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  Subjects -> SPORTS AND GAMES (Total: 199 journals)
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International Sports Law Journal
Journal Prestige (SJR): 0.136
Number of Followers: 3  
 
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 1567-7559 - ISSN (Online) 2213-5154
Published by Springer-Verlag Homepage  [2469 journals]
  • Evolution of CAS human rights jurisprudence: observations from Keramuddin
           Karim v. FIFA

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      Abstract: Abstract This essay seeks to analyze certain elements in the 2020 Court of Arbitration for Sport award in Keramuddin Karim v. Fédération International de Football Associations (CAS 2019/A/6388, award dated July 14, 2020) where the former President of the Afghan Football Federation was sanctioned for offences including sexual abuse of Afghan footballers. Against the backdrop of increasing visibility of and focus on safeguarding of sporting bodies in the recent past, this essay looks at three aspects: (1) the definition and constitution of the offence; (2) select evidentiary matters of standard of proof, anonymous witness statements and due process; and (3) sanctioning—contextualizing them against a non-criminal, arbitration forum’s human rights jurisprudence as it currently stands. Concluding observations made include a dearth of robust provisions in applicable regulations, but the possibility to read rights into them, and the necessity of nuanced, perhaps unconventional, approaches to evidentiary standards and sanctioning.
      PubDate: 2022-06-20
       
  • Examining procedural fairness in anti-doping disputes: a comparative
           empirical analysis

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      Abstract: Abstract While the principles of procedural fairness apply in anti-doping disputes pursuant to Article 8 of the Word Anti-Doping Code, 2021 (the Code), there has been limited research assessing whether due process requirements are applied consistently by national anti-doping tribunals. This paper investigates the extent to which the procedural requirements set out under the Code are followed in practice, with a focus on India, New Zealand and Canada, facilitating comparison between developed and developing jurisdictions. By providing an evidence-based examination of first instance anti-doping procedures, this study confirms existing theories on the overall lack of harmonization in anti-doping procedures. We undertook a frequency analysis on the full-text awards handed down by first instance anti-doping tribunals in the comparative jurisdictions and the findings highlight inconsistent application of timeliness requirements and access to legal representation. Critically, in India, disputes take significantly longer to be resolved than in Canada and New Zealand, while far fewer Indian athletes are represented by legal counsel. In all jurisdictions, athletes who were represented by counsel were more likely to see a reduction in their sanctions. The study provides empirical evidence of systemic issues associated with timeliness and access to justice in anti-doping tribunals across jurisdictions and reinforces the need to focus on capacity building and enforcement of procedural safeguards, especially in developing countries. Practical recommendations include strategies to better achieve compliance and harmonization in protecting the procedural rights of athletes, particularly those athletes affected by the current application of the Code where cultural and socio-economic barriers may exacerbate procedural issues.
      PubDate: 2022-06-10
       
  • VAT chargeability of football intermediaries’ commissions in EU Law, in
           the light of the EU–UK Trade and Cooperation Agreement

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      Abstract: Abstract This article discusses the Value-Added Tax (VAT) discipline relating to the representation services offered by football intermediaries in the contractual negotiation of the employment contract between the player and the club(s). The analysis is carried out taking into consideration the relevant legislative provisions of European Union (EU) law as well as the case law of the European Court of Justice (ECJ) and the findings of the EU VAT Committee. The VAT discipline of representation services provided by football intermediaries is first analyzed in light of the EU legislative acts regulating the different legal figures of intermediation contracts and the effects on the EU internal market. Then, the legal nature of the “intermediation commission”—as the VAT chargeable event—and the “place of supply of the intermediation service”—as the place of taxation—as qualified by EU tax law, are studied. Finally, the EU–UK Trade and Cooperation Agreement (TCA) provisions regarding VAT chargeability of intermediation services are analyzed. The article concludes arguing that, at the moment, it does not seem that the TCA has specifically reformed the regulation of the VAT chargeability of the intermediation commission received by football agents for their representation services in negotiating an employment contract between the player and the club(s).
      PubDate: 2022-06-07
       
  • Children’s right to play sports in a safe and healthy environment

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      Abstract: Abstract According to the United Nations Convention on the Rights of the Child (CRC), every child has a right to practise sports in a healthy, safe environment (art. 19). However, research indicates that child athletes experience various forms of violence in sports. Violence is particularly harmful to children, as the effects may be significant and long lasting. In addition, children often have difficulty identifying and reacting to violence. In this article, we first aim to shed light on the prevalence and implications of violence towards child athletes in sports. By child athletes, we mean athletes under the age of 18 (CRC art. 1). Thereafter, we discuss the following questions: (1) How does the CRC protect children in sports' (2) Can children’s rights be effectively protected through sports self-regulation of sports bodies and legal remedies' (3) Who is responsible for safeguarding children’s rights in sports' To answer these questions, we employ a multidisciplinary perspective that combines jurisprudence and sport psychology. In summary, we conclude that the CRC unequivocally prohibits all violence against children in all sectors of society, including sports. The responsibility for enforcing this prohibition lies with both member states and sports bodies. It is always the responsibility of adults. The full realisation of children’s rights requires action on multiple fronts, including legislation, information, education and resources.
      PubDate: 2022-06-07
       
  • The potential of restorative justice in advancing safe sport

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      Abstract: Abstract This article introduces the potential application of restorative justice in addressing sexual violence and abuse in sport. The suggested framework aims to strengthen existing safeguarding measures in sport organisations. Without proper oversight, abuses within the sport industry are often unidentified, concealed by various stakeholders, resulting in victims suffering much pain. Such suffering, however, contradicts any sporting goals, as abuse tends to result in long-term trauma, permanently scarring the victim, and potentially affecting their performance in sports. Exploring the situation from a victim’s perspective, this article discusses restorative justice, a theory of justice that places the victim at the centre of the resolution model. Restorative justice, which gained its popularity within the criminal justice system, has evolved over time. The principles, values and practices have been applied in various situations, including organisations. Though restorative justice is frequently used to address the aftermath of a conflict or a crime, this article suggests incorporating restorative justice in advancing safe sport.
      PubDate: 2022-06-02
       
  • Lost in translation' The European Convention on Human Rights at the
           Court of Arbitration for Sport

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      Abstract: Abstract The Court of Arbitration for Sport (CAS) is not known as a human rights court. Instead, its primary focus is on applying and interpreting the regulations of international (and sometimes national) sport governing bodies (SGBs). It is only recently that the intersection between the CAS jurisprudence and human rights has become of interest in the academic literature and public debates. In particular, the Mutu and Pechstein decision of the European Court of Human Rights (ECtHR) in October 2018 made clear that the CAS does not escape the indirect scrutiny of the Strasbourg court. Nevertheless, until today, very few publications have been dedicated to the interplay between the European Convention on Human Rights (ECHR) and the CAS. This paper aims to contribute to remedying this want by charting the CAS awards in which a reference to the ECHR or a decision of the ECtHR was made and tracing the impact and function of such references in the CAS jurisprudence. The findings highlight the various functions of the references to the ECHR in CAS awards, the discrepancies between some of the interpretations of the ECHR advanced by the CAS and the ECtHR’s own understanding of the Convention, and the limited success of appellants to challenge SGBs’ decisions on the basis of the ECHR. The paper concludes by arguing that the CAS would need to be institutionally reformed in order for human rights to act as an effective check on the transnational power of SGBs in CAS proceedings.
      PubDate: 2022-06-01
       
  • The quest for harmonisation in anti-doping: an Indian perspective

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      Abstract: Abstract The World Anti-Doping Agency aims to promote clean sport through the introduction and implementation of harmonised rules under the World Anti-Doping Code, 2021 (the Code). Since WADA relies heavily on National Anti-Doping Organisations to implement the Code, the experience of anti-doping differs across countries. Some scholars argue that the current framework disproportionately impacts athletes from developing countries. This paper contributes to this debate by analysing systemic issues in the implementation of the Code in one such country—India. The legitimacy of anti-doping in India has been questioned as a result of the recent suspension of the National Dope-Testing Laboratory, a series of false positive tests, accusations of significant procedural and substantive errors by domestic tribunals, and access to justice challenges. Given the prevalence of doping in India, alongside the accumulation of recent controversies and push for reform, a deeper analysis of anti-doping in the country is warranted. The lack of compliance in India with certain requirements set out in the Code, as well as the failure to meet “best practice” standards set by other jurisdictions, is evidence that there is a lack of harmonisation in implementing anti-doping rules and procedures across countries. This paper contributes to the debate on the impact that a lack of harmonisation in the implementation of the Code can have on the legitimacy of the anti-doping framework. From a policy perspective, the proposed research agenda and recommendations can be applied to promote reform in India and other jurisdictions, especially in developing and emerging countries.
      PubDate: 2022-05-25
       
  • An analytical study of the human rights concerns before the CAS with
           reference to Caster Semenya

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      Abstract: Abstract At a time when the social ideas regarding gender are shifting and the need for protection of human rights in sports has been emphasized, the IAAF Regulations on the participation of non-binary athletes in sporting competitions have been exclusionary and display a disregard for the legal standing of human rights of the athletes. At this juncture, the competency of the Court of Arbitration for Sports (CAS), the premier forum for dispute resolution in international sports, to adjudicate upon cases concerning the human rights of the athletes has been called into question after its failure to uphold the human rights concerns of the South African athlete Caster Semenya who challenged the validity of these IAAF Regulations vis-à-vis the requirement of female athletes to conform to a certain level of testosterone in their systems. This paper analyzes the functions of the CAS and argues why the CAS is uniquely placed to uphold the human rights of the athletes. Additionally, the paper delves into the historical understanding of gender verification in sports and examines the scientific evidence regarding elevated male hormones leading to competitive advantage in female athletes. Finally, the paper suggests reforms for the CAS for it to be better equipped in handling human right concerns before it.
      PubDate: 2022-05-12
       
  • Taming of the megalomaniac institution: perspectives on regulating the
           unbridled powers of the BCCI

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      Abstract: Abstract The boisterous emotion associated with the game of Inches, i.e., Cricket has given this ‘mere’ sport, the dimension of worship, faith, religion and a status of idolism of players. The negatives or the positives of worshipping a sport or escalating it to a status comparable to that of immortal gods, is a continual argument that shall always remain on the brink of the line of abstruseness. Yet, politicising the sport to earn commercial and economic benefits by exploiting the emotions associated with the sport falls on which side of the line remains ambiguous The infamous case of Surinder Singh Barmi, where severe accusations were levelled against BCCI, showed the roller-coaster ride of manipulation of emotions. The author in the paper will focus on the structure of Cricket in India and the uncontested power derived by BCCI. The author will further expound on the revenue generation of BCCI which has made BCCI invincible. The author will also illustrate the power of BCCI by reflecting on the competition law concerns it modelled over the years, making it unassailable. The author contends that, despite the ostensible and anti-competitive nature of its powers, the competition law remedy against the BCCI falls short in checking the varied variety of rights associated with the Game of Cricket in India. BCCI needs to be subjected to a more comprehensive power checking mechanism. The paper shall argue that BCCI should be considered a State under the Indian Constitution and should fall under the domain of Right to information to bring in more transparency in its functioning.
      PubDate: 2022-05-10
       
  • Grievance mechanisms and challenges to ensuring effective remedies for
           athlete abuses in Japan

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      Abstract: Abstract Unfortunately, harassment and abuse in the sporting context have been serious social issues in Japan for a long time. There are three judicial and non-judicial mechanisms that address sports-related abuses: civil procedure, criminal procedure, and disciplinary measures by sporting organizations. Victims can avail of all these mechanisms simultaneously or choose one or two of them. Theoretically, these three mechanisms operate independently, but in practice, each one affects others. Although victims are desperately in need of support, grievance mechanisms sometimes fail to protect victims due to inflexible jurisdiction of the sports-governing bodies. Another challenge is the lack of a system to share information about sport-related human rights abuse cases among sports-governing bodies to prevent further abuse cases. Considering this background, this paper proposes legal measures to effectively prevent harassment and abuse in Japanese sports, taking lessons from to laws, systems, and projects for safe sport in other countries including the U.S., Canada, and Germany. We conclude by proposing the establishment of a centralized entity in Japan, which maintains functions of reporting, investigating, and adjudicating harassment and abuses in Japanese sports, while promoting the concept of safe sport in Japan.
      PubDate: 2022-05-04
       
  • How Russia’s invasion of Ukraine shook sports’ foundation

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      PubDate: 2022-03-29
      DOI: 10.1007/s40318-022-00211-8
       
  • Competition manipulation in international sport federations’
           regulations: a legal synopsis

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      Abstract: Abstract Manipulation of competitions has long plagued the sport industry, affecting almost every sport over time. While sharing certain common features, the regulatory provisions and procedural responses to this phenomenon by international federations (IFs), sports’ governing bodies, vary on many aspects, including the definition of the specific offence of “competition manipulation” itself, scope of application, especially in relationship to betting, categories of participants, mens rea elements such as recklessness and negligent behaviour, reporting obligations, aggravating and mitigating factors, and applicable sanctions across sports and within a sport/discipline. More nuanced items within internal disciplinary procedure also vary across federations, such as standard of proof and evidence. The purpose of this study is to offer a comparative synopsis of the regulations of 43 IFs governing Olympic and certain non-Olympic sports, to provide a critical overview of specific aspects of the above mentioned factors in the regulations and to identify areas of improvement for the future.
      PubDate: 2022-03-07
      DOI: 10.1007/s40318-022-00210-9
       
  • The death of judicial review of sporting bodies in the commonwealth
           Caribbean

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      Abstract: Abstract Judicial review is the procedure by which municipal courts intervene in the affairs of public bodies to review the process by which they have arrived at decisions which adversely affect their constituents. In this connection, the decisions of public bodies may be challenged on the basis that they were arrived at in error of law, tainted by error of fact or bias, irrational, disproportionate or in breach of principles of natural justice. Although in some jurisdictions sporting bodies are amenable to judicial review, courts in England and Wales and, indeed, the Commonwealth Caribbean, have been largely consistent in finding that because of their private and largely contractual nature, their decisions are not susceptible to judicial review. This article argues that in light of the recent Court of Appeal decision of Trinidad and Tobago Football Association v FIFA, the death knell has effectively been sounded for the judicial review of sporting bodies, such that the view of Michael Beloff, Tim Kerr and Marie Demetriou in their 2012 book, Sports Law, that ‘it is not clear that the last word has been said on the subject’, has now been put to rest, at least in the Commonwealth Caribbean. Notwithstanding its recognition of the importance of the Court of Appeal’s decision in clarifying the scope of judicial review in sporting cases, this article nonetheless contends that FIFA’s sweeping Statutes, its increasingly frequent installation of Normalization Committees and its imposition of heavily punitive sanctions against allegedly recalcitrant constituent sporting federations represent legal imperialism and supranational exceptionalism.
      PubDate: 2022-03-01
       
  • The exchange of self-incriminating information of athletes between sports
           organisations and law enforcement

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      Abstract: Abstract Sports organisations generally have the burden of proving sports rule violations of sportspersons subject to their rules and regulations. Sports rule violations can generally be proven by any reliable means. A common approach taken by sports organisations in this respect is the implementation of so-called cooperation and reporting obligations embedded in their regulations. On this basis, athletes can be obliged to provide all kind of documentary evidence related or unrelated to the matter under investigation. This may cause problems to the privilege against self-incrimination of athletes. In addition, obtaining self-incriminating information in internal sports investigations carried out by private sports organisations can have legal and personal consequences that go well beyond the professional life of athletes. The integrity of sport has been characterised as a public interest due to the social impact of amateur and professional sports in most societies. As a consequence, negative sports-related conduct, such as doping or the manipulation of sports competitions, has been criminalised in various national laws to protect sporting values and preserve the role model function of athletes for young members of our society. This development has led to cooperation between sports organisations and law enforcement agencies, such as prosecutors and the police. Specifically, both collaborate in order to assist the other party’s investigations of sports rule violations and criminal offences, respectively. However, the exchange of intelligence between sports organisations and law enforcement may cause some legal tension. If the same misconduct of athletes leads to both internal sports investigations and criminal proceedings, athletes could be forced to provide self-incriminating information in internal sports organisations, which could then be subsequently transmitted to law enforcement. This system of intelligence gathering raises serious concerns regarding the procedural fairness thereof, keeping in mind the detrimental effects for sportspersons under investigations. A closer look is thus necessary to the legitimacy of the exchange of intelligence. Therefore, the aim of this article is to shed some light on this issue and clarify if and under what conditions internally obtained evidence can be passed on to law enforcement agencies.
      PubDate: 2022-03-01
       
  • Physical and sexual abuse against young athletes in sport in light of
           article 8 of the European Convention on Human Rights (ECHR)

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      Abstract: Abstract Numerous young athletes have suffered from physical and sexual abuse at the hands of their coaches. Despite this, the European Court of Human Rights (ECtHR) has never dealt with a violation of child rights under the European Convention on Human Rights (ECHR) in the case of physical and sexual abuse in sport. In this situation, a question that may arise is how young athletes can argue a violation of their substantive rights under the Convention before the ECtHR in the case of such abuses' In this regard, the right to physical and mental integrity under Articles 10 (2) and 27 (2) of the Swiss Federal Constitution (SFC) as well as the prohibition of an excessive limitation of personal freedom under Article 27 (2) of the Swiss Civil Code (SCC) may play an essential role to build a bridge between the Convention rights and the fundamental human rights under national law in light of the SFT’s precedents within the meaning of substantive public policy under Article 190 (2) (e) of the Swiss Private International Law Act (PILA). Although the International Federations (IFs) have not recognised a legal standing of young athletes suffering from physical and sexual abuse, state parties to the ECHR must implement positive obligations under Article 8 (1) of the ECHR to take necessary measures to protect young athletes against such abuses by non-state actors and may require sports governing bodies within the jurisdiction to comply with Article 8 (1)’s obligations. Accordingly, this article might serve to clarify a duty of sports governing bodies to protect young athletes against such abuses through a lens of the ECHR.
      PubDate: 2022-03-01
       
  • Agents in the sporting field: a law and economics perspective

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      Abstract: Abstract While agents have been active in the sporting field since the late 1800s, sports agents and their activities have grown in prominence only in more recent times, particularly as a result of typically adverse headlines. Agents are generally considered to be necessary (or some might say a necessary evil) for the sporting industry, in the representation of sportsmen and women, the consultation of sports clubs and franchises, or the facilitation of employment contracts and transfer deals. In contrast to players and clubs (not to mention sports federations and governing bodies), however, sports agents are not engaged in sporting endeavour. Rather, the essence of their role is an economic one for the provision of services. This peripheral position of sports agents implies that their interests are likely to be quite different from those of other stakeholders in the sports industry – but it also gives rise to a significant regulatory conundrum. This conundrum has become especially apparent in the sport of football in recent years, where various attempts at regulation of access to and the performance of the profession of football agent have been made at national and international level. The field of sports and football in particular clearly has a great societal impact and a large economic value. Yet, sports law is remarkably absent so far from the economic approach to law. From a law and economics perspective and in the light of regulation theory, therefore, our main research questions are whether there is a need to regulate the profession of sports agent and, if so, what type of regulation is needed.
      PubDate: 2022-03-01
       
  • By what standard' Speech-related conduct issues in globalised sports

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      Abstract: Abstract The ban of Uruguayan footballer Edinson Cavani for a post on his Instagram account has been highly controversial. Opinions as to the appropriateness of the ban and associated stance taken by the Football Association have been divided. On one side, groups such as anti-racism campaigners have argued that the ban is justified citing a need to promote a greater understanding of acceptable language and behaviour among international athletes. On the other hand, many Spanish speakers have argued that the Associations’ actions are inconsistent with their stance on inclusivity and understanding, arguing that they failed to consider the cultural and linguistic characteristics unique to South America. This raises an important question for globalised sports: how should words and speech be judged in an international context'
      PubDate: 2022-02-28
      DOI: 10.1007/s40318-021-00204-z
       
  • UEFA and the Super League: who is calling who a cartel'

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      Abstract: Abstract The football industry finds itself at a turning point. Through the recent rise and steep fall of the Super League, the concept of a super breakaway league in football is once again at the center of the discussions among football stakeholders. Whilst the key discussion points of such breakaway projects seem to be primarily of a commercial and political nature, EU competition law could also have a crucial impact on the success rate of these initiatives. Sports governing bodies often build in control mechanisms which require their consent prior to the establishment of new third-party competition, often complemented with a severe sanctioning mechanism for athletes participating in non-authorized events. In the ISU case, the European Commission and the General Court found such an ex-ante control mechanism to be contrary to EU competition law in certain circumstances. This Article will analyze UEFA’s ex-ante control system in light of the decision in the ISU case. If the football pyramid desires to uphold its control mechanism it should introduce objective, non-discriminatory, transparent, and proportionate criteria, as well as proportionate sanctions. This article will also analyze whether the Super League's own set-up is compliant with EU competition law.
      PubDate: 2022-02-21
      DOI: 10.1007/s40318-021-00201-2
       
  • The effective application of international human rights law standards to
           the sporting domain: Should UN monitoring bodies take central stage'

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      Abstract: Abstract This work aims to reflect on the role that UN human rights monitoring bodies—both charter and treaty based—could play in tackling human rights violations of athletes rights occurred in the sporting domain. While recognizing the autonomy of sports associations in the application of their own lex sportiva, the author maintains that the perspective and concrete recommendations provided by UN human rights mechanisms could help (i) raise human rights standards applied by sporting associations and (ii) more effectively combat discriminatory and other harmful or unfair practices in sport. Thus, the purpose of the analysis is twofold. First, the work will examine the reasons behind the absence of a significant UN human rights mechanisms/bodies practice so far. Secondly, it will support that autonomy of sport should not imply that athletes could be prevented from having access to these mechanisms seeking concrete recommendations regarding changes in situations of discrimination or application of such harmful or unfair practices. While identifying certain obstacles to individual access, the work advocates for a more decisive action of these mechanisms in this regard. In particular, through Committees’ General Recommendations and Concluding Observations, on the one hand, and special procedures of the Human Rights Council’s pronouncements, on the other.
      PubDate: 2022-02-10
      DOI: 10.1007/s40318-021-00209-8
       
  • Intent, substances of abuse, aggravating circumstances, protected persons
           and recreational athletes: does the World Anti-Doping Code 2021 provide
           proportionate sanctions'

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      Abstract: Abstract This paper examines the proportionality of sanctions in the World Anti-Doping Code 2021 (“Code 2021”). The author argues that Code 2021 improved the proportionality of sanctions compared to the World Anti-Doping Code 2015 (“Code 2015”), but problems persist. Sanctioning framework of Code 2021 introduces several provisions that modify the basic period of ineligibility and the margin of appreciation of hearing panels to reduce, but also aggravate the basic sanction. Since it would be practically impossible to cover all the modifications in one paper, the author analyses four groups of provisions converging in the criterion of fault that he considers the most fundamental novelties in terms of proportionality. The author argues that the new approach towards sanctioning of the ingestion, use or possession of substances of abuse is more suitable and proportionate compared to the one in Code 2015. Moreover, he considers the creation of two new categories of protected persons and recreational athletes and adjustment of their sanctioning a step forward compared to Code 2015 in terms of both suitability and proportionality. On the other hand, the author argues that hearing panels need to consider the difference between cheating and mere knowing to impose a proportionate sanction based on the revised definition of intentional presence, use or attempted use or possession of prohibited substances or methods that abolished the reference to “athletes who cheat”. Moreover, he claims that hearing panels should prefer shorter ineligibility to disqualification of only some competitive results to impose a proportionate punishment in cases involving aggravating circumstances and their combination with the disqualification of results. Overall, the text of Code 2021 is a good start to the race for the proportionality of sanctions. Nevertheless, hearing panels must keep the pace and ensure proportionate punishments in particular cases.
      PubDate: 2021-10-25
      DOI: 10.1007/s40318-021-00200-3
       
 
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