Issues of Using Evidence and the Process of Proof in the Court of Arbitration for Sport (CAS)

Vasilyev, Ilia A.; Yurlov, Sergey; Kisliakova, Natalia

doi:10.17323/2072-8166.2019.5.167.198

Cited by 5 publications

(1 citation statement)

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“…This article demonstrates the shift of the burden of proof onto the athlete who must establish his non-intentional violation. The problem of burden of proof in antidoping disputes was recently discussed in a study by Russian sports lawyers (Vasilyev, Yurlov, Kisliakova 2019).…”

Section: Introductionmentioning

confidence: 99%

Exceptional circumstances beyond International Swimming Federation Doping Control Rules: The Sun Yang case of Court of Arbitration for Sport

Vetrova¹,

Khalatova²,

Kashaeva

2021

Vestnik SPbSU. Law

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The authors refer to the exceptional circumstances surrounding Sun Yang’s violation. The athlete intervened in the doping control procedure in several ways. First, he questioned the proper accreditation of the IDTM’s (The company “International Doping Tests and Management”) Samples Collection Personnel, one of which photographed him. This officer was suspended from urine sampling, but there was no longer a male specialist on the IDTM’s Samples Collection Personnel. Therefore, the collection of urine samples did not take place due to the athlete’s actions. A general distrust of IDTM’s Samples Collection Personnel due to inappropriate photographing was the catalyst for follow-up action. Secondly, the athlete required IDTM’s Samples Collection Personnel to confirm his credentials (accreditation) from the anti-doping organization, despite the submission of documents by IDTM’s Samples Collection Personnel following the International Standard for Testing and Investigations. Not having received the additional and, in the opinion of the athlete, necessary documents, he refused to participate in the doping control procedure as a whole, tearing up his previously given written consent. Finally, the athlete took part in the destruction of blood samples with a hammer, but his role in this process was controversial. A prerequisite for the destruction process of the samples was the assistance of the IDTM’s Samples Collection Personnel, who handed them over to the athlete in response to insistent demands. The listed circumstances, which are exceptional, however, could not affect the reduction of Sun Yang’s period of ineligibility, since the FINA (International Swimming Federation) Doping Control Rules, based on WADA (World Anti-Doping Agency) Code 2015, do not imply such a basis. The new WADA Code 2021 offers a more flexible concept of liability and takes into account exceptional circumstances that in subsequent disputes about tampering can be established based on the example of the dispute CAS 2019/A/6148.

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Section: Introductionmentioning

confidence: 99%

Exceptional circumstances beyond International Swimming Federation Doping Control Rules: The Sun Yang case of Court of Arbitration for Sport

Vetrova¹,

Khalatova²,

Kashaeva

2021

Vestnik SPbSU. Law

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New Legal Reality: Exterritoriality of Criminal Law as Part of the Fight Against Doping, or the Legal Phenomenon of the «Rodchenkov Act»

Ushankov,

Zaitseva

2022

Russian Journal of Criminology

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The development of the world anti-doping culture is currently accompanied by numerous problems. This article presents an analysis of the principle of extraterritoriality of criminal law in connection with the «Rodchenkov Act». Information wars, the application of alternative standards of proving, the use of collective liability mechanisms towards «clean» athletes and, finally, the «Rodchenkov Act» - all of these initiated destabilizing changes in high-performance sport. The goal of current research is to determine the specific features of the practice of extending criminal norms beyond the national jurisdiction as part of fighting against doping. The authors analyze the foreign experience of using the exterritoriality of the USA from the standpoint of the effects doctrine. It is stated that, as a legal phenomenon, the USA-promoted exterritoriality contradicts the UNO Charter, and undermines the global anti-doping rules of the World Anti-Doping Agency (WADA) by actually duplicating the law within just the limits of its own jurisdiction. It appears that the extraterritorial character of law is a legal construction that is exceptional and impossible in the normal course of events whose application (the «Rodchenkov Act») could result in the loss of the spirit of «clean sport». It is determined that the uniformity of rules for all athletes, organizations and other persons in high-performance sport is the basis of WADAs anti-doping program. The practice of anti-doping investigations is examined. The authors stress the necessity of keeping the balance between the interests of the sides in the procedures of doping control while observing the principle of fair play. The authors have summarized the historical experience and presented the practice of extending criminal norms beyond the borders of national jurisdiction as part of fighting against doping.

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Legalization of Ethics in Sports and Disciplinary Liability for “Disrepute”

Vasilyev

2023

KULR

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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.

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Issues of Using Evidence and the Process of Proof in the Court of Arbitration for Sport (CAS)

Cited by 5 publications

References 0 publications

Exceptional circumstances beyond International Swimming Federation Doping Control Rules: The Sun Yang case of Court of Arbitration for Sport

Exceptional circumstances beyond International Swimming Federation Doping Control Rules: The Sun Yang case of Court of Arbitration for Sport

New Legal Reality: Exterritoriality of Criminal Law as Part of the Fight Against Doping, or the Legal Phenomenon of the «Rodchenkov Act»

Legalization of Ethics in Sports and Disciplinary Liability for “Disrepute”

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