Free speech in sports: Methodological remarks

Abstract

Free speech is undoubtedly relevant in nowadays sports. The media coverage of free speech controversies adds up to a large set of judicial decisions that portray a landscape of instability in case law. This paper aims at explaining – and critically scrutinizing – the reasons behind such instability. It begins with the analysis of the several «models of fundamental rights», deemed as premises that condition the diverging outcomes in judicial decisions on the matter. Subsequently, the prima facie content of constitutional free speech is outlined together with an illustration of several cases in which normative conflicts arise. This analysis is carried out against the background of the constitutional regime of limitation of rights and past case law. Lastly, the paper focuses on the methodology that is deemed correct for the purpose of, if substantial requirements are met, a court overriding prohibitive rules of freedom of speech. Examples are taken from the provisions included in the disciplinary regulation of the Portuguese Football Federation.