Dispute Resolution analysis: The High Court recently gave the green light for a judicial review which could potentially classify the genteel card game of bridge as a sport. Elizabeth Riley, a barrister at Bird & Bird, considers the background to the case and the implications of the decision.

What was the recent High Court case about?

The case concerned Sport England's refusal to recognise the card game bridge as a sport (which, in particular, would have rendered it eligible for certain public funding streams and tax exemptions). The English Bridge Union (EBU) applied to the court for permission to bring a full judicial review of Sport England's decision.

While the judgment is not yet available, Sport England appears to have argued that, based on its definition of sport (taken from the European Sports Charter where 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') bridge falls at the very first hurdle as it is not a 'physical activity' (any more than, say, sitting at home reading a book). In that respect, it said, there is a clear dividing line between bridge (where someone could play the cards on your behalf) and other recognised sports (where no one else could take your place, for example, to take your shot in snooker or rifle shooting). The EBU, on the other hand, argued that bridge should be recognised as a 'mind sport', relying on similar recognition in other EU countries and by the International Olympic Committee (IOC).

In granting the EBU permission for judicial review, the judge reportedly said that it is arguable that bridge is a physical activity if the brain is a muscle, and that bridge in fact requires more physical activity than rifle shooting (through dealing and playing). The judge also commented that the IOC's recognition of bridge and chess as mind sports was 'very significant'.

So, should bridge be recognised as a sport?

If you asked people what they think is a sport (or, the ultimate question, whether bridge is a sport) you'd likely get a wide range of views. However, the answer really depends on why you're asking the question, and posing the question in the abstract doesn't get to the real heart of the issue.

In the UK, sport is not viewed as a public service, and there is no general 'law of sport' as is the case in certain other countries (notably, France's statutory 'code du sport'). However, while sport continues to be run principally by the private sector, there are certain areas where government (and the law) does intervene. In that respect, sport is used as an important and powerful tool in support of public policy goals, recognising the various positive effects that sport can have on society (including social, cultural and health benefits, educational impact, and economic contributions). One such area of intervention is the use of public funds to support the sports sector, and that is where Sport England comes in.

Sport England is a non-departmental public body that is responsible for community sport (responsibility for elite sport and school sport lies with other bodies). As part of that role, it also acts as the gatekeeper for distribution of public funding (in particular, lottery grants and exchequer funding), which is distributed on a competitive basis. In determining which sports it will work with Sport England operates a recognition process, and it is this process that has led to the present dispute. In particular, among other requirements (including consideration of the governance and operational structure of the sport--see the Sport England website for more) the activity in question must meet the European Sports Charter's definition of a sport.

Recognition as a sport by Sport England can also have knock-on effects. For example, it may assist with eligibility for certain tax exemptions (which can be crucial to the finances of a sport). Indeed, it appears that this is the wider issue underlying the EBU's present dispute with Sport England. In 2014 the EBU lost its appeal against HMRC's determination that bridge is not a sport within the meaning of the VAT Directive 2006/112/EC (which would have allowed it to claim the repayment of VAT in relation to competition entry fees (English Bridge Union Limited v HMRC, [2014] UKFTT 181 (TC)). In deciding whether bridge was a sport for those purposes, HMRC also applied the European Sports Charter's definition.

So, should bridge be considered a sport in this context? The High Court judge certainly thought that it was at least arguable. On the other hand, Sport England's view that (in effect) the physical activity must be an essential component of the activity is certainly understandable. However, stepping back from the definition itself, the more interesting and fundamental question is whether Sport England wants to recognise bridge for these purposes (as, logically, that should determine what definition is adopted). Or, putting it another way, what are the aims of such recognition?

In that respect, bridge does have various documented benefits that government might want to encourage through, among other things, access to funding and tax exemptions (for example, the health benefits recognised in English Bridge Union Limited v HMRC, as well as social and educational benefits). It is also interesting in this regard to compare bridge to certain other sports that are already recognised by Sport England, for example, the British Model Flying Association (an air sport). However, it also has to be recognised that public funding is finite, and that such funds must be distributed appropriately and in line with government policies and priorities for sport. The possible impact on tax revenues also needs to be considered. A further concern is that recognising bridge as a sport would open the floodgates to similar applications by many other activities not traditionally considered as sports (such as the other 'mind sports' of chess, draughts, go and Chinese chess. Indeed, the High Court judge reportedly directed that the World Chess Federation (FIDE) be informed of his ruling.

What impact does bridge's recognition (or non-recognition) as a sport by other bodies have on this debate?

Again, it all depends on the reasons why those bodies recognise bridge as a sport. As the tribunal in English Bridge Union Limited v HMRC made clear, the fact that the Charity Commission considered bridge a sport did not assist the tribunal in construing the VAT legislation, as the Charities Act 2006 contained a different definition of sport that specifically recognised games involving mental skill (see here--the Charity Commission considered bridge to be a sport for the purposes of registration of Hitchin Bridge Club as a charity). Similarly, the basis on which the EBU argued that bridge is recognised in other EU countries is not clear.

As to the IOC's recognition of bridge and chess (said by the High Court judge to be 'very significant'), while the respective international federations (the World Bridge Federation and FIDE) appear to have been recognised by the IOC in 1999 as international sports federations, the basis and reasons for such recognition are not clear. Indeed, this was expressly acknowledged by the tribunal in English Bridge Union Limited v HMRC, which noted that recognition by the IOC did not assist as the reasons for such recognition were not evidenced. The 2002 report by the Olympic Programme Commission also suggests that, while 'mind sports' are recognised by the IOC, they are not eligible for inclusion in the Olympic Programme.

Perhaps the most comparable scenario to the present case is the decision of the tax tribunal in English Bridge Union Limited v HMRC (given HMRC's adoption of the European Sports Charter's definition of sport). In that case the tribunal, in upholding the non-recognition of bridge as a sport, focused on the need for a 'significant element of physical activity' and 'an athletic element rather than simply a game'.

Could the High Court decision pave the way for other activities to apply for recognition as sports?

Possibly. For example, if bridge is recognised as a sport it is difficult to see why other mind sports shouldn't be as well. It is also not difficult to envisage similar arguments being made about other activities such as online gaming, Sudoku, or crossword puzzles. However, there is a long way to go yet as the High Court judge simply granted the EBU leave to apply for judicial review of Sport England's decision. As a first step, the EBU would need to be successful in that challenge.

What other potential ramifications might the High Court decision have?

One longer-term possibility might be the creation of some sort of separate category of recognition for so-called mind sports, to reflect the specific reasons behind such recognition. This might also avoid the potential resource concerns of recognising mind sports as part of the recognition of more traditional sports. 

Interviewed by Alex Heshmaty. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor

This article was first published on Lexis®PSL IP & IT on 4 June 2015. Click for a free trial of Lexis®PSL.