Browne was found guilty of assault causing harm under section 3 of the Non-Fatal Offences Against the Person Act 1997. The trial judge would not permit the defence of consent to be put to the jury and added three years on to Browne’s sentence. This case may have consequences for contact sports, most notably Mixed Martial Arts.

Omar Sharif playing bridge in 1966. Photo:  Hulton-Deutsch Collection/CORBIS/Corbis via Getty Images

R v Brown suggests that for a sport to be classified as such it needs to be regulated by law and be deemed socially acceptable. The UK Law Commission consultation paper Criminal Law: Consent in the Criminal Law provides some guidance on what constitutes a legal definition of sport. It referred to criteria devised by the then British Sports Council (now known as UK Sport) to determine whether an activity is recognised as a sport such as physical skill, physical effort, accessibility, rules and organisation, essential purpose, physical challenge, risk, uniqueness, strategies and tactics, level of participation, martial arts and other considerations

This final point is of particular relevance to the activities practised in R v Brown. The guidelines ask if there any political, moral or other ethical considerations which might prohibit UK Sport from recognising the activity? Otherwise, most of the criteria could be applied to sadomasochism. 

The above guidelines provide some assistance in the quest to find a clear and precise legal definition of what constitutes a sport. Reference may also be made to sports that are recognised by the International Olympic Committee. However, some anomalies may denigrate the effectiveness of using the IOC as a guide. Golf and rugby are very popular participant and spectator sports, but the IOC only decided in October 2009 to include both sports in the 2016 Olympics.

Rory McIlroy watches a putt during the AT&T Pebble Beach Pro-Am

The legal definition of a sport was recently the subject of a judgment at EU level as the CJEU handed down its judgment in the case of The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs. The EBU is the governing body for contract bridge in England and is membership-funded and affiliated to the European Bridge League and the World Bridge Federation.

In the domestic tribunal, the EBU argued that it was entitled to the repayment of VAT in relation to bridge competition entry fees. The UK revenue service refuted the claim on the grounds that it did not consider that bridge constituted a sport for the purposes of an exemption under domestic law (the Value Added Tax (VAT) Act 1994), and EU law (the VAT Directive).

The tribunal acknowledged that "sport normally connotes a game with an athletic element rather than simply a game". But it was concerned that using physical activity as a defining element of a sport meant the public benefit was "skewed towards the young and the section of the population whose participation is promoted …will not be as large".

Miss Peggy Lubbock, Miss Lois Hammond and Miss Barbara Cunard engrossed in a bridge tournament at Londonderry House in London in 1931. Photo: Francis M. R. Hudson/Topical Press Agency/Getty Images

The case was sent by the tribunal to the CJEU under the procedure which allows a member state court or tribunal to refer a case when it is unsure of how to apply or interpret EU law. Before the CJEU gave its judgment, the Advocate General’s (AG) non-binding Opinion was delivered on 15 June 2017 which held that bridge constituted a sport for the purposes of the VAT Directive. AG Szpunar was careful to confine the definition of sport to the VAT Directive as he did not wish to apply a universal definition.

By drawing parallels with recognised sports that do not imbue a physical element including archery, the AG put forward strong arguments in favour of recognising bridge as a sport. The AG also referred to the regional nature of a number of sports, such as hurling in Ireland. He opined that bridge had a significantly broader appeal in some member states such as the UK, Ireland and northern EU countries, thus cognisance needed to be given to "regional perceptions" when defining sport at an EU level. The AG explicitly excluded games of chance from the definition of sport "as there is no relation between the effort invested and the outcome, and the tasks involved do not require any mental or physical skill".

As it is entitled to do so, the CJEU did not follow the Opinion of AG Szpunar. On 26 October 2017, its judgment held that bridge was not a sport for the purposes of the VAT Directive as "sport" in the context of the VAT Directive "is limited to activities satisfying the ordinary meaning of the term ‘sport’, characterised by a not negligible physical element, but not covering all activities that may, in one way or another, be associated with that concept". While bridge is an activity that promotes mental health and well-being, that was not sufficient for it to be classified as a sport for the purposes of the VAT Directive.

Using physical activity as a defining element of a sport meant the public benefit was "skewed towards the young"

However, the CJEU did recognise that bridge could fall under "cultural services", a section of the VAT Directive which provides for exemptions on the grounds of public interest. The CJEU held that bridge could be considered a cultural service "if the activity, in the light of the way in which it is practised, its history and the traditions to which it belongs, in a given Member State, holds such a place in the social and cultural heritage of that country that it may be regarded as forming part of its culture".

Although not recognising bridge as a sport, the CJEU was giving cognisance to the fact that it is a popular activity in a number of states by suggesting that it could fall under cultural services for the purposes of the VAT Directive. While the case concerned the definition of a sport for the purposes of an exemption from VAT, arguably had the CJEU held that bridge was a sport for the purposes of the VAT Directive then it might only be a matter of time before it was considered as a sport in general.

If there was an EU wide definition of sport, it would have consequences for sports councils when it comes to the allocation of funding and the recognition of sports governing bodies of non-physical activities. For instance, it would have consequences for activities including chess, which is not currently recognised as a sport for the purposes of funding and VAT exemption, and the EBU and similar organisations in other Member States can argue their case under "cultural services".

On the one hand, the decision reflects a cautious approach by the CJEU, But it quelled much disquiet that arose after the AG’s Opinion as there was a concern among a number of member states that the recognition of bridge for the purposes of the VAT Directive could be refined in a future decision to include sport in general. 

The views expressed here are those of the author and do not represent or reflect the views of RTÉ