TRIBUTE TO LUCIO COLANTOUNI – LEX SPORTIVA AND THE JURISDICTION OF CAS
Klaus Vieweg
Prof. Dr., Erlangen University, Germany
Abstract: The term lex sportiva consists not only of the rules and regulations of national and international sports federations, but also of the general and sport-specific legal principles developed and accepted by the CAS. The lex sportiva is influenced considerably by national and European law and is particularly dependent upon receiving acceptance from state legal orders. The CAS can reach decisions on the basis of the lex sportiva that are, in general, recognised by state courts, in particular by the Swiss courts, and that can, for the most part, be enforced by the sports federations themselves. Thus, while the lex sportiva can in no way be regarded as a cure-all, it does offer the world of sports the “possibility to self-regulate”. In this way, it can contribute to the harmonization of international sports law with the exception of the area of interim relief.
Keywords: lex sportiva , CAS, European law, recognition, harmonization
ARBITRAL JURISDICTION IN SPORTS ACTIVITIES
Dimitrios P. Panagiotopoulos
Professor of Sports Law, National and Kapodistrian University of Athens, Attorney-at-Law, Greece
Abstract: Sport today at international level just like the Olympic Games operates under its own rules. These rules is the context of the sporting legal order internationally, the Lex Sportiva as a law parallel to international law which incorporates elements of supra-national legal orders such as the European Community and elements of domestic law. In this context the Court of Arbitration for Sport (CAS) has acquired considerable power within the sporting legal order. It operates independently as the most valid jurisdictional organ for resolving sporting disputes for the international sporting community. The clause prohibiting recourse to the civil courts leads to the view that in disciplinary disputes in particular relating to issues within sporting associations, natural and legal persons are deprived of all opportunities for judicial protection. Arbitration applies in financial disputes but it cannot be used mandatorily in disciplinary disputes within sport which relate to personal freedoms and promoting the public good of sport via the participation of athletes in games by providing sporting services.
Keywords: Lex Sportiva, Arbitration, Olympic Games, athletes, disputes, CAS, civil court, judicial protection, sporting services
THE DEVELOPMENT OF INTERNATIONAL SPORTS ARBITRATION BODIES AND CHALLENGES OF LEGISLATIVE POLICY
FOR REESTABLISHMENT OF SPORTS ARBITRATION AGENCY IN KOREA
Kee-Young YEUN
Professor of Law, College of Law Dongguk University in Seoul, Korea
Abstract: Experiencing several disadvantages in international sports disputes for the last 10 years; Korean sport has come to the realization of the necessity of a dispute settlement body. Sports disputes occur in a variety of circumstances. While disputes related to the qualification of athletes, judgments of judges and doping can be settled by legal disputes following legislation, the economic burden and loss of time cannot be overlooked when the resolution of sports disputes, among many other factors, specially requires immediacy and professionalism.
In March 2006, the Korea Sports Arbitration Committee (KSAC) was established in accordance to Article 54 of the Korea Sports Council and has been operated since then. In June 2009, the Korea Sports Council and The Korean Olympic Committee (KOC) were integrated; the Amended Articles expunged the applicable provisions of the KSAC. The consolidated committee determined to discontinue budget support, starting 2010. Such determinations ignore the intent of the establishment. The KSAC must be restored immediately in order for a successful hosting of international sports events, such as PyeongChang 2018 Winter Olympics. Regarding international tendencies and the sports advancement of Korea, the KSAC ought to be restored. Many nations, including Japan, United Kingdom, United States, Canada, New Zealand, Hungary, Netherlands, Germany, Poland, and South Africa, demonstrate strong examples of dispute settlement organizations’ remarkable activities supported by applicable acts enacted and amended by legislative branches.
This thesis places emphasis on the necessity of precise legal basis with the purpose of the revitalization of sports dispute settlement as well as the enhancement of the Korea Sports Arbitration Committee. A National Sports Basic Act or a Sports Basic Act ought to be legislated as soon as possible with the purpose of regulating the basic right to sports, the responsibility of the government, basic guidance to promotion of the sports industry, and international cooperation and the stipulation of the basis for establishing a sports dispute settlement organization.
Keywords: Court of Arbitration for Sport (CAS), Korea Sports Arbitration Committee (KSAC), Sports Arbitration, Sports Mediation, Med-Arbitration, Autonomy of Sports, International Olympic Committee (IOC), International Council of Arbitration for Sport (ICAS), sports dispute resolution, sports arbitration rules, arbitrator, mediator, arbitration agreement, monopoly jurisdiction.
SEXISM AND LEGAL PROBLEMS OF GENDER IDENTITY IN PROFESSIONAL SPORTS
Peskov Anatoly
Head of Security Department, Russian International Olympic University, Russia
Abstract: The article investigates the legal and social problems of gender identity of men and women and persons with different sexual orientation in professional sports. The article analyzes the problem of equality between men and women in professional sports, the reasons for spreading of sexual deviations among athletes and procedures relating to the definition and changing their sex. Author, based on analysis of legal regulations of FIFA, UEFA and the national legislation, gives explanations about the criminal and administrative liability of persons engaged discriminatory acts against persons with different sexual orientation in sports facilities. Understanding of this problem is important in the context of the functioning of the Anti-Discrimination monitoring system FIFA, launched on the eve of the Confederations Cup 2017 and the FIFA World Cup 2018 in Russia.
Key words: gender identity, gender discrimination, sexism, sexuality, feminism.
SPORTS LABOR DISPUTES: JURISDICTION AND ARBITRATION
Olga A. Shevchenko
Doctor of science (Law), Professor of the chair of labor law and social security law of the Kutafin Moscow State Law University, General Secretary of the International Association of Sports Law, Russia
Abstract: The bodies of international and all-Russian sports federations considering individual labor disputes involving athletes are also called "quasi-judicial" bodies, as they actually carry out resolution of disputes relating to the competence of courts. Such authorities, for example, include the Dispute Resolution Chamber and Players' Status Committee affiliated with the Russian Football Union, Disciplinary Committee and Contract Disputes Commission affiliated with the Kontinental Hockey League (KHL), the Dispute Resolution Chamber and the Players' Status Committee of the International Football Federation (FIFA).
However, it is worth mentioning that not all sports federations have special bodies authorized to resolve individual labor disputes involving athletes. In this case, individual labor disputes involving athletes are considered and resolved by commissions for labor disputes and by courts.
Key-Words: Russian sports, International Football Federation, World Anti-Doping Agency
SOME ARGUMENTS REGARDING THE NECESSITY OF CHANGING THE PARADIGM OF OLYMPIC EDUCATION IN AGREEMENT
WITH AN ADEQUATE LEGAL PEDAGOGY
Alexandru-Virgil Voicu
Professor, Faculty Member of Babeș-Bolyai University, and Sapientia University, Cluj-Napoca, Romania
Abstract: The knowledge regarding the sports phenomenon – already considered a notable social phenomenon – could be coagulated in a sports science and a sub-branch of the science of law provided they are previously reunited in a coherent theory. The aim of this paper is to provide those interested in the development of competences of future experts/professionals (as seen by the European Civil Codes) with the dynamic of normative order. Such information can contribute to the formation of an expert opinion on the role and functions of sport in contemporary society. It is increasingly apparent that familiarity with a set of rights and freedoms, obligations provided/required from participants in sport and related activities is a first step towards the normality of social life. In this context, normality can be built mainly by initiating the legalization of the field. Because we can agree that "no one is above the law" [text inserted in the Constitution, Article 2, Paragraph (2) by the Constituent Assembly, with the purpose of strengthening the principle of equal rights, in accordance with the Charter of Paris (1990) regarding the rule of law] - no natural person or legal entity, no field of activity ... including the field of sport. Thus, we may formulate arguments in favor of including in the curriculum of the institutions meant to provide competence to specialists in physical education and sports a didactic discipline entitled „Legal Pedagogy of Olympism”.
Key-Words: physical education and sports, Olympism, ethics, law, sports law, legal liability, social liability, legal pedagogy of sports
TRANSATLANTIC PERSPECTIVES
ON SPORTS ORGANIZATION
James A.R. Nafziger
Honorary President, International Association of Sports Law, USA
IN MEMORY OF LUCIO COLANTUONI
Anna Di Giandomenico
Assistant Professor, University of Teramo, Italy
DOES A SEPARATE HUNGARIAN SPORTS LAW EXIST?
(Retrospection to the Hungarian fi ghts)
András Nemes
Prof.Jur. habil., Hungaria
SPORT AND COMPETITION LAW (FROM THE EXPERIENCE OF THE EUROPEAN UNION, CANADA AND THE USA)
Ponkin Igor V.,
Professor of the Department of Sports Law, Kutafin Moscow State Law University, Russia
Shevchenko Olga A.,
Professor of the Department of labor law and social security law of the Kutafin Moscow State Law University, Russia
Redkina Alena I.,
Lecturer of the Department of sports law of the Kutafin Moscow State Law University, Russia
Abstract: This chapter explores the relationship between sports and different types of competition, legal and actual possibility to apply competition, particularly antitrust, laws to sports, primarily to the sphere of professional sports and sports industry. The commercial and non-commercial components, yet linked to the interests of profit, in modern professional sports, entails certain applicability of competition law to the field of sports. However, excessively strict application of antitrust laws can lead to devastating consequences for all types of sports or sports in general. Therefore, it is important to take into account specific characteristics of the sport sphere (more than any other sphere of activity). This is important when deciding on the application of competition law to this sphere or withdrawal of this sector from the application of competition law. Nature and inherent specific features of professional sports activities and sports in general have a significant impact on the application of competition law. Economic competition in the field of sport is atypical. The authors give their definitions of “sport,” “competitiveness in the sport,” “commercial competition in the field of professional sports,” “autonomy of sports,” “sports monopsony,” “sports monopoly,” and “sports oligopoly.”
Keywords: Sport, Competitiveness in the sport, Commercial Competition in the Field of Professional Sports , Autonomy of Sports, Sport Monopsony, Sport Monopoly, Sport Oligopoly
ON SOME ISSUES IN CONSIDERING AND RESOLVING LEGAL DISPUTES IN SPORT
Valeriya Andreeva
Candidate Doctor, Department of Civil Procedural Law and Business Law
Korolev Samara National Research University, Russia
LEGAL REGULATION OF ADAPTIVE AND PARALYMPIC SPORT
Svetlana Alexandrovna Zakharova
Assistant Professor of the Ural State University of Physical Culture (UralSUPC), Chelyabinsk, Russia
Abstract:. The article touches upon some problems, connected with Russian sportsmen ban of participating Paralympics. Set of norms, regulating legal relations in the sphere of adaptive and parqalympic sport in Russia is analysed here. Tasks, necessary for solving such problems in the sphere of physical culture and sport are also reflected in the article. Shortcomings of legislation are mentioned here and necessary conclusions are also drawn.
Key words: Paralympic movement, Paralympic sport, adaptive sport, legislation, legal regulation, legal norms
WADA REFORM: POSSIBLE WAYS OF MAKING THE GLOBAL FIGHT AGAINST DOPING MORE EFFECTIVE
Larissa I. Zakharova
PhD, Associate Professor of the
Kutafin Moscow State Law University, Russia
Abstract: WADA was set up as a hybrid organization funded by the Olympic movement and governments. Regrettably, states have little power in controlling WADA. The notion of clear segregation of duties put forward on October 8, 2016 by the 5th Olympic Summit could be implemented as follows. WADA remains a norms-setting body while the functions of a testing authority independent from sports organizations can be given to the UNESCO Conference of Parties and the Voluntary Fund accountable to it. The CAS remains an arbitral body who determines sanctions against cheaters.
Keywords: WADA, UNESCO, doping, testing, World Anti-Doping Code.
LEGAL ASPECTS OF REGULATION OF SPORTS POLICY IN LATVIA
Marina Kamenecka-Usova
Lawyer, Mag.iur. University of Latvia.
Abstract: Paragraph 11 of the Recommendation No. R (92) 13 of the Committee of Ministers to Member States of the European Sports Charter adopted by the Committee of Ministers on 24 September 1992 states as follows:
“11. Acknowledging that public authorities should develop reciprocal cooperation with the sports movement as the essential basis of sport, in order to promote the values and benefits of sport, and that in many European States, governmental action in sport is taken in order to be complementary to and support the work of this movement (subsidiarity).”
According to the study of the Committee for the Development of Sport (CDDS) made based on the reports of nineteen member countries of the Council of Europe, the general principles of co-operation and complementarity have been implemented in different ways in the member countries of the Council of Europe.
Latvia was not a participant of the study, therefore author provides a concise research of Latvian sports legislation and policy.
Keywords: Sports Law, Latvia, physical culture, Olympic Games, sport contracts
THE FEATURES OF LEGAL REGULATION AND PUBLIC ADMINISTRATION IN THE SPORTS SPHERE IN INDIA
Olga Alexandrovna Kashuro
Lawyer4, Russia
Abstract: The article is devoted to the research of features of Legal Regulation and Public administration in the sports sphere in India. A system of regulatory support of sports at the regional and federal levels is discussed. The author has shown the system of normative-legal regulation on sport at the regional and federal levels. The article describes the federal and regional authorities of public administration in the sports sphere in India.
Keywords: sports law, legislation on sports, sports, public administration in the sports sphere, India.
IMPLEMENTATION OF WADA CODE IN THE GREEK SPORTS LEGAL ORDER
Dimitrios P. Panagiotopoulos
Professor of Law,, National and Kapodistrian University of Athens, Greece
Zografenia Kallimani
Law Degree, European University of Cyprus, Greece
Abstract: The aim of this study is to determine the crucial and timeless issue of doping and the implementation of the World Anti-Doping Code in Greek National Law by virtue of the provisions of the applicable Greek Law 4373/2016.Use of doping substances by an athlete reveals not only a tendency to prominence at any cost, but especially anti-athletic behavior undermining any concept of sporting values. Doping is prohibited as contrary to the fundamental principles of the Olympic Spirit, fair play and medical ethics. Domestic sport federations are obliged to comply with the WADA Anti-Doping Code, as Lex Sportiva. The World Anti-Doping Code was first adopted in 2003, came into eff ect in 2004, is binding on the international sports movement, but it is not binding on states. Thus, the UNESCO Convention was necessary in order to provide state government with a mechanism for supporting and enforcing the WADA Code. In Greece, anti-doping rules came into force through the adoption by Parliament of the UNESCO Anti-Doping Convention under Law 3516/2006.
Sufficiently earlier, the Greek legislator had established specific c anti-doping regulations
as incorporated in Law 1646/1986. At later dates, the Greek legislator established anti-doping regulations which were incorporated in Greek Law under Laws 2725/1999 and 3057/2002. With the revised World Anti-Doping effective as of 1/1/2015, a series of steps is to be taken by all signatories in order to implement the Code. In order to implement the revised Anti-Doping Code, Greece established the Law 4373/2016.
Pursuant to Law 4373/2016, provisions have been implemented, the content of which, based on the jurisprudence and the bibliography, will be presented in this study.
Keywords: doping, WADA, World Anti-Doping code, Greek law 4373/2016