Problems of Proof in Football Clubs` Disciplinary Liability for Match-Fixing: Practice of the Court of Arbitration for Sport (CAS) (2009-2014)

Цзюнь, Цай; Васильев, Илья Александрович; Izmalkova, Margarita; Khalatova, Raisa

doi:10.17516/1997-1370-0398

Cited by 3 publications

(1 citation statement)

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“…S. A. Iurlov rightly notes that some mainstream phenomena in modern sports (such as the application of the principle of collective responsibility, the arbitrary "abolition" of the principle of presumption of innocence in cases of anti-doping violations and others) are contrary not only to the law but also to common sense (Iurlov 2018, 94). Iurlov's list can be extended with the disregard of the presumption of innocence in cases of anti-doping violations and in some others, the use of evidence unacceptable as a matter of law (Jun et al 2019), the known inequality of the parties to the dispute due to the already indicated costs of the proceedings in the CAS (Polukhina 2018, 150), the practice of double prosecution and violations of the principle of proportionality of the sanction to the committed offence (Vasilyev, Sheveleva, Vetrova 2020), etc.…”

Section: Discussionmentioning

confidence: 99%

Co-regulation as a way to improve the effectiveness of legal regulation in sports

Dorskaia

Dorskii

2021

Vestnik SPbSU. Law

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In the article, the authors formulate a definition of co-regulation based on an overview of the approaches available in documents and regulations from the European Union. Co-regulation does not appear to be an intermediate form between state regulation and self-regulation, but rather an independent method of social regulation that can significantly improve legal regulation effectiveness. This is achieved by combining legal principles and norms and state control over their implementation with a broad discretion of professionals in a particular field. Sports is considered a classic case of co-regulation since all Russian sports federations pursue the legally defined goals (development of one or more sports in the Russian Federation, their promotion, organization, sporting events and training of athletes who are members of national sports teams), achieve these goals to realize the legally defined rights and obligations, and undergo evaluation for effectiveness and accreditation by the state. The article thoroughly analyzes the history of adopting a package of amendments to Russian legislation in order to introduce arbitral proceedings for athletes and coaches’ individual labor disputes in 2020. This example demonstrates the weaknesses of exclusive state regulation of legal relations in sports and the shortcomings of self-regulation. Specific problems are identified: their solutions are quite complicated when one has to choose one of the above-mentioned models or their combination, the status of “legionnaires”, duration of labor contracts, conditions for paying salaries and others. The arguments in favor of introducing a national arbitration for athletes and coaches’ labour disputes are considered. The status of Russian and international sports federations is studied in terms of their classification as self-regulatory organizations and the inconsistency of the independent status of sports organizations is demonstrated. In conclusion, the authors propose an amendment to the Federal Law on Physical Culture and Sports in the Russian Federation to legalize co-regulation in this area.

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Section: Discussionmentioning

confidence: 99%

Co-regulation as a way to improve the effectiveness of legal regulation in sports

Dorskaia

Dorskii

2021

Vestnik SPbSU. Law

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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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The principle of proportionality and strict liability of football clubs for the behavior of spectators at UEFA competitions

Васильев

2021

Law Enforcement Review

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The subject. This article is devoted to the content of the principle of proportionality in disputes about the strict liability of football clubs for the behavior of spectators. The proportionality means that the sanction corresponds to the offense and it has two dimensions. Firstly, the more serious the offense is the higher the sanction should be. Secondly, proportionality protects sport from unreasonably low sanctions while the violation is serious.The purpose of the study is the content of the principle of proportionality: the use of related principles of sports jurisprudence, exceptional circumstances (mitigating and aggravating) in the practice of applying clubs` strict liability for spectators` behavior in UEFA competitions over the period 2007-2021. Liability without fault increases the value of investigating the factual circumstances of a dispute. The broad discretion of the bodies raises the question of the validity of the choice of aggravating circumstances or the refusal of mitigating circumstances. Therefore, the jurisdictional authority in each specific dispute must search for exceptional circumstances thereby fulfilling the principle of proportionality. The second important nuance of strict liability in the UEFA regulations is the difference in the interconnection between violations and sanctions. In some articles, the sanction is predetermined. It is possible to reduce such a sanction only in the presence of an exceptional circumstance and to increase it in the presence of an aggravating circumstance. Separately considered, in conjunction with the principle of proportionality, other principles: principles of predictability of sanctions, equal treatment, the precedent value of decisions on similar disputes (stare decisis).Methodology. The methodological basis of the stated research involves the generalization and analysis of the practice of two institutions of sports jurisprudence. Firstly, the jurisdictional bodies of UEFA are publicly available, as well as available to the author, but currently not available for free download on the UEFA website. Secondly, the relevant decisions of the Court of Arbitration for Sport are in the public domain. Turning to the approaches of law enforcement officers regarding the content of the principle of proportionality meant comparing positions that did not differ in inconsistency. As a result of the analysis of the practice were systematized and identified typical exceptional circumstances, unique exceptional circumstances, and specific enforcement of the principle of proportionality.The main results of research and the field of their application. The article examined the normative limits of sanctions in the UEFA Disciplinary Regulations; exceptional circumstances affecting the choice of sanction; search by the law enforcement officer of the content of exceptional circumstances; principles of predictability of sanctions, equal treatment, the precedent value of decisions on similar disputes (stare decisis) in connection with the verification of sanctions for proportionality. Compliance with the principle of proportionality, in this case, should protect the club from an unreasonably harsh and grossly disproportional sanction. Therefore, it is important to analyze the factual circumstances: which of them are mitigating and which are aggravating. In other categories of offenses, the sanction remains at the discretion of the jurisdictional authority. In such violations, the principle of proportionality takes on a special value. The more flexibility in the choice of sanction is, the higher is the risk of abuse by the jurisdictional bodes. UEFA`s enforcement practice is seeking exceptional circumstances that are not consistent enough to be predictable. Some consistency exists only concerning aggravating circumstances. There is an unreasonably strict approach to mitigating circumstances. The practice of CAS does not differ from the practice of UEFA in terms of strict liability compositions. The principle of proportionality in sports jurisprudence can be interconnected with other legal concepts. Such concepts are equal treatment, predictability, and so-called stare decisis.Conclusions. For the slightly undisputed observance of the principle of proportionality, several requirements must be fulfilled. First, analyze the factual circumstances to find exceptional circumstances among them. Secondly, always choose the minimum sanction in the absence of aggravating circumstances, since strict liability is a forced legal institution. Thirdly, indicate in the decisions what circumstances are mitigating, what aggravating circumstances have been established, and how they both affect the choice of a sanction. Fourth, use the previous decisions of the UEFA`s jurisdictional bodies and CAS of the strict liability offenses when the actual circumstances are close.

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Problems of Proof in Football Clubs` Disciplinary Liability for Match-Fixing: Practice of the Court of Arbitration for Sport (CAS) (2009-2014)

Cited by 3 publications

References 5 publications

Co-regulation as a way to improve the effectiveness of legal regulation in sports

Co-regulation as a way to improve the effectiveness of legal regulation in sports

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

The principle of proportionality and strict liability of football clubs for the behavior of spectators at UEFA competitions

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