The norms of ethics in sport have practically merged with the disciplinary norms of sports federations. However, the apparent identity of ethical duties and disciplinary duties has not resolved the existing problems of law enforcement. Ethical norms enshrined in the acts of sports federations must meet certain standards of law. In this case, we are referring to the general principles of legal certainty and proportionality, as well as some other related principles. These principles are the first and main guarantees for the subject of sport in case of a breach of an ethical obligation. They are used at different stages of disciplinary liability. Legal certainty protects against unclear ethical norms and unpredictable consequences of their use by sports federations. Proportionality obliges the measure of disciplinary responsibility not to exceed the necessary negative effect of coercion. The ethical obligation to abstain from disrepute is widespread in the acts of federations. The practice of non-disrepute has been intensified by geopolitical events of 2022. The examples of the practice on non-disrepute do not allow us to state that legal certainty and proportionality really protect in any situation from improper disciplinary liability. The tendency has appeared to understand the reputation of sports and sports federations through the prism of the public positions of a particular federation. Confrontation with such positions automatically creates the risk of disciplinary liability. Similarly, the test for real harm to reputation is ignored unlike potential harm or harm existing only in subjective judgements.
In its decision CAS 2011 / A / 2490, the Court of Arbitration for Sport (hereinafter - CAS) noted for the first time that there is no universal standard of proof (which, for example, is established in the WADA Code in anti-doping violation situations), although there is “consistency in this matter between sports associations is desirable”. Historically, the use of the “comfortable satisfaction” standard has dominated the resolution of disciplinary sports disputes. The strictest standard “without any reasonable doubt” (all doubts in favor of the person brought to justice) is not applied in sports, since it has the legal nature of public procedural branches of national legal systems - for example, in Russian criminal proceedings. At the same time, the refusal to raise the level of the standard of proof to “without any reasonable doubt” does not prevent the jurisdictional body of the federation, CAS from recognizing the court's verdict as evidence, albeit without prejudice. At the same time, in our opinion, such a position is relevant if the denial of the prejudicial significance of national decisions also makes it impossible to confer exclusivity on a sentence, a court ruling as evidence of the charge. In many of the disputes we examined federations had access to investigations by national law enforcements and sometimes to judicial decisions. Such materials, decisions for evidence purposes were provided by the national federations while resolving disputes in the jurisdictional bodies of international sports federations and CAS. With such a status quo, is it possible to speak about the lack of the necessary powers and resources? Formally, yes, because, firstly, it is necessary to gain access to evidence, which is due to the specifics of the legislative system of a particular state and may not be provided, and secondly, the evidence was not collected and evaluated by the bodies of sports federations, the latter use the results of investigative measures and law enforcement activities of state bodies. On the other hand, when the international sports federations and the CAS had at their disposal criminal investigations and decisions of national courts, as well as the jurisdiction of national federations, the evidence was considered as “comfortable satisfaction”. For law enforcement investigations and criminal court verdicts, reference can be made to the higher “without any reasonable doubt” standard of proof, which involves the use of the decisions and evidence presented in it in favor of the manipulation charge in resolving disciplinary disputes at a softer standard. A similar rationale can be extended to decisions of the jurisdictional bodies of national sports federations if they are based on the results of law enforcement investigations and / or court decisions. The authors declare no conflicts of interests.
The story of the possible temporary suspension of Russian figure skating star Kamila Valieva during the 2022 Olympic Games was discussed as actively as the results of the competitions. The figure skater passed a positive doping test during the competition in December 2021 but only found out about it on February 8. The Russian Anti-Doping Agency (RUSADA) applied a mandatory provisional suspension to the athlete. However, on February 9, the RUSADA Disciplinary Anti-Doping Committee, at the appeal of the skater, lifted the decision of RUSADA on suspension and the athlete was able to take part in the Olympic games. The International Skating Union, the International Olympic Committee, and the World Anti- Doping Agency (WADA) filed appeals against the Anti-Doping Committee’s decision. The Court of Arbitration for Sport denied all appeals and affirmed the decision of the RUSADA Anti-Doping Committee. The key point was the status of the skater a protected person according to the view of the WADA World Anti-Doping Code — a protected person. At the same time, the special regime for a protected person did not extend to the standard of proof. Such an athlete, like any other athlete, must prove on the basic of a “balance of probability” that a prohibited substance was entered through a contaminated product to lift a mandatory provisional suspension. In the opinion of the RUSADA Anti-Doping Committee, the athlete was able to prove a “reasonable possibility” of a prohibited substance entering her body through a contaminated product. The literal application of the norm of the All-Russian Anti-Doping Rules, in contrast to the WADA Code, is required to prove that “the violation most likely occurred due to the use of a contaminated product”. The extraordinary situation is commented on by the author.
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