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Short Studies in International Law

International
Sports Law:
An Introductory
Guide

Ian S. Blackshaw
Short Studies in International Law
Short Studies in International Law are short-book publications in international law.
The volumes cover emerging topics in international law and inform academics and
practitioners timely of recent developments. The hardcover books are compact
volumes of 100–150 pages and are characterized by fast, global electronic
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More information about this series at http://www.springer.com/series/15741

Ian S. Blackshaw

International Sports Law:

An Introductory Guide

123
Ian S. Blackshaw
Sains-les-Fressin, Pas de Calais
France

ISSN 2520-887X ISSN 2520-8888 (electronic)

Short Studies in International Law
ISBN 978-94-6265-197-5 ISBN 978-94-6265-198-2 (eBook)
DOI 10.1007/978-94-6265-198-2

Library of Congress Control Number: 2017943235

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg

© T.M.C. ASSER PRESS and the author 2017

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Foreword

I am very pleased and honoured to write this Foreword.

For a while, there was a significant debate around the question whether one
should speak of sports law, or whether it should rather be sport and the law. The
argument was that sports law was no more than various other fields of law applied
in the context of sport.
However, it has long since become clear that sport poses various unique ques-
tions to the law and that various aspects of sport are regulated in ways that have no
equivalent in other spheres of business and governance. For instance, safeguarding
the integrity of sport against practices, such as doping and match-fixing, hardly has
any clear parallels outside the world of sport. In addition, the International Olympic
Committee enjoys a special legal status, similar to that enjoyed by international
organisations in public international law. As a result, it is now generally accepted
that sports law is a distinct subject worthy of recognition, study and research in its
own right.
This work by Prof. Dr. Ian Blackshaw is a testament to that.
Professor Blackshaw has succeeded in providing, within a very limited space, a
broad glimpse of sports law as a subject and the various intricacies that it holds.
Any one of the topics addressed in this work on its own can be the subject of a
major textbook. To condense all of this into a single overarching work in a way that
maintains the significance of each part and explains it in sufficient detail so that the
reader can understand how it impacts on sport requires a lot of skill and expertise—
the kind of skill and expertise that one can only acquire with decades of experience
in this field of law. And there are few who can challenge Prof. Blackshaw for his
vast experience, skill and expertise in sports law.

v
vi Foreword

This work provides a handy guide to sports administrators, coaches and par-
ticipants with little knowledge of the law. It also provides a handy overview of the
subject, which experienced sports lawyers and scholars can consult to get a basic
understanding of an issue before seeking further guidance from more specialised
and more detailed works.

January 2017 Prof. Dr. Steve Cornelius

International Sports Law Centre
University of Pretoria
Pretoria, South Africa
Preface

Sport has been practised and followed from ancient times to the present day, when
it is now a multi-billion dollar ‘industry’ in its own right. There is so much at stake
not only on but also off the field of play to engage sports fans and also a wider
general audience.
Consequently, sport today is not confined only to the back pages of newspapers,
but is increasingly finding its way onto the front pages as well. Sports cases and
developments are also widely covered in other non-print media, especially on the
Internet and other digital platforms, as news stories in their own right.
This is especially true of doping cases, which, sadly, are on the increase, despite
the efforts of such bodies as the World Anti-Doping Agency, and regularly hit the
headlines. In addition, other sports cases and disputes, dealt with, as part of an
ever-increasing workload, by the Court of Arbitration for Sport, are also finding
their way into our 24/7 media and becoming a staple part of our daily general and
sporting news diet.
Sports law is likewise developing apace, as a subject in its own right, and is
being studied more and more by a wider constituency at all levels of interest and
competency. There is thus a need, not only amongst students, lawyers, accountants
and sports marketers, promoters and agents, but also amongst sports administrators,
for some basic and general knowledge of the legal aspects of sport.
This introductory guide is intended, therefore, to satisfy these needs, which are
not currently being met in the present sports law literature. This book will also, we
believe, find a market amongst general readers interested in the subject and sports
followers and fans as well.
Although, within the ambit of the book, the topics covered are necessarily
selective, sports law being a vast subject, the author and publishers believe that the
topics are representative of many of the issues that face the world of sport and also
claim the attention of the media at the present time. However, the phenomenal rise
of ‘E-Sports’ - competitive video gaming - deserves, at least, a passing reference: in
2016, E-Sports generated revenues of US$493 million and reached a global audi-
ence of 320 million followers, and are poised to becoming an Olympic sport in the
near future!

vii
viii Preface

Throughout the book, the reader is referred to articles, publications and other
materials and resources that provide further information and critical analysis on the
various subjects treated in the text and thus enhance its value and usefulness.
The Law is stated as at 1 January 2017, according to the sources available at that
date.

Cambridge, UK Prof. Dr. Ian S. Blackshaw

January 2017
Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 European and US Models of Sport . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 Sport and the General Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4 Sports’ Governing Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5 IP and Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6 Sports Image Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7 TV and New Media Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8 Footballers’ Employment Contracts and Transfers . . . . . . . . . . . . . 75
9 Sport and the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
10 Doping in Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
11 Sport and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
12 Corruption in Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
13 Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
14 Some Other Landmark Sports Cases . . . . . . . . . . . . . . . . . . . . . . . . . 145
15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

ix
Chapter 1
Introduction

Abstract In this introductory chapter to the book, we consider sport as a social

phenomenon and also, nowadays, as a lucrative global business; we also seek to
define sport in terms of its political, social and health aspects at the grass roots and
elite levels. Additionally, we refer to a number of issues facing sport in the modern
technological world, including doping and corruption, that are covered in the book.

Keywords Olympism IOC Olympic Charter Paralympism IPC Council of




Europe The Sports Industry

Sport is an integral part of society throughout the world and has been practised, in
some form or another, since ancient times. For example, sporting events were an
essential and popular part of the social calendars of Ancient Greece and Imperial
Rome.
Indeed, according to the Olympic Charter,1 the practice of sport is a human right
which is to be enjoyed without any kind of discrimination:
Every person must have the possibility of practising sport, without discrimination of any
kind and in the Olympic spirit, which requires mutual understanding with a spirit of
friendship, solidarity and fair play.2

1
In force as from 2 August 2016.
2
Paragraph 4, Fundamental Principles of Olympism, Olympic Charter. IOC website: www.
olympic.org.

© T.M.C. ASSER PRESS and the author 2017 1

I.S. Blackshaw, International Sports Law: An Introductory Guide,
Short Studies in International Law, DOI 10.1007/978-94-6265-198-2_1
2 1 Introduction

Likewise, the International Paralympic Committee (IPC) exists

“to enable Paralympic Athletes to achieve sporting excellence” and believes that “all
individuals should enjoy equal access and opportunities for leisure, recreation and
sporting activities, and such rights be granted and guarded by the legal and administrative
systems by the responsible governments and communities”.3

As Prof. Rian Cloete, Director of the Sports Law Centre, at the University of
Pretoria, and Editor of an ‘Introduction to Sports Law in South Africa’,4 points out
in his introductory remarks:
The influence of society on sport is not always positive. Whenever societies have experi-
enced a state of decline, sport as followed suit. During the decline of the Roman Empire in
the first five centuries AD, bribery and corruption were the order of the day and this
impacted on the ancient Olympic Games. One tale tells of the Roman Emperor Nero who
ensured that he would be the only participant in the horse race. Although he did not even
finish the race, he was crowned victor and Olympic champion! Eventually, things became
so appalling that Emperor Theodosius the Great banned the Olympic Games in 394 AD
after almost a thousand years of competition.5

So, what is sport?

Probably the best definition is the one provided by the Council of Europe:
Sport means all forms of physical activity which, through casual or organised participa-
tion, aim at expressing or improving physical fitness and mental well-being, forming social
relationships or obtaining results in competition at all levels.6

Certainly this is the traditional and generally accepted one, especially when
deciding whether a particular activity claiming to be a sport, usually for funding
purposes, for example, through National Lottery Grants, or for tax purposes, for
example, for claiming exemption from VAT, is or is not a sport.7
Furthermore, according to the Council of Europe, Sport makes diverse
contributions:
[…] to personal and social development through creative activities, recreational pursuits
and the continuous search for improving sporting performance and […] that physical
exercise helps promote both the physical and the mental well-being of individuals.8

Also, according to the IOC, Olympism exists to promote certain characteristics

and qualities of sport as follows:

3
IPC Position Paper on Human Rights. IPC website: www.paralympic.org.
4
LexisNexis Butterworths, Durban, South Africa, 2005.
5
Ibid., para 1.04.
6
Article 2.1 lit. a, Council of Europe Revised European Sports Charter of 16 May 2001.
7
See the post of 22 September 2015 on the Global Sports Law and Taxation Reports (GSLTR)
website (www.gsltr.com) on ‘Is Bridge a Sport?’ by Prof. Dr. Ian Blackshaw. Also, the post by
Prof. Blackshaw of 16 October 2016 reporting on the English High Court Decision of 15 October
2016 that Bridge is not a sport!
8
Ibid., para 7.
1 Introduction 3

1. Olympism is a philosophy of life, exalting and combining in a balanced whole the

qualities of body, will and mind. Blending sport with culture and education, Olympism
seeks to create a way of life based on the joy of effort, the educational value of good
example, social responsibility and respect for universal fundamental ethical principles.
2. The goal of Olympism is to place sport at the service of the harmonious development of
humankind, with a view to promoting a peaceful society concerned with the preservation of
human dignity.9

And according to Justice Mukul Mudgal, the Chief Justice of the High Court of
Punjab & Haryana, India:
Sports have also played a key role in nation-building and fostering unity and friendship
between warring nations and hostile communities. For instance, during the 1955
India-Pakistan Test cricket series, an estimated 20,000 Indians were given permission to
attend the Third Test in Lahore creating what one newspaper described as ‘the biggest
mass migration across the frontier since Partition.’10

Mention may also be made of the 1914 Christmas Truce during the Great War of
1914–18 and its famous football match played on Christmas Day of that year
between the warring sides!
Apart from its political, social, cultural and health aspects, all of which are
important, sport is also now an industry in its own right, worth more than 3% of
world trade and 3.7% of the combined GNP of the Member States of the European
Union. Taking association football for example, the world’s most popular and
lucrative sport, top professional footballers, like Wayne Rooney, Captain of both
Manchester United FC and the England National Team, can expect to earn
£260,000 per week!
Such salaries are considered, in some quarters, excessive and obscene—even for
sports’ ‘stars’!
Writing in the UK ‘The Times’ newspaper on 31 August 1994, the doyen of
sports writers, Simon Barnes, had this to say:
Sport is caught up in a spiral of inflation: inflation of interest, inflation of media coverage,
inflation of financial possibilities for all concerned. Each one of these feeds on the other’s
increase: the radius of the spiral decreases, the velocity increases, and round and round and
round we whiz, dizzy, disorientated and sometimes more than a trifle sick.
Groggy sporting administrators find themselves at permanent loggerheads with life as they
seek to reconcile the two great irreconcilables. The value of sport and its ever-increasing
price.
As sport is seen more than ever before, is followed more closely and is contested more
intensely, so more things go wrong, and more things are seen to go wrong. Sporting bodies
were originally established to organise a bit of serious fun. These days, the same organi-
sations are trying to run billion quid industries. It is hardly surprising that things get out of
step sometime. And, as the spiral tightens and quickens, the anomalies will come at us more
and more often.

9
Paragraphs 1 and 2 Fundamental Principles of Olympism, Olympic Charter.
10
Law & Sports in India, 2011, LexisNexis, Haryana, India, p. 37.
4 1 Introduction

Today, his remarks are even more pertinent and valid!

Mention may also be made of the increasing and eye-watering amounts of
transfer fees being paid for football players, culminating in the world-record fee of
almost £90 million paid during the 2016 ‘Summer Transfer Window’ for the French
mid-fielder Paul Pogba to re-join Manchester United FC from the Italian Club
Juventus. When he was transferred from Manchester United to Juventus in 2012,
his transfer value was only worth £800,000!
As far as association football is concerned, therefore, the words of the legendary
Liverpool Football Club Manager, Bill Shankly, ring true even more so today as
when they were first uttered several decades ago. Asked if football was a matter of
life and death, he replied: “Oh no! It’s much, much more important than that!”
Football has also provided sports lawyers and administrators with a leading
decision in the European Union (EU), namely, the Jean-Marc Bosman case, which
has changed the landscape of association football for ever. In fact, there is an
important and evolving EU Sports Law, which we cover in the book, and,
notwithstanding ‘Brexit’, may only be disregarded at one’s peril.
With so much money circulating in sport, it is perhaps not surprising that there is
widespread doping—an ever present scourge of sport—and other forms of cheating,
where winning at all costs seems, with an increasing number of sports persons, to
mean more than following the Olympic ideal, holding that it is not the winning but
the participation in sport that counts; corruption, especially at FIFA on an
unprecedented scale, the effects of which are still being felt around the world in the
so-called ‘beautiful game’, and also match-fixing; all of which, sadly, are on the
increase.
In this book, we cover all these issues, as well as the functions and powers of
sports governing bodies at the international and national levels; Sports TV and new
media rights, especially the streaming of sports events through the Internet and
Mobile Phones; sport and human rights, especially the right to a fair trial and
privacy, particularly in gender and doping cases; and dispute resolution, focussing
particularly on the settlement of sports-related disputes by the Court of Arbitration
for Sport (CAS) and the development of a ‘Lex Sportiva’ during its 32 years of
operations.
Finally, we also include brief summaries of some other landmark sports cases
not mentioned elsewhere in the book, which have had—and continue to have—an
important impact on the development of sports law.
The Law is stated as at 1 January 2017, according to the sources available at that
date.
Chapter 2
European and US Models of Sport

Abstract In this chapter, we describe and compare the European and US Sports
Models and reach some general conclusions.

Keywords European Model of Sport
US Model of Sport
Sports Franchises

Contents

2.1 Introductory ....................................................................................................................... 5

2.2 The European Model......................................................................................................... 6
2.3 The US Model ................................................................................................................... 7
2.4 Conclusion ......................................................................................................................... 7
Further Reading ......................................................................................................................... 8

2.1 Introductory

When it comes to the practice of sport and the organisation and staging of sports
events, Europe punches way above its geographical size and population compared
with the rest of the world. As the European Commission pointed out in para 1.3 of
‘The European Model of Sport: Consultation Document’:
Traditionally the Member States of the European Union have hosted a significantly large
percentage of world sports events: for example, 54% of Summer Olympics between 1896–
1996 and 50% of football World Cups between 1930 and 1998. This remarkable con-
centration of world sport events within the EU has been partly a result of history. Europe
saw the start of the industrial revolution. The ensuing development towards economic and
social progress enhanced the development of sport in Europe. Traditionally has its origins
on the European continent; the Olympic movement, for example, came about as the result
of a European initiative. Moreover, most of the important international sport organisations

© T.M.C. ASSER PRESS and the author 2017 5

I.S. Blackshaw, International Sports Law: An Introductory Guide,
Short Studies in International Law, DOI 10.1007/978-94-6265-198-2_2
6 2 European and US Models of Sport

are based in Europe. Europe can therefore be considered the powerhouse of world sport.
The latest developments are evidence that sport in Europe is very dynamic.1

In view of the importance of sport in Europe, this book will concentrate mainly
on European legal issues and developments, but, as sport is also well developed in
the United States (US), especially when it comes to the marketing of sports persons
and events, a word or two needs to be said on the manner in which sport is
organised in the US (the so-called ‘closed system’) compared with the sports model
which has emerged in Europe (the so-called ‘open system’).
For an in depth study and comparison of the two systems, see the article by Prof.
James Nafziger, entitled, ‘A Comparison of the European and North American
Models of Sports Organisation’.2

2.2 The European Model

The European Model of Sports Organisation is characterised essentially by two

features: the so-called ‘Pyramid Structure’ and the ‘Promotion and Relegation
System’.
Under the ‘Pyramid Structure’, the clubs form the base of the pyramid. Regional
Federations form the next level; the clubs are usually members of these organisa-
tions. National Federations, one for each discipline, represent the next level.
Usually all the Regional Federations are members of the respective National
Federation. The apex of the pyramid is formed by the European Federation, which
are organised along the same lines as the National Federations.
The pyramid structure implies interdependence between the levels, not only on
the organisational front, but also on the competitive side, because competitions are
organised on all levels. This can be compared very specifically with the ‘horizontal
structure’ of US sport, where there is little connection between the professional
leagues and the lower echelons of any particular sport. As far as the system of
‘Promotion and Relegation’ is concerned, this system is also one of the key features
of the European Sport Model. It is designed to reward merit and promote equality of
opportunity and balance competition among teams. The promotion and relegation
system also performs an ethical function by mandating relegation to a lower tier of
any team that has engaged in specified questionable practices.
In comparison, in the US, the model of ‘Closed Championship/Leagues and
Multiple Sports Federations has developed’. The same teams, once in this
Championship, keep on playing in this League. In Europe, there is a new tendency
to try to combine both systems. UEFA (The European Governing Body of
Association Football) has suggested that clubs could qualify for European com-
petitions not only by a system of ‘promotion and relegation’, but also by fulfilling

1
(1998) DG X, http://europa.eu.int/comm/sport/index.html.
2
Nafziger, The International Sports Law Journal, ISLJ 2008/3-4, pp. 100–108.
2.2 The European Model 7

certain economic and technical criteria. The idea of a so-called ‘Super League’
could be of interest to the top European clubs with more money for them and less
money spent on administration.
Finally, the European Model of Sports Organisation also places great importance
on ‘grass roots’ involvement, that is, relying on volunteers at the local level, rather
than paid professionals, to train athletes and organise competitions in their local
communities.

2.3 The US Model

As mentioned, the US Model of Sports Organisation is essentially a ‘closed’ one

and also a ‘horizontal’ one. The US Sports Model is less easily defined, mainly
because there is little agreement on what exactly it is other than what, to a certain
extent, the European Sports Model is not.
Sport in the US is not a pastime or a means of contributing to society, as it is in
Europe, but is essentially a business which is engaged in mainly by professionals.
However, some of the negative features of the European Sports Model, such as
ultra-nationalism, racism, intolerance, and hooliganism, are generally absent in US
sport.
Other features of US sport are the ‘draft system’ or player recruitment; salary
caps; ‘collective bargaining agreements’ which are well established and effective as
players’ unions are strong; and ‘collegiate sport’ which operates at an amateur level,
although educational scholarships, worth a lot of money, are on offer to student
sportsmen and women. This may be regarded as ‘payment in kind’.
There are also differences in the application of EU Competition Laws and US
Anti-Trust Laws to sport in Europe and in the US respectively, as well as the legal
ownership and commercial exploitation of Sports TV and Media Rights in both
systems.
Major League Teams in the US are commercial franchises and investments in
them are protected by the ‘closed’ and ‘horizontal’ system. Membership of a
League is an essential requirement for a Team to compete, and it has been well said,
therefore, that, although in Europe there are no Leagues without teams, in the US
there are no Teams without Leagues.

2.4 Conclusion

In conclusion, it may be said that globalisation and increased commercialism in

sport on both sides of the Atlantic is leading, to a certain extent and in certain
respects, to a convergence between the European and US Models of Sport at all
competitive levels.
8 2 European and US Models of Sport

Indeed, as Prof. Nafziger points out in his above-mentioned article on page 108:
The variations in practices among the several North American professional leagues as well
as the much-neglected similarities between features of the European Sports Model and the
actual characteristics of sports organisation in North America further call into question both
the reality of a North American Sports Model and the extent to which its features actually
differ materially from those of its European sibling.
Traditionalists may lament the changes that are occurring rapidly in the organisation of
European sports, such as the creeping Americanization, as it has been dubbed, of English
football. But the current developments are often positive. For example, the perennial issue
among NCAA [National Collegiate Athletic Association] schools in North America of
allocating funds between money-making and money-spending sports is becoming signifi-
cant in Europe as the more monolithic, single-sport structure of its organisational pyramid
falls apart. Also, European sports will likely continue moving toward a collective bar-
gaining system and an exemption from EC competition law for labour agreements.
These developments should certainly accrue to the benefit of players even as they threaten
to undermine the carefully crafted vertical integration of the European sports pyramid. The
more the models stay the same, the more they change.

Further Reading

Halgreen L (2004) European Sports Law: A Comparative Analysis of the European and American
Models of Sport. Forlaget Thomson, Copenhagen
Chapter 3
Sport and the General Law

Abstract In this chapter we examine the relationship between sporting activities

and the general law, both civil and criminal, and the role of the courts. We also look
at the rules of natural justice and the application of the restraint of trade doctrine to
sporting situations, as well as reviewing some leading sports cases.

Keywords Natural Justice Restraint of Trade Ben Smoldon Michael Watson





Rudy Tomjanovich Davies Barnes Amir & Butt

Contents

3.1 Introductory Remarks ........................................................................................................ 9

3.2 The Role of the Courts ..................................................................................................... 10
3.2.1 Generally................................................................................................................. 10
3.2.2 The Rules of Natural Justice.................................................................................. 13
3.2.3 Restraint of Trade................................................................................................... 14
3.3 Civil Law ........................................................................................................................... 15
3.3.1 Ben Smoldon Case ................................................................................................. 15
3.3.2 Michael Watson Case............................................................................................. 16
3.3.3 Rudy Tomjanovich Case ........................................................................................ 17
3.4 Criminal Law..................................................................................................................... 18
3.4.1 R v. Davies ............................................................................................................. 18
3.4.2 R v. Barnes Case.................................................................................................... 18
3.4.3 R v. Amir & Butt Case .......................................................................................... 19
Further Reading ......................................................................................................................... 20

3.1 Introductory Remarks

Generally speaking, sport is self-regulatory, but, in the final analysis, is subject to

the general law as interpreted and applied by the ordinary courts of justice. For the
most part, sport is subject to the particular rules and regulations of the relevant

© T.M.C. ASSER PRESS and the author 2017 9

I.S. Blackshaw, International Sports Law: An Introductory Guide,
Short Studies in International Law, DOI 10.1007/978-94-6265-198-2_3
10 3 Sport and the General Law

sports body, especially ‘the rules of the game’, at the national, regional and
international levels, which, generally speaking, the courts will respect.
Take association football, for example. In England, it is governed by the English
Football Association (the FA)1 and is also subject to the rules and regulations of the
European Governing Body of football, UEFA (Union of European Football
Associations),2 and also to those of the World Governing Body, FIFA.
The relationship between these three Governing Bodies is a complex one, based
essentially on the general principles of the law of contract and, in particular, the
doctrine of ‘privity of contract’. In general, persons not parties to a contract neither
enjoy benefits nor incur obligations under it. See, for example, the
Wilhelmshaven FC Case3 discussed in the next chapter, at Sect. 4.6. In effect, a
parent sports body, legally speaking, makes rules only for its members.

3.2 The Role of the Courts

3.2.1 Generally

In England, there is a long established legal tradition that the Courts do not gen-
erally intervene in sports disputes. They prefer to leave matters to be settled by the
sports bodies themselves, considering them to be in the words of Vice Chancellor
Megarry in the case of McInnes v. Onslow-Fane ([1978] 1 WLR 1520, on p. 1535)
“[…] far better fitted to judge than courts.”
And, Lord Denning, a former Master of the Rolls, went further and expressed the
point in the following succinct and characteristic way in the English case of
Enderby Town Football Club Ltd v. Football Association Ltd ([1971] 1 Ch. 591, on
p. 605): “[…] justice can often be done in domestic tribunals better by a good
layman than a bad lawyer.”
‘Domestic Tribunals’ are bodies outside the hierarchy of the courts system and
include sports disciplinary bodies.
Also, in the English case of Cowley v. Heatley,4 the Court observed that:
Sport would be better served if there was not running litigation at repeated intervals by
people seeking to challenge decisions of the regulating bodies.

However, the English Courts will intervene in sports cases when there has been a
breach of the rules of natural justice (Revie v. Football Association, The Times, 19
December 1979) and also in cases of ‘restraint of trade’, where livelihoods are at
stake (Greig v. Insole, [1978] 3 All ER 449). These legal concepts are explained in
Sects. 3.2.2 and 3.2.3 respectively.

1
The English Premier League has its own rules and regulations, but is ultimately subject to the FA.
2
Website: www.uefa.com.
3
SV Wilhelmshaven eV/Norddeutscher Fußball-Verband eV, 21 September 2016, BGH.
4
(1986) T.L.R. 430.
3.2 The Role of the Courts 11

However, the British sprinter, Dwain Chambers, failed in the English High Court
on 18 July 2008 to get the lifetime ban imposed on him by the British Olympic
Association (BOA) for a doping offence committed in 2003, for which he was
banned for two years, on the grounds that the Court did not consider that the BOA
ban constituted an unreasonable restraint of trade! This case was another example of
the reluctance of the English Courts to intervene in sports disputes, leaving them to
be dealt with by the sports’ governing bodies themselves. See the author’s critique
of this decision in The International Sports Law Journal.5

3.2.1.1 The Position in the United States of America

A similar legal situation exists in the United States: see Harding v United States
Figure Skating Association [1994] 851 F Supp 1476.
In Harding, the Federal District Court made the following observations:
The courts should rightly hesitate before intervening in disciplinary hearings held by
private associations […]. Intervention is appropriate only in the most extraordinary cir-
cumstances, where the association has clearly breached its own rules, that breach will
imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has
exhausted all internal remedies. Even then, injunctive relief is limited to correcting the
breach of the rules. The court should not intervene in the merits of the underlying dispute.

3.2.1.2 The Position in Canada

In Canada, the situation is similar to that in the US: see McCaig v. Canadian
Yachting Association & Canadian Olympic Association [1996] Case 90-01-96624.
In McCaig, the Judge made the following pertinent remarks about the role of the
Courts in the resolution of sports disputes:
… the bodies which heard the appeals were experienced and knowledgeable in the sport of
sailing, and fully aware of the selection process. The appeal bodies determined that the
selection criteria had been met…… [and] as persons knowledgeable in the sport […].
I would be reluctant to substitute my opinion for those who know the sport and knew the
nature of the problem.

3.2.1.3 The Position in the European Civil Law Countries

Generally
In the European Civil Law Countries too, the Courts are generally amenable to the
parties trying to settle their disputes extra-judicially by arbitration and other

5
ISLJ 2008-3/4, p. 155.
12 3 Sport and the General Law

alternative dispute resolution (ADR) methods Accordingly, the Courts will adjourn
proceedings in cases where there is an express contractual requirement to refer
disputes to, say, arbitration, to allow this process to be pursued. Only in the event of
failure to reach an extra-judicial resolution of the dispute, and in some other very
limited cases, will the Courts be prepared to entertain a suit and adjudicate on the
dispute.
Also, generally speaking, the Courts will not intervene in sporting disputes,
which concern the ‘rules of the game’ of the sport concerned.
The position in Switzerland provides a good example of these general principles.

Switzerland
Under Article 190(2) of the Swiss Federal Code on Private International Law of 18
December 1987 a decision of the Court of Arbitration for Sport (CAS), regarded as
an arbitral award under Swiss Law, can only be challenged in the following
circumstances:

(a) if a sole arbitrator was designated irregularly or the arbitral tribunal was constituted
irregularly;
(b) if the arbitral tribunal erroneously held that it had or did not have jurisdiction;
(c) if the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed
to rule on one of the claims;
(d) if the equality of the parties or their right to be heard in an adversarial proceeding was
not respected;
(e) if the award is incompatible with Swiss public policy.

Also, the Swiss Federal Tribunal (the Swiss Supreme Court) has held, as part of
a seminal ruling of 15 March 1993 on the juridical nature of awards made by the
Court of Arbitration for Sport (CAS), that any judgement, that has as its sole object
the application of games rules, is “[…] in principle, outside a juridical control”.

Spain
In some jurisdictions, for example, Spain, there is a legal requirement for the parties
in dispute to attempt a resolution through ‘conciliation proceedings’ conducted
before a Judge (‘acto de conciliacion’) before being permitted to proceed with an
ordinary legal action before the Courts. In such proceedings, the Judge explores
with the parties in dispute the possibilities of their settling the dispute amicably.

Italy
There is a similar situation in Italy where parties in sports disputes are obliged first
to refer them to a special Chamber of Conciliation and Arbitration for Sport
(Camera di Conciliazione e Arbitrato per lo Sport)—a kind of Italian CAS.

The Position in the Rest of the World

A similar situation is developing in other parts of the world too, in countries that
follow the English Common Law, as well as others with different legal systems, as
sport is a global phenomenon and sports disputes are an increasingly common
occurrence throughout the world.
3.2 The Role of the Courts 13

Thus, solutions need to be found quickly, informally, effectively and inexpen-

sively to resolve sports disputes of various kinds, not only purely sporting ones,
such as eligibility issues, but also commercial ones, such as disputes under
Sports TV Agreements, which, with so much money at stake in sport nowadays, are
continually on the increase.
However, the settlement of sports and other disputes by ADR is not a panacea
for all ills and is not, therefore, appropriate in all cases. For example, where
injunctive relief or a legal precedent is required. In such cases, the Courts are the
most appropriate forum.6

3.2.2 The Rules of Natural Justice

The rules of natural justice are:

• the rule against bias—‘nemo iudex in causa sua’—no person may be a judge in
their own cause; and
• the right to a fair hearing—‘audi alteram partem’—let the other side be heard.
It has also been held that “Justice should not only be done, but manifestly and
undoubtedly be seen to be done”.7
The English Court of Appeal Flaherty v. National Greyhound Racing Club8
highlighted the following principles of natural justice to be followed by a regulatory
sports body:
1. Full details of the case to be answered by the ‘accused’ should be given in
advance.
2. The ‘accused’ should be given the opportunity to present evidence in his/her
defence.
3. The ‘accused’ should be given the opportunity to present witness evidence and
to cross-examine witnesses for the ‘prosecution’.
4. There should be a right to a fair hearing and a reasoned decision by an unbiased
and impartial tribunal.
In this case, Flaherty’s greyhound tested positive for a banned substance and,
after a stewards’ inquiry, at which he was present, it was held that he was in breach
of the rules of racing. He was, therefore, fined and reprimanded. Flaherty chal-
lenged this decision in the Courts on the ground that the inquiry had not been fairly
conducted. He won at first instance, but lost on appeal. The Court of Appeal

6
See ‘Sporting injunctions’ by Prof. Dr. Ian Blackshaw, ‘Global Sports Law and Taxation
Reports’, December 2014, pp. 22–26 (both inclusive).
7
(1924) 1 KB 256, p. 259.
8
[2005] EWCA Civ. 1117.
14 3 Sport and the General Law

unanimously held there had not been any procedural unfairness by the stewards and
their decision was a just one and should, therefore, stand.

3.2.3 Restraint of Trade

The Common Law Doctrine of Restraint of Trade was explained by Lord

MacNaghten in the House of Lords Decision Nordenfelt v. Maxim Nordenfelt Guns
and Ammunition Co.9 as follows:
The public have an interest in every person’s carrying on his trade freely; so has the
individual. All interference with individual liberty of action in trading and all restraints of
trade of themselves, if there is nothing more, are contrary to public policy.

In other words, as a matter of public policy, a person should not be limited in

his or her ability to earn a living by any restriction that goes beyond what is
reasonably necessary to achieve some legitimate and desirable aim. There must be
some legitimate interest to be protected to justify the restraint which must be
reasonable in scope, in line with public policy.10 Restraints of trade are prima
facie void.
In the Nordenfelt case, Thorsten Nordenfelt, a manufacturer specialising in
armaments, had sold his business to Hiram Stevens Maxim. They had agreed that
Nordenfelt “would not make goods or ammunition anywhere in the world, and
would not compete with Maxim in any way for a period of 25 years.” The House of
Lords held:
• the provision prohibiting Nordenfelt from making guns or ammunition was
reasonable; and
• the provision banning competition ‘in any way’ was an unreasonable restraint of
trade and, therefore, invalid.
Thus, any bans from competing imposed by a sports’ disciplinary body on elite
sports persons must comply with the restraint of trade/public policy doctrine and be
reasonable in their scope in terms of their extent, area and time. See the Matuzalem
Case and the ban imposed on him by the FIFA Dispute Resolution Chamber. In that
case, the ban was held to be contrary to Swiss public policy.

9
[1894] AC 535.
10
See the English Appeal Case of Herbert Morris Ltd v Saxelby [1916] 1 AC 688. For a covenant
in restraint of trade to be treated as reasonable in the interest of the parties: “it must afford no more
than adequate protection to the benefit of the party in whose favour it is imposed” (Lord Parker of
Waddington).
3.3 Civil Law 15

3.3 Civil Law

3.3.1 Ben Smoldon Case11

The claimant was a flanker playing in an under-19 colts rugby union match. The
game was a local derby and was described as being full of niggling challenges. One
forward player on the opposition side had been sent off and, contrary to the rules in
place for junior rugby, the referee had allowed uneven scrums to take place, with
eight players on one side and seven on the other. Further, because of the regularity
of scrums collapsing, the hooker on the claimant’s team had swapped positions with
the claimant because his neck was too sore to continue playing hooker.
An abnormally high number of scrums continued to collapse despite warning
from both coaches and touch judges. The referee failed throughout the match to
implement the ‘CTPE’ procedure for the engagement of scrums, which requires two
packs to crouch, touch shoulders and pause before engaging the scrum. Shortly
after half-time, the scrum collapsed yet again, breaking the claimant’s neck and
leaving him paralysed.
The court held that the law was as stated in Condon v. Basi [1985] 1 WLR 866
and Elliot v. Saunders and Liverpool FC (1994) Unreported. Thus, it must be
established whether a duty was owed by the referee to the players and whether he
had breached that by being negligent in all the circumstances. It was held that the
referee owes a duty to the players to exercise the degree of care for their safety that
is appropriate in the circumstances and to act as would a reasonable and competent
referee. Further, there are no public policy grounds that can operate to exclude the
liability of sports’ officials.
To establish a breach of the duty owed by the referee, the court held that the
threshold of liability is high and will not be easily crossed because of the inherently
risky nature of contact sports such as rugby.12 However, by failing to operate the
‘CTPE’ procedure, failing to ensure that there were equal numbers on both sides of
the scrum, failing to take notice of the warnings of the coaches and the injury to the
original hooker and failing to provide adequate instruction to the players to help
them prevent collapsing the scrum, there was sufficient evidence that the referee
was in breach of his duty. The rules of the game, particularly those relating to the
engagement of scrums, were not definitive of liability but were part of the cir-
cumstances that must be taken into account when trying to establish a breach of
duty. As a result, the defendant had failed to exercise reasonable care and skill in
the performance of his duty and had therefore breached his duty by failing to act in
the manner of a reasonable and competent referee.

11
Smoldon v Nolan and Whitworth [1997] ELR 249.
12
See ‘The expendables: do sports people really assume the risk of injury?’ by Steve Cornelius,
‘Global Sports Law and Taxation Reports’ December 2015 and March 2016, which deals with the
application of the defence of ‘volenti non fit injuria’ (consent to risk injury) to injuries incurred by
participants in contact sports, such as rugby and boxing.
16 3 Sport and the General Law

Smoldon was awarded £1.8 million in damages for his injuries, but received only
£1 million. The defendant was unable to meet the claim because his earnings were
insufficient, and the compensation received was the maximum available under the
Rugby Football Union’s insurance scheme, which was in place to protect referees in
such situations. Since this case, the RFU have encouraged all clubs to have their
own insurance policies and have increased the maximum pay out under its own
policy.
The Judge explained that his decision was reached on the particular facts of the
case and was not of general application throughout sport. However, the case does
establish the precedent that, where a referee negligently allows breaches of the
safety rules of a sport, as opposed to the playing rules, then a player, who is injured
as a result of those breaches, can bring a civil law action in negligence against the
referee.
This principle has since been applied to adult rugby.13

3.3.2 Michael Watson Case14

The claimant was a professional boxer fighting in a bout sanctioned by the

defendant, the British Boxing Board of Control (BBBC). The fight was stopped in
the final round when the referee decided that the claimant could no longer defend
himself. He returned to his corner and quickly became unconscious at 10.54 pm. At
11.01 pm he was seen by the ringside doctor. He was received at the North
Middlesex Hospital at 11.22 pm, where he was prepared for operation. He was
finally transferred to St Bartholomew’s where he was operated on at 12.30 am and a
sub-dural haematoma removed. The claimant was paralysed on his left side and had
further physical and mental disabilities.
It was alleged that the BBBC owed a legal duty of care to the claimant and had
breached it by not providing adequate rules to boxing promoters on the correct
medical services that should be present at each bout.
The court held that the BBBC did not create the initial danger from the punches
to the boxers. Only promoters, who were licensed by the BBBC and who followed
its safety rules and advice, could hold a bout. As the BBBC is a body with spe-
cialised knowledge in matters of safety and this knowledge is relied on by those
involved with the sport, including both boxers and promoters, it is, therefore, under
a duty to ensure that its rules provide a safe system by which injuries incurred as a
result of a fight can be properly treated.

13
See the English Court of Appeal case of Vowles v Evans and The Welsh Rugby Union Ltd
[2003] EWCA Civ 318.
14
Watson v British Boxing Board of Control [2001] QB 1134.
3.3 Civil Law 17

Further, as the safety advice is relied on by the boxers for their own safety, there
is sufficient proximity between the BBBC and the boxers for a duty to arise in
respect of the insufficiency of the guidelines regarding post-bout medical treatment.
The duty was breached by the BBBC failing to provide adequate guidelines on
what medical personnel and equipment should be present at a bout. The guidelines
that were available were not in accordance with current medical best practice. The
most important time to begin treatment of a brain haemorrhage is in the minutes
immediately following the initial injury. The longer the delay, the greater the
likelihood that the injuries suffered would be exacerbated by the swelling damaging
the brain. The ringside treatment should, therefore, be much quicker and should
begin preparing the injured fighter for surgery. If it had been, then it is likely that
claimant’s injuries would have been significantly reduced.
As serious brain injury is a foreseeable though infrequent outcome of a boxing
bout, there should be in place guidelines that reflect this risk and ensure that a
boxer’s health is protected as far as possible.
By reason of its position as the governing body of the sport and that an important
part of that role was to produce safety guidelines for bouts, the BBBC owed a duty
of care to the claimant. That duty was breached by the inadequacy of the guidelines
and this caused foreseeable harm by exacerbating a serious brain injury incurred
during the course of the bout.
Thus, the BBBC was liable in damages to the claimant because the BBBC had
ignored current medical practice, of which it was aware, and had not updated its
guidelines to ensure that all boxing bouts complied with these requirements. Thus,
the BBBC had not acted as a reasonable and competent governing body.
He was awarded £400,000 in damages by the English High Court and legal
liability and the actual award were upheld on appeal by the BBBC to the Court of
Appeal.

3.3.3 Rudy Tomjanovich Case15

During a National Basketball Association match on 9 December 1977, the claimant,

Rudy Tomjanovich was punched in the face by an opponent, Kermit Washington,
and caused serious injury.
The claimant sued Washington and his employer, the Los Angeles Lakers, who
were owned by the defendant company.
The claimant succeeded in his claim that the club was ‘vicariously’ liable for the
injuries caused to him, because it was aware of the violent disposition and playing
style of Washington and had done nothing to discourage it and continued to pick
him despite it.
The claimant was awarded US$3.2 million in damages in respect of this assault.

15
Tomjanovich v California Sports Inc. [No. H-78-243 (SD Tx 1979)].
18 3 Sport and the General Law

3.4 Criminal Law

3.4.1 R v. Davies16

Following a collision in a football match, the two players involved began to take up
their positions for the resulting free kick.
The defendant approached the other player and struck him in the face. Although
the victim was able to play on for the remainder of the match, it was subsequently
found that he had suffered a fractured cheekbone.
The Court held that this was an offence against the person, under Section 47 of
the UK Offences Against the Person Act, 1861, of the utmost seriousness if in the
course of a game of football there should be an unprovoked and deliberate assault of
this kind. As serious injury had resulted, a prison sentence of six months was
justified.

3.4.2 R v. Barnes Case17

Barnes appealed against a conviction for unlawfully and maliciously inflicting

grievous bodily harm, contrary to Section 20 of the UK Offences Against the
Person Act, 1861. The victim had suffered a serious leg injury as a result of a tackle
by Barnes during an amateur football match. His appeal was upheld. He argued first
that, although the tackle was ‘hard’, it was fair, and that the resulting injury was
accidental and incidental to what could be expected in a game of football. Secondly,
he claimed that the trial Judge’s summing up had been inadequate on the appli-
cation of the Criminal Law to ‘sporting assaults’. And, thirdly, an underlying
element of the appeal as a whole, was the general issue when it might be appro-
priate for criminal proceedings to be brought after an injury had been caused to one
player by another during a sports event.
The Court of Criminal Appeal restated the long held view that, when injuries are
suffered in the course of a contact sport, the defence of implied consent (‘volenti
non fit injuria’) to a threshold determined by public policy applies. In this instance,
the Appeal Court held that the threshold of this defence depends on all the cir-
cumstances and including a recognition that, in highly competitive sports, where
conduct outside the rules could be expected to occur in ‘the heat of the moment’,
such conduct might not reach the threshold required for it to be criminal.
The Appeal Court further held that the required level of consent to injury in a
contact sport should be viewed objectively as follows:

16
R v Davies [1991] Crim LR 70.
17
R v Barnes [2005] 1 Cr App Rep 507.
3.4 Criminal Law 19

• according to the kind of sport concerned;

• the level at which it was played;
• the nature of the act (‘actus reus’);
• the degree of force used;
• the extent of the risk of injury; and
• being a criminal matter, the state of mind (‘mens rea’) of the defendant.
As regards the Judge’s summing up, the Appeal Court found that it was inad-
equate, because the trial judge had failed to explain to the jury the fact that, because
the tackle was a foul, this did not necessarily mean that the act concerned satisfied
or exceeded the required level of criminal conduct. As mentioned, Barnes’ won his
appeal and his criminal conviction for assault was quashed.
It should be noted that those who inflict injury upon others in the course of a
sporting event, should only be held criminally liable where such conduct is serious
enough to be regarded as a crime.

3.4.3 R v. Amir & Butt Case18

In this case, three players, who had represented Pakistan in Test Cricket took bribes.
Two of these players were Mohammad Amir and Salman Butt, who was captain of
the Pakistan team that toured England during the summer of 2010. The third
cricketer was Mohammad Asif. The three cricketers agreed with the fourth man,
Mazhar Majeed, a UK resident and the agent of Butt and Asif, that ‘no balls’ would
be bowled at agreed and predetermined moments in the Test Match against
England, which took place at The Lords’ Cricket Ground on 26–29 August 2010.
As agreed, three ‘no balls’ were bowled, two by Amir and one by Asif, in a
betting scam, known as ‘spot fixing’. The crickets were paid for their actions. These
events firs came to light as a result of an investigation by the English newspaper,
‘The News of the World’ into possible corruption in international cricket and the
profits to be made by criminals involved in arranging and gambling on ‘spot fixing’.
Amir pleaded guilty on 16 September 2011 before the English Crown Court to
accepting corrupt payments and conspiracy to cheat and, on 1 November 2011, Butt
was convicted by a jury of the same offences. On 3 November 2011, Butt was
sentenced to imprisonment of two years and six months for the first offence and
two years for the second one, both sentences to run concurrently. Amir, who was in
his late teens at the time, was sentenced to six months in a Young Offenders
Institution for each offence, both sentences to run concurrently. Asif was convicted
by the jury on the same date as Butt and sentenced to imprisonment for one year for
each offence to run concurrently. On 16 September 2011, Mazhar Majeed pleaded
guilty to give corrupt payments to Amir, Butt and Asif and also to conspiracy to
cheat. He was also sentenced on 3 November 2011, to two years and eight months’

18
[2011] EWCA Crim 2914.
Another random document with
no related content on Scribd:
drawn over much that was grotesque and ghastly in the popular
superstition. Even Homer reveals forms of terror in Hades; and we
have ugly tales of demons sucking blood, and ravaging the land like
the Ποινή of Megara. It is not necessary to labour this point.
Probably every ancient race has been sorely tried at one time or
other by the burden of demonology; even our hardy ancient kinsmen
of Iceland had their vampires and strangling ghosts, that figure
occasionally in their saga. But the great peoples of our Western
civilisation are those who have struggled free from this obsession
into the light of progressive secular life. Such also—we have the
right to believe—was the early Greek. To draw the distinction too
sharply between the cultured and the uncultured strata may be a
source of fallacy, especially when it is ancient Hellas that we are
dealing with, where the artist was usually a man of the people and
the people certainly delighted in the work of their poets, and were
strangely susceptible to the healing influences of music. If Greek
poetry, then, and art strove to banish the ugliest forms of the demon-
world, and thereby worked with purifying and tranquillising influence
on the temperament, so much the better for the Greek peasant. It is
probably wrong, therefore, to regard the average Hellene as a
nightmare-ridden man. But we might dare to say this of the
Babylonian; and his imaginary terrors were fostered by his religious
liturgical poetry, and to some extent by his art. For most of his hymns
are formulae of exorcisms, incantations against demons and
spectres. But such liturgy played relatively a very small part in Greek
ritual; and this is one of the strongest facts that can be brought to
witness against the theory of early Babylonian influence.
Yet both the Greek and the Babylonian feared the miasma of the
dead. Ishtar’s threats at the portal of Hell, a tremendous outburst of
infernal poetry, is a strong witness to this feeling: “Thou warder, open
thy door, open thy door that I may enter in. If thou openest not thy
door that I may not enter, I will crash thy door into splinters, I will
burst the bolt, I will splinter the threshold and tear up the wings of the
door: I will lead forth the dead that they shall eat and drink: the dead
shall keep company with the living.” What lends part of its force to
this great passage is the dreadful thought that the living should be
haunted by the multitude of the ghosts that would pollute the living
person and the light of day.
Shamash the sun-god is the natural enemy of ghosts, and is
therefore appealed to in the incantation quoted just above to drive
away the demon-spectres. He seems to stand here in the same
relation of antipathy to the ghost-world as the “pure” Apollo stood for
the Greek.
The mode and the place of burial will often throw light on the
feelings of the living in regard to the departed. The peoples of the
Minoan-Mycenaean culture interred their dead, Homeric society
cremated them, while the recent excavations have revealed that both
systems were in vogue side by side throughout an indefinite period
in Mesopotamia;208.1 and such being the facts, we cannot safely
deduce from them any marked difference in spiritual beliefs. More
illuminating is the fact that the pre-Homeric society in Greek lands
appears generally to have buried its dead in or near their habitations,
as if they desired the companionship of the spirits, agreeing in this
respect with the people of Gezer in Palestine.209.1 In Mesopotamia,
though in very ancient times the dead were sometimes buried in
temples, the fashion generally prevailed of establishing a necropolis
outside the city, as was the rule also in post-Homeric Greece. This
difference alone suggests that the fear of the ghost was less
powerful in pre-Homeric Greece than in Mesopotamia.
It is clear, however, that the Babylonian, like the Hellene, desired
at times to enter into communion with the departed family-ghost; for
in Mesopotamia, as in Hellas, we have clear trace of “parentalia,”
communion-meals to which the ancestral spirits were invited to feast
with the family. In the Babylonian phrase this was called “breaking
bread with” the dead:209.2 the parallel facts in Hellas are familiar to
students.
Moreover, a certain general resemblance in the funeral
ceremonies can be detected between the Eastern and Western
peoples whom we are comparing. When we examine these, we
discover that neither the Homeric nor the Babylonian epic-picture of
the desolateness and futility of the life in Hades corresponded
altogether with the popular faith as expressed in tomb-ritual. It is true
to say of all races that burial customs and eschatological theory are
never wholly harmonised by any coherent logic, and generally reveal
discord between the dogma and the ritual. We can note this in
ancient Hellas and among ourselves; and the discovery of
Babylonian graves reveals it in Mesopotamia. The things found in
these, toys for children, cosmetics for girls,209.3 show that the ideas
so powerfully expressed in “The Descent of Ishtar” about the
barrenness and nakedness of the land of the dead were either not
universally admitted or not acted upon.
Those who equip the dead with some of the things that were of
use and delight to the living must believe that the departed soul
preserves a certain energy and power of enjoyment, though a
gloomy poet among them may enlarge impressively on the
emptiness of death. The unknown Assyrian king who describes in an
inscription the sumptuous burial that he gave his father may not have
been of the same mind as the poet of the Ishtar-epic concerning the
laws of the Queen of Hell:

“Within the grave

The secret place
In kingly oil
I gently laid him.
The grave-stone
Marketh his resting-place.
With mighty bronze
I sealed its [entrance],
I protected it with an incantation.
Vessels of gold and silver,
Such as my father loved,
All the furniture that befitteth the grave,
The due right of his sovereignty,
I displayed before the Sun-God,
And beside the father who begat me,
I set them in the grave.
Gifts unto the princes,
Unto the spirits of the earth
And unto the gods who inhabit the grave,
I then presented.”210.1
 What is the meaning of the act of exposing the gold and silver
vessels to the sun-god Shamash before placing them on the grave?
Was it done to purify them by the aspect of the pure god and thus to
fit them for the use of the glorified dead? The evidence of the
deification of kings has been collected above. But the ceremony in
question is unique, as far as I am aware.
No doubt in ordinary Semitic burials there was great variety in the
grave-offerings: in the graves of Gezer in Palestine, weapons,
jewels, ostrich-eggs, seals, scarabs, amulets, small figures in human
or animal form have been found.211.1
In these practices the primitive Hellene and Semite were on the
same level, nor is it likely that either was the pupil of the other. One
important difference, important at least for our purpose, we can
mark, which is connected with the difference between Hellenic and
Oriental climate. The Hellenic ghost might take water among his
offerings, and the neglected soul might be pitied for being
ἄνυδρος211.2; he might also eat his porridge in the Anthesteria; but
he preferred wine, and the offerings of blood—the αἱμακουρία—and
especially the sacrifice of animals. And we may gather from the
painting on the Phaistos sarcophagus that the blood-oblation to the
dead was part of the pre-Hellenic ritual in Crete. The triple-libation,
also, that Homer mentions, of wine, honey-mead, and water, and
which the later Greeks retained, may be regarded as a Minoan
tradition, for its great antiquity among the Aegean people is attested
by the libation-table found by Sir Arthur Evans in the cave of Zeus on
Mount Dickte. Here there is no trace of the teaching of the
Babylonian priest: nor in the blood-offerings to the dead. For the
Babylonian ghost, parched with thirst in the intolerable heat of
Mesopotamia, craved not blood—which, as far as I know, is never
mentioned in the description of his funeral-rites—but beer in the
earliest period,212.1 and in the later specially water. It is water that
was supposed to make the deceased comparatively happy:

“On a couch he lieth

And drinketh pure water,
The man who was slain in battle.
His father and his mother [support] his head,
 And his wife [kneeleth] at his side.”212.2

This is the lore that in the Epic of Gilgamesh is imparted to the

hero by the ghost of his beloved Eabani, concerning the advantages
of the man who gets due burial over him whose corpse is thrown out
into the field, and whose soul wanders restlessly eating “the dregs of
the vessel, the leavings of the feast, and that which is cast out upon
the street.”
The spirit’s need of water has been an ancient tradition of Semitic
grave-tendance. It is expressed on one of the cylinders of
Gudea;212.3 and in the Curse of Hammurabi, which is a postscript to
his code of laws, he swears that if a man breaks them “his spirit in
the world below shall lack water.”212.4 Clay-cylinders in the museums
of Paris and Berlin, that doubtless come from Mesopotamian graves,
contain inscriptions expressing a blessing on the man who respects
the dead, “may his departed spirit in the world below drink clear
water.”212.5 The old idea survives in the belief of modern Islam that
the soul of the dead yearns for nothing so much as that the rains or
dews of heaven should fall refreshingly on the grave.
These simple differences in the oblations incline us to suppose
that the primitive grave-ritual of Greece was developed
independently of Babylon.
Again, in Greece this tendance of the spirits, in the case of the
great ones of the community—the king, the hero, or the priest—was
undoubtedly linked at an early period with apotheosis of the dead;
and actual hero-cults and actual cults of ancestors became, as we
have seen, a salient phenomenon of Greek religion.
But if this phenomenon is to be noted at all in the Babylonian, it
certainly was not salient. We know that under certain circumstances
the king might be worshipped in his lifetime and after, but we do not
yet know that the departed head or ancestor of the family received
actual cult; where this is asserted by modern scholars,213.1 it may be
that they have not paid sufficient attention to the important difference
that has been defined between the tendance and the worship of the
dead.213.2 This at all events, on the evidence already placed before
us, may be said: in respect of the frequency and force of hero-
worship, Mesopotamia stands at the opposite pole to Greece, and in
testing the question of primitive religious influences of East on West
this fact must be weighed in the scale.
Evidence has been adduced pointing to an early Greek belief that
the spirit of the departed ancestor might reincarnate itself in a
descendant: a belief fairly common among savage peoples. I have
not been able to find any indication of it in Babylonian records, nor
am I aware of any trace of it among other Semitic peoples except,
possibly, a late Phoenician inscription from the tomb of Eshmunazar,
King of Sidon about B.C. 300: in the curse which he invokes against
the violator of his tomb he prays that such a man’s posterity may be
rooted out: “May they have no root in the world below, nor fruit
above, nor any bloom in the life under the sun.”214.1 These strange
words contain the idea of a family-tree; the fruit and the bloom are
the living members who are in the light of the sun: the root are the
ancestral spirits. If the figure is to be interpreted literally, we must
regard these latter as the source of the life that is on the earth, and
the curse would mean “may the departed ancestors no longer have
the power to reappear in the living.” But we cannot feel sure how
much sense we can press into the words.
So far, it appears that there was little or no communion according
to Babylonian belief between the dead and the living, except at the
family sacramental meal held after the funeral. Only the vexed and
neglected soul of the unburied or the unhallowed dead returned to
disturb the living. And perhaps at times the Babylonians, as the
Israelites, resorted to “necromancy,” the evocation of the dead by
spells, so as to question them concerning the future. One evidence
of this is the passage in the Epic of Gilgamesh, where the hero is
able to evoke the spectre of his friend Eabani and question it. This
was probably suggested by an actual practice, which is attested by
such priestly titles as “he who leads up the dead,” “he who questions
the dead.”214.2 In ancient Greece we have the further evidence,
which is lacking in the Babylonian record, of actual νεκυομαντεῖα or
shrines where the dead were consulted, and some of these may
have descended from the pre-Homeric period; for the evocation of
ghosts seems to have been specially practised in Arcadia, where so
much primitive lore survived.
 As regards the higher eschatology, it would seem that the
Babylonian of the earlier period had not advanced even as far as the
Homeric, possibly the pre-Homeric, Greek. For even in Homer’s
picture of Hades and the after-life215.1 there already is found this
important trait—certain notorious sinners are punished, certain
privileged persons like Menelaos may be wafted to blessedness;
while in Hesiod the idea is outspoken that many of the righteous and
distinguished men of the past enjoy a blessed lot hereafter.215.2
Moreover, this important dogma of posthumous punishments and
rewards is not confined to the world of mythic fancy in the Homeric
epic, to personages such as Tantalos, Tityos, Menelaos: the average
man in the Homeric period might not hope for happiness after death;
but if Homer is his spokesman he could fear special punishment, and
the threat of it was already a moral force.
There are two striking passages in the Iliad, of which the
importance for our present question is often ignored: in iii. 278 there
is reference to the two divinities whom, with Aristarchus, we must
interpret as Hades and Persephone, who punish oath-breakers after
death: in xix. 259 the same function of executing judgment in the
nether world upon the souls of the perjured is ascribed to the
Erinyes: the context in both passages suggests that the poet is
giving voice to a common popular belief.
And in regard to posthumous happiness, early Greece may have
believed more than Homer reports. For who can determine how early
this eschatologic hope came into the Eleusinian mysteries?
The “threats of hell and hopes of Paradise” were never wholly
moralised even by later Greek thought; but here are the germs
discernible in the earliest stage of the religion from which a higher
moral teaching and a new moral force might emanate. But those who
have tried to discover similar ideas in the records of Babylonian
eschatology have hitherto entirely failed. Certain phrases and certain
mythic data may be, and have been, pressed to support the theory
that Babylonian religion and ethics were not without some belief in
judgment and resurrection;216.1 but it is overpressure, and the
phrases may easily be misunderstood. No clear evidence points to
Babylonian belief in posthumous judgment; the title “god of
judgment” attached to Nergal might have merely a political
significance. Again, “awakener of the dead” is a fairly frequent
epithet of many divinities; but no context where it occurs suggests for
it an eschatologic intention.216.2 In the story of Adapa, much of which
is recovered from the Tel-El-Amarna tablets, we find reference to the
“Food of Life” and the “Water of Life,”216.3 that the God of Heaven
might have given to Adapa and thereby made him immortal; and in
the story of Ishtar’s descent, it is said that Allatu kept the waters of
life in hell wherewith Ishtar was restored. But nowhere as yet has
any hint been found that these waters of life were available for any
mortal man, and even Adapa, the son of a god, missed getting them.
In the mythology of Babylon only one mortal, Utnapishtim, the
Babylonian Noah, passes without death to some happy land and
becomes immortal; after the deluge Bel spake thus: “Hitherto hath
Utnapishtim been of mankind, but now let Utnapishtim be like unto
the gods, even us, and let Utnapishtim dwell afar off at the mouth of
the river.”217.1 Again, as the kings might be considered divine in life,
there was no difficulty in supposing that they joined the company of
the gods after death, as was supposed in Egypt. The prayers offered
to deities of the lower world by the Assyrian king on behalf of his
father, in the tablet quoted above, may be thus explained; the nether
powers are entreated to offer no obstacles to his apotheosis. Other
Semitic nations may have had the same belief concerning the future
blessedness of the king; at least an inscription of King Panammu of
North Syria, vassal of Tiglath-Pileser III., points to this, for his
successor is urged to pray that “the soul of Panammu shall eat and
drink with the good Adad.”217.2
But no evidence has as yet been gathered that the ordinary
Babylonian expected any such distinguished lot. Nor does it appear
that prayers were ever offered for his soul, as they might be for the
king’s, and as they habitually were for the ordinary Athenian’s in the
Anthesteria. For the Babylonian, on the whole, the only distinction of
lot between one person and another after death was between him
whose ghost was well cared for by surviving relatives and him who
died an outcast and was neglected. And this was no moral
distinction, nor one that was likely to engender the belief in a
righteous judgment. The duty to the dead was a family duty merely;
nor can I find in the Mesopotamian records any indication of that
tender regard of the alien dead which leads in Greece to a certain
higher morality, and which informs Homer’s pregnant phrase—“it is
not righteous to vaunt oneself over the slain.” We find Assyrian kings
revenging themselves by mutilation and exposure of their enemies’
corpses;218.1 and Semitic ferocity and Hellenic αἰδώς are nowhere
more vividly contrasted than in this matter.
Finally, there appears a difference in character between the
Mesopotamian and the Hellenic deities who were concerned with the
surveillance of the world below. In the religion of the Western people,
the latter are as essentially concerned with life as with death; and
Demeter, Kore-Persephone, Plouton, Zeus Χθόνιος, are benign
divinities whose sombre character is only the reverse of the picture;
there is a chance of development for a more hopeful creed when the
dead are committed to the care of the gentle earth-goddess: and it
was through this double aspect of Demeter-Kore that the
eschatologic promise of the Greek mysteries was confirmed. But the
Babylonian Queen of Hell, Allatu, is wholly repellent in character and
aspect, nor do we find that she was worshipped at all; the only
indication of a softer vein in her is the passage in “The Descent of
Ishtar,” which describes the sorrow of Allatu for the sufferings
brought upon men through the departure of the goddess of life and
love. Nergal, who is probably an usurper of the older supremacy of
Allatu, has indeed a celestial character as the upper god of Kutha,
but even in the upper world his nature was regarded as terrible and
destructive. Only once or twice is the gentler Greek conception
concerning the rulers of the lower world found in Babylonian
literature.219.1 Enmesharra—a name that may be a synonym for
Nergal219.2—is hailed as “Lord of Earth, of the land from which none
returns (Aralu), great Lord, without whom Ningirsu allows nothing to
sprout in field and canal, no growth to bloom.”219.3 Tammuz himself
also is once at least styled “the Lord of the lower world.”219.4 And if
Ningirsu is another name of the underworld-god, which is possible, it
is significant that in an old Babylonian document the cultivator of the
soil is called “the servant of Ningirsu.”219.5 These isolated utterances,
if they had penetrated the popular religious thought, might have
engendered a softer and brighter sentiment concerning the world of
death. But it is doubtful if they were potent enough to effect this.219.6
If the gentle Tammuz had displaced Allatu and Nergal as the Lord of
death, Babylonian eschatology might have had a different career.
But it does not appear that he ever did. Deeply beloved as he was,
he never reached the position of a high god either in heaven or the
lower world.219.7 Nor did his resurrection from the dead evoke any
faith, as far as we see at present, that might comfort the individual
concerning his own lot. The personality and the rites of Attis, “the
Phrygian shepherd,” are closely akin to those of Tammuz, and may
be partly of Babylonian origin: and from these were evolved a higher
eschatologic theory that became a powerful religious force in later
Paganism. On the other hand, in Babylonia the germs of higher
religion in the Tammuz-ritual seem to have remained unquickened;
possibly because they were not fostered and developed by any
mystic society. For it is perhaps the most salient and significant
difference between Hellenic and Mesopotamian religions that in the
latter we have no trace of mysteries at all, while in the former not
only were they a most potent force in the popular religion, but were
the chief agents for developing the eschatologic faith.
This exposition of the Eastern and Western ideas concerning
death and the ritual of the dead is merely a slight sketch of a great
subject; but may serve the present purpose, the testing the question
of early religious contact. We have noted much general
resemblance, but only such as is found among various races of the
world: on the other hand, certain striking differences, both in detail
and general conception, that argue strongly against the theory of
contact or borrowing in the second millennium. Nor can we discover
in the earliest Greek mythology a single Mesopotamian name or
myth associated with the lower world.220.1
 CHAPTER XIII.
Babylonian, Anatolian, and Aegean Ritual.

A comparison of the forms observed in these regions, both in

regard to the minute details and to the general underlying ideas,
ought to contribute independent evidence to the solution of our
question. The transmission of precise rules of ritual from one people
to another, implies an intercourse of some duration, and more or less
regulated; for while the name of a god or a single myth is volatile,
and can be wafted down remote routes by an itinerant trader, or
nomad, or hunter, the introduction of any organised ritual implies, as
a rule, the presence of the missionary or the foreign priest. If, then,
there is any evidence suggesting that Greece in its earliest period
learnt its ritual from Babylon, the importance of this for the ethnic
history of religion will be great indeed. Therefore it may seem that a
detailed comparison of the Eastern and Western ritual is forced upon
us at this point: but it would be premature to expect at present any
finality in the result, because the Mesopotamian documents have
only been very incompletely examined and published by the
linguistic experts. However, the material that they have presented to
us reveals certain salient facts of immediate value for our present
purpose that cannot be wholly illusory, however much we may have
to modify our interpretation of them in the light of future discovery.
As regards the Greek evidence, we are not without fairly ample
testimony concerning the earliest period. The Homeric poems
present us with the contemporary religious practices of at least a
portion of the population whom we may conveniently call the
Achaeans; though we have no right to suppose that they give us a
complete account even of those. Again, as ritual does not spring up
in a day, and has a singular longevity, we may be sure that much of
Homeric ritual is a tradition of the second millennium. Furthermore,
we can supplement Homer by later testimony, of which the lateness
of date is no argument against the primitiveness of the fashions that
it may attest.
 The first superficial comparison of Mesopotamian and Aegean
ceremonies exhibits a general similarity in the mechanism of religion;
an established priesthood, temples, images, altars, prayers,
sacrifice, religious music, holy days, consultation of the gods by
methods of divination, a certain ceremonious tendance of the dead,
these are common features of East and West. But if we were
comparing Hellenic with Egyptian or Vedic, or even Mexican and
Peruvian religion, we should be able to point to the same general
agreement in externals, and many of these institutions are found
broadcast over the modern world of savage society. It will be more
important for the present question, if when we examine the
Babylonian, Anatolian, and Hellenic ritual more minutely we discern
salient differences, especially if these are found in certain organic
centres of the religious life such as was the sacrifice. And we must
first try to determine whether the Hellas of the pre-Homeric days
already possessed all those religious institutions roughly enumerated
above. We can deal to some extent with both these problems
together.
The erection of temples is an important stage in the higher
development of anthropomorphic religion. By the beginning of the
second millennium B.C. this had become an immemorial tradition of
Mesopotamia. But we are not sure at what period the other
polytheistic Semites first evolved the architectural shrine, or how
long they were content to use the natural cave as the house of a
divinity, or a high place or “temenos” with altar or sacred pillar. The
recent excavations at Gezer have revealed a glimpse into the
religion of the prehistoric Semites of Canaan; and one shrine that
seems nothing more than a row of sacred monoliths, but also
another that has more the appearance of an elaborate building of a
sacred character.223.1 Of still greater antiquity was the shrine that
Professor Petrie has discovered at Serabit in the Sinaitic peninsula,
an original cave-temple complicated with the addition of porticoes
and chambers, which he believes to have been devoted to a double
cult, the Egyptian and Semitic.223.2 At all events, we may conclude
that before 1000 B.C. most of the more cultured Semitic
communities in Asia Minor had come to house their divinities in more
or less elaborated shrines.
 As regards the other race that dominated the early period of
Anatolian history, the Hittite, we have the priceless evidence of the
Boghaz-Keui monuments: these reveal a complex temple hewn out
of and into the rocky ravine with a “Holy of Holies” and what appears
to be a sleeping-chamber for the god.223.3 In Phrygia, the artificial
shrine may have been late in supplanting the natural cavern or hole
in the rock that was once the sufficient home of the cult of the great
goddess.223.4 From the coast of Asia Minor we have no evidence
concerning the site of any ancient temple that carries us back to the
early period with which we are dealing.224.1 But the Homeric poems
alone are sufficient proof that the Greeks, for whom they were
composed, were beginning to be familiar with some architectural
type of the deity’s habitation. Apollo Smintheus already has his
shrine and professional priest.224.2 We hear of the temple and
priestess of Athena in Troy,224.3 of her shrine at Athens, which she
shared with Erechtheus,224.4 and the stone-threshold of Apollo at
Delphi, that guarded already many treasures within it.224.5 And we
also know from the excavations of the last few years that the Aryan
invaders from the North, the proto-Hellenes, would find temples on
some at least of the sites of the Minoan culture. Crete has preserved
certain shrines of the second millennium; but except the temple-cave
on Dikte all of them so far are found to be merely domestic chapels
in the king’s palace, as though the king were personally responsible
for the religion of the community: and so at Mycenae, Tiryns, and
Athens, the oldest temples have been found on the foundations of
“Mycenaean” palaces.224.6 But the temples of Hera on the public hill
of Argos and at Olympia are now dated near to 800 B.C.224.7
We have, then, proof sufficient of temple-construction in Greece
and the Aegean islands before the period of Homer; and if we must
have recourse to the theory that the peoples of the Minoan-
Mycenaean culture took their cue in this important evolution from
some foreign civilisation, we should look to Egypt rather than to
Assyria, as nearer and more closely in touch with early Crete.
We may mark here a difference between Eastern and Western
thought in the religious conception of the temple. It was naturally
regarded everywhere as sacrosanct, because permeated with the
virtue of the divine presence; but Babylonia developed this idea with
greater intensity of conviction than the Hellene, and actually deified
the temple itself: the King Nabopolassar (circ. 625 B.C.) prays to it in
such words as these, “Oh, temple, be gracious to the king thy
restorer, and if Marduk enters thee in triumph, report my piety to
him.”225.1 Such exaggeration is not found in Greek religion.225.2
As regards the emblem of divinity, the cult-object set up in the
shrine to attract and to mark the presence of the deity, the
Mesopotamian religion had, as we have seen, already evolved the
eikon or image at some period considerably earlier than the second
millennium, and the statue of the god or goddess had become an
important factor of early ritual: only the emblem of Asshur remained
aniconic.225.3 Of equally early vogue was the image, whether human
or theriomorphic, in Egyptian cult. Again, the early Hittite monuments
reveal it clearly, though aniconic fetiches appear also on the reliefs of
Boghaz-Keui. But it is probable that the Western Semites, and the
tribes of Arabia before 1200 B.C., and many of them for centuries
after, preferred the aniconic emblem, the “Ashera” or post, or heap of
stones or pillar, to the iconic statue; in fact, that temple idolatry in its
developed forms as it presents itself in later Mediterranean history
was alien to the old and genuine tradition of Semitic public worship.
Iconic representations of divinities may indeed be found in Western
Semitic regions, and some of these may be of great antiquity; such
as the silver statue that Thutmose III. (of the fifteenth century B.C.)
carried off from Megiddo and the Lebanon,226.1 or the “Astarte”-
plaques found on the site of Gezer.
But in Semitic communities of the earlier period such objects
belonged rather to the private religion, and the public service centred
round the sacred pillar or stone, as was the case at Mecca both
before and after Islam arose: the evidence for this has been carefully
given and estimated by Robertson Smith and Sir Arthur Evans.226.2
The same statement holds of many of the non-Semitic peoples of
Western Anatolia; in Phrygia, for instance, the earliest emblem of
Kybele was the rude pillar or cone-shaped stone, and this survived
down to late times in the worship of the Anatolian goddess in some
of the Greek cities on the Asiatic coast.
 The recent discoveries in the regions of the Minoan and
Mycenaean culture reveal the same phenomenon: the cults in this
area of the Aegean in the second millennium were in the main
aniconic, the favourite emblem being the pillar or tree-trunk, while in
ancient Crete the axe and even the cross has been found.227.1
Where the divinity appears in full human shape, as the snake-
goddess in the chapel of the cross, the lion-guarded goddess or the
god descending in the air above the pillar on the Minoan seals, these
figures cannot, or need not, be interpreted as actual temple-idols.
And students of the religion of classical Greece are familiar with the
ample evidence of the aniconic tradition in the λίθοι ἀργοί, and the
cone-shaped pillars and stocks that served as divine emblems in the
later temples of Greece.227.2
Now the ethnic question concerning pillar-cult has been critically
discussed by Sir Arthur Evans in his treatise mentioned above; and
the conclusion at which he arrives, that the striking parallelisms in
Semitic Anatolian and Aegean ritual monuments are not to be
explained as the result of direct borrowing from one or the other
group of peoples, but as the abiding influence of a very early
Mediterranean tradition, commends itself as the most reasonable. It
is legitimate to maintain that the earliest Hellenes took over much of
this aniconic cult from the earlier Minoan and Mycenaean civilisation;
but we must not overlook the fact that they also possessed their
own, as a tradition derived from Central Europe.227.3 The most futile
hypothesis would be to assume that the early Greeks derived it from
Babylon, where it is less in evidence than in any other Semitic
community.227.4
The iconic impulse whereby the tree-trunk and pillar were
gradually supplanted by the fully human statue was beginning to
work by the time that the Homeric poems received their present
form; for we have in the Iliad228.1 an undoubted reference to a
seated statue of Athena in her temple on the Akropolis of Troy. We
see here the working of an instinct that was partly religious, partly,
perhaps, aesthetic in its origin. If we are to connect it with foreign
influences, Egypt is at least a more “proximate cause” than Babylon.
 This comparison of the cult-objects set up in shrines or holy places
must take into account the phallic emblem also. This was much in
vogue in the worship of Hermes and Dionysos, and was not
unknown even in the ritual of Artemis.228.2 Herodotus maintains that
it was adopted by the Hellenes from “the Pelasgians,” but, as I have
tried to show elsewhere,228.3 we cannot attach real value to his
induction. It may have descended from an old tradition of European
cult, and it was indigenous among other Aryan nations. As regards
the Mediterranean races, we find traces of its use in the
Samothracian mysteries and in the grave-cult of Phrygia; while some
of the records of the Sabazian mysteries suggest that a phallic
character attached to them. The Minoan-Mycenaean culture has
been regarded as innocent of this, since the phallic emblem does not
appear among the monuments yet found; and this opinion is
somewhat corroborated by its absence in the ritual of Aphrodite, who
may be regarded as a direct descendant of the great Cretan
goddess; for only a late and somewhat doubtful text attests the
dedication of phalloi to the Cyprian Aphrodite.229.1 But the evidence
from the Phrygian religion, that has many ethnic affinities with Crete,
and from such ritual-stories as that of Pasiphae, ought to make us
hesitate.
In Semitic ritual the emblem was certainly not commonly in public
use, even if it occurred at all; the evidence for it, at present
forthcoming, is at least very doubtful; two of the pillars found at
Gezer have been supposed to possess phallic attributes;229.2 but
Robertson Smith has well protested against the foolish tendency to
interpret sacred pillars generally as phalloi,229.3 and even regards
Lucian’s assertion of the phallic significance of the two sacred pillars,
each three hundred feet in height, that flanked the propylaea of the
temple at Hierapolis,229.4 as a mistake suggested to him by the later
Hellenic misinterpretation. Other statements of Lucian in that treatise
may cause us to believe that a phallic character attached to some
part of the ritual of the Syrian goddess; but, if it did, we could not
safely regard it as originally Semitic, since so many ethnic strains are
mingled in that complex religion.
 It is doubtful whether we can recognise the emblem anywhere in
the religious monuments of the Hittites, though Perrot would give this
interpretation to one of the cult-objects carved on the relief of
Boghaz-Keui.229.5
Finally, its vogue in Babylonia seems to have been confined to
private superstition; from the second millennium onwards it was
employed as an amulet, and one of the royal chronicles, about 1110
B.C., is inscribed on a tablet that represents a phallos; but we cannot
argue from this or any other evidence yet adduced, so far as I am
aware, that the emblem was used in public ritual.
So far as we can discern at present, then, the Babylonian and
Hellenic phenomena are divergent in respect of pillar-cult and phallic
ritual.230.1
The most interesting part of our present inquiry is the comparison
of the ceremonies and the concept of sacrifice in East and West. At
the first glance we note, as usual, a certain general similarity. In the
earliest period we find various animals, both wild and domestic,
offered upon the altars, but in Babylonia no special rules concerning
their sex, such as were prescribed by ancient Greek and Judaic
ritual. In all these countries, again, bloodless offerings of cereals and
fruits were in common vogue; and in the earliest Babylonian period,
these were of great variety, an inscription of Gudea mentioning
butter, honey, wine, corn with milk, figs, dates, as the food of the
gods, “untouched by fire.”230.2 We note here the distinction familiar in
Greek ritual, between ἔμπυρα and ἄπυρα ἱερά; only in Babylonia it
does not seem to have been of religious importance, nor to have
been developed, as it was in Hellas, into a ceremonial law that might
engender an important variation in the moral ideas and religious
concepts of the worshipper; for instance, the altar of Apollo at Delos
was called καθαρός, “the pure altar,” because no blood could be
shed upon it, the sacrifices of Athena Lindia at Rhodes, and of Zeus
in certain mystic rites of Crete, were ἄπυρα, or “fireless,” which was
the technical name for the oblations of fruits and cereals; and this
fact of ritual suggested to later Greek philosophy the ethical-religious
view that the “pure,” that is to say, bloodless, offering was the more
acceptable oblation, and was a tradition of the age of man’s
innocence. This pregnant idea has not yet been discovered in
Mesopotamian or in any other old Semitic religion; the Babylonian
deities received both kinds, and perhaps simultaneously, though in
certain special ceremonies the sacred cake, or the liquid offerings of
milk, honey, wine, and oil, might suffice;231.1 while, according to the
ancient Hebraic view, as the legend of Cain and Abel indicates, the
deity appears to prefer blood-sacrifice, though each species is
recognised in the pre-exilic sacral literature.231.2
There is another distinction observed in Greek ritual, that becomes
of some importance in the later history of ascetic purity, that between
wineless offerings (νηφάλια) and those accompanied with wine: the
former being preferred by the powers of the lower world,231.3 though
not invariably, and certainly not by the departed hero. However this
distinction arose—and no single hypothesis explains all the cases—it
was not a Semitic tradition, taught in early days to Hellas. For the
Semitic divinities, including Jahwé, have a genial liking for wine
“which cheereth God and man”;232.1 nor have we any Semitic
example of a taboo on it, except possibly a late Nabataean
inscription from the neighbourhood of Palmyra, mentioning “the god
who drinks no wine.”232.2 Such a phrase would certainly not apply to
the deities of Babylon; even the sun-god, who in Hellas appears to
have been a total abstainer, is offered wine in the Babylonian
service,232.3 and, according to one verse in the Epic of Creation, the
deities actually get drunk,232.4 a grossness which, in the mythic
imagination of Hellas, is only imagined as possible for Dionysos.
We have the right to say, then, that the avoidance of wine in
certain religious services of Hellas helps to confirm the impression of
its early independence of Semitic influences. The Hellenic rule may,
in certain cases, have been derived from an older Aegean tradition;
for two of the deities to whom it was applied, Helios and Aphrodite,
may be believed to have been bequeathed to Greece by the Minoan-
Mycenaean religion; and wine appears to have been prohibited in
certain ceremonies of the Phrygian goddess,232.5 and of a goddess
of Caria.232.6
These are differences of some importance, and doubtless of great
antiquity between the ritual of East and West; more insignificant, yet
of considerable value for our present question, is the fact that
incense was a regular accompaniment of the Babylonian sacrifice,
but did not come into religious use in Greece till some time after the
period of Homer. The fact itself we may consider as proved, both by
Homer’s silence about it, and by the Homeric use of the word θύος,
which means “victim,” and never “incense,” as in later Greek it came
to mean. Had the influence of the Mesopotamian culture been as
strong on Greece in the second millennium as it came to be from
800 B.C. onwards, we should certainly have expected that the
religious use of incense, which is very attractive and spreads easily
from one race to another, would have been adopted by Greek ritual
before the time of Homer.
A more essential point is the sharp contrast preserved in the
Greek rites between the Olympian and the Chthonian ritual; a
contrast that demanded a difference of terminology and dictated
different sacral laws concerning time, manner, place of sacrifice, and
choice of victim. So far, I have not been able to discover any hint of
this important bifurcation of ritual in any Mesopotamian record. The
only nether-world power who was worshipped at all was Nergal,
whether under this or other names; and it does not appear that his
worship differed in any essential respect from that of any other high
god. In fact, the dualism between powers of the upper and powers of
the lower world, which has been generally remarked, and sometimes
exaggerated in Hellenic polytheism, only appears slightly in the
Babylonian, and seems to have left no impress on the divine service
at all.
As regards the animals of sacrifice, the only striking divergence
that Hellenic and Semitic custom presents is in respect of the swine.
The sanctity or horror with which this animal was regarded by most
Semitic societies234.1 is not reflected in any record of early Greek
feeling. Being the Hellene’s common food, he offered it freely to the
deity, though in local cults there might occasionally be a taboo on
this as elsewhere on other victims, such as sheep or goat. But it is
possible that some of the predecessors of the Hellene in Crete and
Asia Minor, if not in Greece itself, shared the Semitic sentiment in
regard to the pig; and the reverence paid to it in Crete, and
especially at Praisos in later times,234.2 may have been a legacy of
Minoan religion; also the Carian worship of Hemithea in which swine
were tabooed may have had ancient links with Crete.234.3 But the
facts of swine-sacrifice or swine-reverence, though they serve to
distinguish the Hellenic from the ordinary Semitic community, do not
bear directly on our present problem, the proofs of early
Mesopotamian influence on the proto-Hellenic race. For the usual
Semitic taboo has not yet been found in Mesopotamia. The pig is
mentioned in a religious text as one of the animals that might be
offered to the gods as a vicarious piacular sacrifice, nor is there any
hint that the animal is being offered as an unclean animal.234.4
Certainly, other animals are mentioned much more frequently as
victims; and I am not aware of any other text that mentions swine-
sacrifice. It was associated in some way with the god Ninib, one of
whose appellatives means “swine”;234.5 but no evidence is yet
forthcoming that it was offered to him.