«Достаточная убежденность» при разрешении дисциплинарных споров о манипулировании результатами спортивных соревнований

Abstract

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.