What is sport? – A bridge too far

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

What is sport? A question debated around family dinner tables, over a drink in the pub, by the coffee machine at work, and last week, by the Administrative Division of the High Court (the Administrative Court). In particular, is "sport" limited to activities with a physical element?

Much like regular debate, the answer is contextual. The specific context faced by the Administrative Court was determining whether the English Sports Council (more commonly known as Sport England) was entitled to adopt a definition of "sport" which required a feature of physical activity. The English Bridge Union (EBU), sought to challenge the definition adopted, with a desire that bridge (a card-based "mind sport") be recognised as a sport by Sport England.

Background

It is far from straightforward to agree on the definition of sport. There is no universal definition used by national or international bodies. So far as the International Olympic Committee is concerned, bridge is a recognised sport. Within the field of charities, the definition of sport can be satisfied by mental, as well as physical, exertion. Sport England itself has recognised some activities as sports which others may not, including, for example, darts and model aircraft flying.

Why is the question important?

Essentially the reasons fall into two categories: (1) funding; and (2) other non-pecuniary benefits.

A key function of Sport England is the distribution of government funding, provided to Sport England by the Secretary of State for Culture, Media and Sport , as well as the distribution of Lottery funding. In order for an activity to be eligible for funding, that activity must be recognised as a sport.

There are also other benefits that may flow from recognition by Sport England. For example, recognition may boost assistance for competitions and events from local authorities or other bodies.

The question facing the Administrative Court

The Administrative Court was not faced with the wider philosophical question. Rather, whether Sport England was entitled to adopt the following definition of sport within its criteria for activity recognition:

"'Sport' means all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels."

The EBU sought to argue that in adopting this definition, Sport England had misconstrued two phrases which control the scope of Sport England's activities.

1. The first relates to Sport England's objects (as set out in its Royal Charter) which can be relevantly summarised as relating to "sport and physical recreation". Whilst the parties agreed that "and" could be interpreted as "and/or", the EBU submitted that "sport" within this context should not be confined to activities comprising a physical component, and should therefore include mind sports.
2. The second relates to the phrase "physical training and recreation" contained in the relevant legislation describing the activities in relation to which Sport England can make grants. The EBU submitted that "recreation" should not require any element of physical activity, and should therefore include activities such as bridge.

Essentially, the question facing the Administrative Court was whether Sport England correctly interpreted the phrases "sport and physical recreation" and "physical training and recreation" so as to require an element of physical activity.

The decision of the Administrative Court

Having reviewed in detail the historic development of the relevant phrases and the applicable law to interpret the same, the Administrate Court dismissed the EBU's challenge on both grounds. In particular, the Administrative Court found that:

1. there was a compelling case to interpret "physical training and recreation" as meaning "physical training and physical recreation"; and
2. the term "sport" in the phrase "sport and physical recreation" connotes and requires an essential element of physical activity.

The Administrative Court refused the EBU's application for permission to appeal the decision.

What next?

The EBU, and no doubt other mind-sports organisations, are understandably disappointed by the decision. As yet it is not known what further action, if any, will be taken by the EBU. However, for the time being it is clear that at least as far as Sport England is concerned, there is a clear divide between mind and physical sports.

Whether the conclusions of the Government's current consultation, “A New Strategy for Sport”, may begin to bridge that divide is yet to be seen.

A copy of the full judgment can be found here.