Применение фундаментальных и уголовно-правовых принципов при привлечении к спортивной ответственности: краткий очерк

Abstract

Sports disputes resolution has a private legal nature and therefore per se should not be based on the principles of a branch of public law such as criminal law. At the same time sport sanctions sometimes have a negative effect comparable with administrative law and even criminal law. However, does this lead to the conclusion that it is necessary to extend to sports liability the guarantees provided by criminal law principles? The use of general principles of law in sports jurisprudence, at first view, should not cause the slightest doubt. At the same time, doubts in the said conclusion may suddenly appear by the reflection of certain principles of criminal law of fundamental values. Is this indeed the case, or does the practice of sports dispute resolution (un)intentionally maintain ambiguity and selective recognition of general principles? One can give the example of the principle nulla poena sine culpa, the desire to extend it to any sporting legal order is quite obvious. The heterogeneity of the institute of sports liability demonstrates several variants of such without taking into account the fault of the subject of sport, and raises reasonable questions about the inconsistency of this example with the piety of the general principles of law. Let us turn to the practice of the Court of Arbitration for Sport (CAS), which in this brief review will allow to reveal features of the current sports jurisprudence on a global level and offer some answers to the questions we have mentioned.