#1. History of Origin

N. 1 Art. 68 FC has its origins in Art. 27quinquies aFC, which was incorporated into the constitution in 1970 as a reaction to the rejection of a federal sports constitutional article in 1957 (BBl 1968 I 758 ff.). The provision at that time was limited to physical education and sports instruction as well as a permissive provision for sports promotion. The current version of Art. 68 FC considerably expanded federal competences and expressly obliges the Confederation to promote sport (BBl 1997 I 284).

N. 2 The constitutional revision of 1999 transformed the former permissive provision into a promotion obligation ("The Confederation promotes") and expanded competences to include the operation of a sports school as well as the possibility of declaring sports instruction at schools mandatory. This strengthening of federal competences reflects the growing importance of sport for health, integration and education.

#2. Systematic Classification

N. 3 Art. 68 FC is located in the section "Education, Research and Culture" and has close connections to the education articles, particularly to → Art. 62 FC (School System) and → Art. 67 FC (Promotion of Children and Young People). The norm establishes a parallel competence of the Confederation and cantons in the field of sport, whereby cantonal jurisdiction fundamentally remains.

N. 4 The provision is to be understood in the context of health promotion (→ Art. 118 FC) and youth promotion. Sports instruction at schools touches on cantonal school sovereignty according to Art. 62 para. 1 FC, which leads to questions of competence delimitation (see N. 12).

#3. Normative Content

#Concept of Sport and Promotion Obligation (para. 1)

N. 5 According to Zen-Ruffinen, the concept of sport encompasses all forms of physical activity aimed at improving physical and psychological condition, developing social relationships or achieving competitive results. This broad definition includes mass sport, recreational sport and competitive sport equally.

N. 6 According to Biaggini, the formulation "The Confederation promotes" establishes not only an authority, but an obligation for active sport promotion. The special mention of training underscores the importance of coach training and sports pedagogical qualification. The Confederation fulfils this obligation primarily through the Sport Promotion Act (SpoFöG) and the Youth+Sport programme.

#Federal Sports School (para. 2)

N. 7 The Federal University of Sport Magglingen (EHSM) is the only federal school directly anchored in the constitution. It serves the education and continuing education of sports teachers, coaches and other specialists in sport. The constitutional anchoring underscores the importance of high-quality sports education at the national level.

#Youth Sport and Mandatory Sports Instruction (para. 3)

N. 8 Para. 3 grants the Confederation two different competences: a general regulatory competence for youth sport and the specific authority to declare sports instruction at schools mandatory. These competences were implemented with Art. 12 SpoFöG, which prescribes three weekly sports lessons in compulsory school.

#4. Legal Consequences

N. 9 Art. 68 para. 1 FC does not give rise to any individual entitlement to specific sport promotion measures. The norm obliges the Confederation to provide adequate resources and programmes, but leaves it considerable scope for design. Private parties cannot directly invoke Art. 68 FC to demand specific promotional services.

N. 10 The sports school according to para. 2 must be operated as a federal institution. Delegation to cantons or private parties would be unconstitutional. Financing takes place through the ordinary federal budget.

N. 11 Mandatory sports instruction according to para. 3 establishes for pupils a participation obligation that can only be exempted for important reasons (particularly health-related ones). BGE 135 I 79 confirmed that religious reasons also fundamentally do not suspend the mandatory character.

#5. Disputed Issues

N. 12 The scope of federal competence to regulate school sports is disputed. In an opinion dated 28 February 2009, Biaggini takes the view that the new education constitution did not change the constitutional authority of the Confederation regarding sports instruction. In contrast, Ehrenzeller argues that Art. 62 para. 1 FC establishes clear cantonal school sovereignty, which is why the Confederation has no competence to intervene in curricula.

N. 13 The question of whether the Confederation has a general "regulatory competence" in the field of sport is controversially discussed. Zen-Ruffinen denies such a general competence and sees in Art. 68 FC primarily a promotion authority, but not a regulatory authority. This view is supported by Judgment 2C_383/2010 E. 2.4, according to which Art. 68 FC provides for "no actual regulatory competence".

#6. Practice Guidelines

N. 14 When implementing mandatory sports instruction, a distinction must be made between compulsory school and upper secondary level. While three weekly lessons are mandatory at primary level, according to Judgment 2C_824/2019 110 annual lessons are sufficient at upper secondary level, which can be flexibly distributed over the school year.

N. 15 Sports associations cannot invoke Art. 68 FC to obtain tax exemption for pursuing public purposes. Judgment 2C_383/2010 clarified that while sport promotion constitutes a federal task, private sports associations primarily pursue self-help purposes and are therefore not tax-exempt despite certain pursuit of public purposes.

N. 16 Religiously motivated exemption from swimming instruction is subject to strict requirements. The Federal Court weighs the integration function of joint sports instruction higher than individual religious reservations, provided that organisational measures (separate changing rooms, burkini) can accommodate religious concerns (BGE 135 I 79).

#Caselaw

#Sport promotion as a state responsibility

Judgment 2C_383/2010 of 28 December 2010 para. 2.4 The Federal Supreme Court confirms that sport promotion constitutes a constitutional responsibility of the Confederation pursuant to Art. 68 Federal Constitution. This provision provides for federal competence for the «comprehensive promotion of sport», but not an actual regulatory competence. The Confederation is increasingly engaging in sport-related areas such as health, leisure activities, education and competitive sport.

«Art. 68 Federal Constitution provides for federal competence for the 'comprehensive promotion of sport', but not an actual 'regulatory competence'. The Federal Council's concept for sports policy in Switzerland of 1 November 2005 shows that the Confederation does not see itself merely as a distributor of funds, but is becoming active in ever more sport-related areas.»

#Physical education in schools

Judgment 2C_824/2019 of 31 January 2020 para. 7.2 The Federal Supreme Court clarifies the requirements for physical education in upper secondary schools. Unlike in compulsory school, three weekly physical education lessons are not mandatory at upper secondary level II. The requirement of 110 annual lessons pursuant to Art. 49 para. 3 Sport Promotion Ordinance allows for flexible implementation.

«If Art. 49 para. 3 Sport Promotion Ordinance requires that at least 110 physical education lessons be taught per school year in upper secondary schools, it cannot be concluded from this that these must be taught weekly with three lessons each. The regulation of 110 lessons per school year was intended to enable flexible implementation.»

Judgment 2C_824/2019 of 31 January 2020 para. 7.3 The distribution of physical education lessons must take place «regularly» throughout the entire year. A timetable with two weekly physical education lessons and supplementary sports days, special weeks and winter sports camps satisfies this requirement, provided that the overwhelming majority of lessons are distributed evenly over the school year.

«If only two physical education lessons are taught during a school year and the difference to the required 110 annual physical education lessons is made up for otherwise, the regularity of physical education is not called into question. For the overwhelming majority of physical education lessons are taught distributed evenly over the school year.»

#Freedom of religion and physical education

BGE 135 I 79 of 24 October 2008 para. 7.3 The Federal Supreme Court clarifies that mandatory swimming lessons at public schools have a sufficient legal basis and do not constitute an inadmissible interference with freedom of religion, even for Muslim children. In weighing interests, the integration efforts of the Muslim population must be taken into account.

«Combined with flanking measures, the contested obligation does not constitute an inadmissible interference with freedom of religion, even for Muslim children. In weighing interests, particular consideration must be given to the manifold efforts to integrate the Muslim population group.»

#Youth+Sport programme

Judgment A-358/2020 of 8 February 2021 The Federal Administrative Court deals with abuse within the Youth+Sport programme. The decision concerns the review of Youth+Sport courses by the Federal Office of Sport and demonstrates state supervision of sport promotion in the youth sector.

#Talent development and out-of-canton schooling

Judgment VB.2023.00269 of the Administrative Court of Zurich of 29 September 2021 The Zurich Administrative Court holds that children subject to compulsory education with exceptional sporting talent generally have no right to attend an out-of-canton talent school. Cost approval for an out-of-canton sports school requires the absence of an equivalent alternative within the canton.

«Children and young people who are still subject to compulsory education and display exceptional sporting or artistic talent generally have no right to attend an (out-of-canton) talent school. The disputed criteria of a lack of equivalent alternative within the canton and good accessibility of the out-of-canton school offering prove to be appropriate.»