Civil Liability In Sports

Civil Liability in Sports

Introduction

In our first approaches to sports responsibility, fundamentally regarding the special regime statute by Law 24.192, we were able to verify the rich and extended jurisprudence about this problem, laboriously constructed about very few precepts- as it happens in the field of Aquilian responsibility- and that took care of the notorious diversity of assumptions that the casuistry proposed. In our country it is clear that only in the last decades of the last century there is a noticeable judicialization of sports damages. Before, the judicial pronouncements were scarce and only responded to damage where the responsibility was evident, mainly due to the reproach as intent or serious negligence that was made to the responsible. It is by the hand of recognition of responsibility for risk, for the reform of the Civil Code by Law 17.711 and then for the dictation of laws 23.184 and 24.192 on the responsibility of the entities participating in sports shows, which produces a notorious increase in judicial claims, of which the numerous failures that have had to be relieved for this work have account.

Sport. Delimitation of the concept

According to the Dictionary of the Royal Spanish Academy, the word "sport" admits two meanings: a) as physical activity, exercised as a game or competition, whose practice involves training and subject to norms;and, b) as recreation, hobby, pleasure, fun or physical exercise, usually outdoors.

In turn, the 23rd edition of the Dictionary of the Royal Spanish Academy, from which the exposed meanings are extracted, refers to two modalities of the generic voice "sport": "adventure sport", which consists in the practice of physical activity, sometimes risky, developed in natural spaces, and "risk sport", consisting of the practice of a physical activity that is a great danger.

Without prejudice to the preceding terminological details, it is necessarydifferentiated legal.

The polysemy of the term "sport", and consequently the various meanings that we can attribute to it, has necessary incidence in the eventual autonomy that, within the objective right, can be preached from the normative regime, and in particular, the specialty that, where appropriate, ispostulates the responsibility derived from the illicit that occur in that area. That is why the concept must necessarily be delimited and at the same time specify the activities that can be qualified as sports- with the purpose of establishing the applicable civil liability regime- and which others must be excluded and therefore submitted to the general regime. First, sport presupposes regulations. These rules, in the case of professional sports, can exhibit greater development and be fixed in written regulations, normally emanating from organizations that nucleate the respective activity, but there are also in amateur practice, in which you can see how sports participants followcertain rules, although in most cases not written.

In similar terms, it has been said that the concept of sport presupposes the presence of three distinctive features: a) motor situation, a feature that opposes verbal and/or cognitive situations;b) Regulated competition, while sports necessarily imply a competition situation subject to a rules system;c) Institutionalization, which results from the sociological recognition to the sport resulting from international instances.

Regulatory framework for sports law

What we call sports law is made up of a very diverse normative material, which is linked to the different areas of law – public and private involved in the problem that is what is available to sports activity. As long as it is an unbashed matter, the determination of the legal framework in which sporting activity is systematized is not systematized. It is possible, then, to review and enumerate the various norms that regulate it. Sports in constitutional texts constitutional texts have not been oblivious to the recognition that sports exercise constitutes a socially necessary activity, and states must seek their promotion and promotion. Thus, the Spanish Constitution of 1978, in its art. 43, recognizing the right to health protection, determines that public authorities will encourage "physical education and sport", as well as "will facilitate the proper use of leisure". This Constitutional Directive has been interpreted and applied by the Spanish Supreme Court and thus has argued that it does not entail only a symbolic meaning, but that it is about protecting an activity of undoubted public utility, aimed at the protection of health in the generic sense, whatwhich is achieved through active sport and the more widespread the better, through popular sport. In the South American Constitutions we find express forecasts in those of Brazil, Colombia, Ecuador, Paraguay, Peru and Venezuela, through provisions that consecrate the duty of the State to promote sports practice as an integral element of health and the quality of life of life ofThe population, and integrating the educational system. The Argentine Constitution does not contain an express forecast aimed at the stimulus and protection of sports activity. In the context in which our Historical Constitution was issued, this problem was, in principle, oblivious to the concerns of the time. Only the constitutional texts- European and American- consecrated from the second postwar.

Notwithstanding the above, it has been proposed- with success- that the right to culture includes, in the breadth of its meaning, to sport as a manifestation of the country’s culture. We find that right to culture recognized both in the historical constitution – arts. 14 and 19- as in the new rights incorporated in the 1994 reform (art. 75, subsections 17 and 19). In turn, the treaties constitutionalized by art. 75, subsection 22, of the National Constitution refer to the right to sport mediately, regarding health and education rights16. The exposed accusations- which refers to the constitutional recognition of the right to sports- contribute to individualizing the principles that must inspire the legislation and depending on which the infra constitutional norms must be applied and interpreted when establishing the rights of athletes andof the institutions aimed at promoting that activity.

The constitutional bases of civil liability

When it comes to damage to the person, which occurred on the occasion of a sporting event, the constitutional directives that lead to sustaining the right not to be damaged and obtain a fair repair. Following the very complete review that Pizarro makes, it is worth mentioning the precedent ‘Santa Coloma’, an opportunity in which the Court said that ‘the sentence appealed injures the alterum non laedere principle that has a constitutional root (art. 19, Fundamental Law) and offends the sense of justice of society, whose validity must be entrenched by the Court within the framework of its powers and in line with the consecrated in the preamble of the Magna Carta ’(consider. 7 °). In ‘Gunther’ and in ‘Luján’ the Court determined that the right to repair of the damage has constitutional hierarchy and, in that line, said that ‘articles 1109 and 1113 of the code. Civil consecrate at the general principle established in art. 19 CN that prohibits men from harming the rights of a third party. The alterum non laedere principle, dearly linked to the idea of reparation, has constitutional roots and the regulations made by the Civil Code regarding the consequent persons and responsibilities does not root them with exclusive and exclusive character in private law, but expressesa general principle that regulates any legal discipline ‘.

Cycling

Sports accidents that occur on the occasion of cycling practice must, as a rule, be analyzed according to the criteria that apply to the rest of the sports. Thus it will correspond to the same standards used about motor racing, motorcycling and even horse races. However, the distinctive nuance is given- without implying a qualitative change in the applicable legal regime- duevehicle equipped with own energy.

As a derivation of the above, if it is a question of judging the responsibility of the containers in the cycling competition, the directives repeatedly exposed in this work must be applied regarding the irreproachability of their conduct, as a rule, except for the cases that import a rude separation of theregulations or seriously guilty action and with more malicious reason. Therefore the friction between corridors, undue overtakes or other regulatory offenses will not justify civilly responsible for the case that this lesion is derived from another cyclist.

The exposed is the solution that must be followed when assessing the cyclist’s behavior and its responsibility against damages suffered by other competitions in the competition. Different is the situation of the organizers of the cycling event and eventually that of the State (national, provincial or municipal) either as an organizer or by omission of their comptroller duties. It is possible, then, stop in the various alleged statements.

Responsibility of the organizer: in front of third parties and regarding cyclists who participate in the competition

As indicated by other sports, cycling competitions must also be submitted to the special regime of responsibility enshrined in the ART. 51 of Law 24.192, due to the broad criteria adopted by said legal provision when characterizing the events included in the standard (“sports show”). It seems clear the application of the objective responsibility provided for in said regulations when it comes to damages suffered by spectators or other third parties (including collaborators of the organizers or auxiliaries of the cyclists) but some qualification is imposed when the victim is the cyclist itself in which caseThe duties of the organizer concur with the risk of competition, tacitly assumed by whom he agrees to participate in it.

It is for the above that, while the indemnity is indisputably guaranteed to the spectator- without damage to assess the concurrence of any of the exempts admitted, in particular the fault of the victim- in the case of the cyclist who participates in the event, the damages that damages thatThey are derived from the normal and typical risks of that sport of those attributable to organizational deficiencies or to vices or defects of the implements used, including the track itself, route or place where the competition takes place. In that sense, it has been said that “certainly the practice of cycling sport-professional or amateur-for