A 'broad, somewhat philosophical question'

However, Mr Justice Dove determined that he would not deal with this 'broad, somewhat philosophical question'. For him the real question was whether SE was wrong, in its recognition policy, to define sport as requiring physical activity. It was his response to that question that gave SE a legal triumph.

SE already recognises over 100 sports. Its current policy adopts the European Sports Charter's definition of sport as 'all forms of physical activity which... aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels'.

The EBU's two main arguments sought to demonstrate that SE had misconstrued the 1996 Royal Charter which created it, and section 3 of the Physical Training and Recreation Act 1937, which enabled the making of grants for 'physical training and recreation'. Neither argument got far, however.

For lawyers inclined to statutory interpretation of rarely encountered Royal Charters, the judgment makes for interesting reading. Unfortunately, those looking for a distinctive sporting flavour are left unfulfilled. Dove J asked whether physical training and recreation, and parliament's will in enacting that phrase, required physical activity. Perhaps unsurprisingly, he found it did. He took into account a government memorandum which demonstrated a clear focus on physical activities at that time. He also found there was a 'compelling case' that parliament had intended physical training and recreation. He did acknowledge, though, that there might be good reasons of public policy to promote mental agility, but that could not justify reinterpreting the 1937 Act to include activities not involving a physical element.

This conclusion made for a prediction interpretation of the Royal Charter phrase as also requiring physicality. Dove J looked to the purposes and powers of SE's predecessor bodies and found a 'continuous unbroken history from 1937 to the present day' of work being confined to 'engaging with physical activities'. This history and the context of the charter was 'strongly supportive' of SE's position that sport was confined to physical activity.

The EBU has little to be
happy about after this hearing. While Dove J had some sympathy with the questioning of SE's recognition of darts and model aeroplane flying, he felt himself bound by the correct legal interpretation of the 1937 Act and Royal Charter.

The judgment undoubtedly reverberates beyond the intricacies of the game of bridge and any other 'mind games' that were banking on a positive result for the EBU. There is no sign that SE will soften its stance in the near future, not least because
of funding pressures. In the meantime, mind sports will
have to content themselves
with the second prize:
while SE does not recognise them, the International Olympic Committee does.

Leanne Woods is a barrister at 1 Crown Office Row. She practices in sport, healthcare, and public law www.1cor.com