Olympic gold medal cancelled after taking "cold medicine"?
Demystifying Athlete Punishment and Dispute Resolution
□ Our reporter Zhang Wei
How should a gymnast who won an Olympic gold medal be tested for a banned substance - from the cold medicine he was taking?
So how should disputes be resolved?
A tennis player was found to contain cocaine in a drug test sample, which he ingested while kissing with a drink girl in a hotel. After being punished, the player raised an objection for unintentional ingestion. What should be done?
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In recent years, as people pay more and more attention to sports events, the punishment of athletes and the settlement of disputes arising therefrom have also become the focus of social attention.
At the Beijing Winter Olympics, the 15-year-old Russian figure skater Kamila Valieva was suspended due to a positive drug test. Later, the temporary arbitration tribunal of the International Court of Arbitration for Sport in the Beijing Winter Olympics announced that, Valieva is allowed to continue participating in the Beijing Winter Olympics.
This incident is a typical Olympic ad hoc arbitration case arising from punishment of athletes.
"When we pay attention to athletes, we inevitably pay attention to the disciplinary punishment or punishment imposed on athletes. It is of great significance because it is related to the professional life of athletes. This is also a special link in sports dispute resolution that needs special attention." China University of Political Science and Law Sports Law Research Yuan Gang, director of the institute, said this in a related theme event held by the China International Economic and Trade Arbitration Commission recently.
The sports industry is like a small society
Autonomous management has become a system
Sports dispute resolution has its particularities, and respect for sports autonomy is the primary issue that must be faced in the resolution of related disputes including punishment.
According to Chen Feng, a lawyer from Beijing Cai'an Law Firm, there are two types of autonomous management systems in the sports industry: the pyramid management system of the International Sports Federation and the flat management system represented by the four major professional leagues in the United States.
Taking the Olympics as an example, the International Olympic Committee of each event only recognizes one International Sports Federation; a national or regional Olympic Committee also only recognizes the domestic sports management organization of the International Sports Federation, and the organization selects athletes to form a delegation to participate in the Olympic Games. .
For example, in the Beijing Winter Olympics, the athletes of the Chinese delegation were selected by the Winter Sports Management Center of the General Administration of Sport of China.
The four major professional leagues in the United States are self-contained, and the statutes, rules and norms of the International Sports Federation are not binding on the four major leagues, and even the competition rules are different.
Chen Feng compared the sports industry to a "small society" that also includes legislation, management and judicial systems.
For example, in terms of legislation, sports organizations formulate their own charters, norms and rules, manage member units and participating athletes, deal with corrupt behaviors such as doping and competition manipulation, ensure the safety of participating athletes, and also involve the protection of minor athletes, and own financial management, etc.
The three main bodies (i.e. the International Olympic Committee, the World Anti-Doping Agency, and the International Court of Arbitration for Sport) play an important role in the autonomous management system of the sports industry.
Chen Feng said that the International Olympic Committee promotes the Olympic Movement around the world and provides the Olympic Games as a platform for athletes from all over the world to show their sports skills; the World Anti-Doping Agency prohibits athletes from using doping, maintains the fairness and justice of sports events, and promotes the healthy development of sports. ; The International Court of Arbitration for Sport, as an independent arbitration institution, provides a professional, legal and fair dispute resolution platform for the autonomous management of sports.
Gong Xiaoyan, a judge of the Trial Chamber of the International Volleyball Federation and a member of the Legal Committee of the Asian Athletics Federation, said that sports dispute resolution is different from dispute resolution in other industries. Dispute resolution in other industries often applies the substantive law agreed upon by both parties or the law of the most closely related place. , and the particularity of sports is that in addition to the applicable substantive law, the rules of each individual federation or association need to be considered.
In this regard, Gong Xiaoyan further explained that it is impossible for countries to formulate a law specifically for a specific sport, and there are great differences between sports.
A case in point is that New Zealand weightlifter Hubbard became the first transgender athlete in Olympic history at the Tokyo Olympics.
Whether Hubbard's participation in the competition is fair to female players has caused a lot of controversy.
Many female players said it was unfair to play against a man.
At that time, the International Olympic Committee had strict requirements for transgender athletes to participate in the Olympic Games. For example, male-to-female athletes needed to prove that their blood testosterone levels were lower than 10 nanomoles per liter and maintained for at least one year.
Following the Tokyo Olympics, the International Olympic Committee released a new "Framework for Equity, Inclusion and Non-Discrimination Based on Gender Identity and Gender Differences" and recommended to IFs that they should accept transgender and DSD (i.e. gender developmental differences) Players) take more flexibility on the part of the athletes.
"In table tennis competitions, men must be more dominant? In diving competitions, do men jump better than women?" Gong Xiaoyan said that it is indeed more reasonable for each international sports association to formulate its own rules according to the characteristics of the project. This also explains why individual association rules can be applied in the resolution of relevant disputes.
Penalties within the industry
If you are not satisfied, you can apply for arbitration
What actions might athletes be punished for, and what are the punishments?
Gong Xiaoyan, who has represented many international sports arbitration cases, can be summarized as follows: behaviors that are punished are usually violating the competition rules; those involving morality, such as abuse and fighting, are the most common of which are racial discrimination; those involving corruption , such as bribery, gambling, breach of loyalty obligations, etc.
Dong Shuangquan, secretary general of the Beijing Law Society Sports Law and Olympic Legal Affairs Research Association and member of the hearing committee of the China Anti-Doping Center, believes that the main punishments received by athletes include three aspects: monetary penalties, such as fines; admonishment penalties, such as warnings ; Eligibility penalties, such as ban on transfer eligibility, cancellation of registration eligibility.
Chen Feng said that in general, violations of competition rules and anti-doping regulations are subject to disciplinary punishment within the industry, and those who are dissatisfied with the punishment will be arbitrated by the industry's internal arbitration body.
Domestic sports disputes are handled by the arbitration institutions of domestic sports organizations, and international sports disputes are handled by the dispute resolution institutions of international sports organizations.
If you are punished in international sports events, the Olympic Charter and the Arbitration Rules of the Olympic Games clearly stipulate that you can apply for arbitration to the International Court of Arbitration for Sport. Exhausted internal remedies.
Gong Xiaoyan reminded that different international individual federations have different regulations on relief measures. For example, in the general rules of international skating, it is stipulated that athletes can protest on the spot when they are dissatisfied with the punishment. Due to the time pressure of the group stage, protests are not allowed during the quarter-finals and semi-finals, only after the finals.
It is worth noting that athletes are not familiar with legal knowledge and sports rules when dealing with such cases.
Gong Xiaoyan said, taking the anti-doping case as an example, this is not a purely legal issue, but a combination of law and science.
In some cases, it can be difficult to judge legally without cooperating with technical experts.
Doping issues are often an important cause of penalties, how can this be remedied?
Chen Feng said that according to the World Anti-Doping Regulations, violations of the Anti-Doping Regulations should be dealt with by the anti-doping penalty committees at all levels. CAS appeal.
Chen Feng pointed out that the International Court of Arbitration for Sport has established the following principles in doping penalty cases:
First, whether there is intention or negligence does not affect the characterization, but should be considered when punishing.
For example, a tennis player was found to contain cocaine in a drug test sample, which he had ingested while kissing with a lady at a hotel the night before.
The anti-doping agency of the International Tennis Federation considered the negligence to be minor, so it imposed a two-and-a-half-month suspension.
However, the International Tennis Federation and the World Anti-Doping Agency believed that this was negligence and the punishment was too light, and they appealed to the International Court of Arbitration for Sport. However, the Court of Arbitration believed that the athletes did not have intention or negligence, and dismissed it on the grounds that kissing was normal according to Western customs. appeal request.
The second is that although there is no fault, it has an impact on the game, so the qualification is disqualified.
If a female gymnast was found to have a prohibited substance in her body after taking cold medicine due to a cold, although she was not at fault, her Olympic gold medal was later cancelled. The International Court of Arbitration for Sport upheld the IOC's punishment in its ruling. .
Third, the punishment should not be repeated or aggravated.
If the International Court of Arbitration for Sport abolished the anti-doping penalty for more than 6 months, athletes are not allowed to participate in the next Olympics rules.
Dong Shuangquan said that my country's sports punishment procedures are relatively complete in the field of anti-doping.
The my country Anti-Doping Center issued the "Implementation Rules for Doping Violation Hearing" last year, which supplemented and refined the relevant provisions of the Anti-Doping Rules on hearings, and further optimized and improved the doping violation hearing system, including the selection and appointment of the hearing panel. There are relatively detailed regulations on the time limit of , withdrawal and proof, as well as the temporary hearing of the event.
He believes that in the hearing process of doping cases, the professionalism is very strong, and the relevant knowledge reserves of the parties, stakeholders and agents need to be strengthened.
Sports Arbitration can appeal
Judiciary should not be shunned
Unlike ordinary commercial arbitration, sports arbitration does not necessarily have to be a final decision.
Chen Feng said that as far as commercial arbitration is concerned, the laws of various countries allow objections to arbitral awards, especially procedural issues, to apply for rescission or non-enforcement, which are all means of judicial supervision.
However, countries are still more cautious in appealing the arbitral award.
For example, my country's Arbitration Law stipulates that appeals are not allowed in the final judgment of an arbitration, and the British Arbitration Law allows appeals in principle, but if the arbitration agreement has clearly stipulated that an arbitration is final, it means giving up the right to appeal.
But sports arbitration is precisely what can be appealed.
Chen Feng pointed out that, especially after the International Sports Federation has made an arbitration ruling, if one party is not satisfied, it can appeal to the International Court of Arbitration for Sport.
If one of the parties is not satisfied with the arbitral award, if one of the parties has a domicile or business establishment in Switzerland, the party may also apply to the Swiss Federal Supreme Court to withdraw the award.
However, it is worth noting that there is still a lack of sports arbitration in my country.
The Sports Law passed on August 29, 1995 stipulates: "Disputes arising in competitive sports activities shall be mediated and arbitrated by a sports arbitration institution." However, this legal provision has not yet been implemented.
The once sensational former Dalian Beyond Football Club player Dong Zhiyuan's failure to ask for a salary exposed the relevant problems.
In early January 2019, Dong Zhiyuan complained to the Chinese Football Association that Dalian Chaoyue Football Club owed wages and requested arbitration.
The Chinese Football Association replied: "In view of the club's failure to submit the 2018 salary and bonus confirmation form, it may not pass the 2019 access trial. Therefore, it is recommended that you file an arbitration with the labor arbitration committee where the club is located and file a lawsuit with the court."
Dong Zhiyuan then applied for arbitration to the local labor and personnel arbitration institution in Dalian, but the latter refused to handle it on the grounds that "the claimant's arbitration request does not fall within the scope of labor and personnel disputes".
Dong Zhiyuan had no choice but to file a lawsuit with the Dalian Basic Court, which was dismissed again.
The court cited the provisions of the Sports Law: "Disputes arising in competitive sports activities shall be mediated and arbitrated by a sports arbitration institution", and held that the disputes in this case should be decided by the Chinese Football Association Arbitration Committee.
Subsequently, Dong Zhiyuan filed an appeal, which was also rejected.
The failure to seek remedies within the industry and the inability of the court to accept them, leaving athletes with nowhere to complain, has attracted widespread attention from the society.
Fortunately, not all courts do not accept it. For example, the Chaoyang District People's Court in Beijing not only accepted related cases, but also sent a seven-page judicial judgment to the Chinese Football Association in May 2020 after accepting a football training contract dispute. proposal.
The Chaoyang District Court held that the Arbitration Committee of the Chinese Football Association is not an arbitration institution established by the Sports Law or the Arbitration Law, so it cannot have the effect of “one-arbitration and finality” stipulated by law.
The Chinese Football Association's stipulation that "relevant disputes shall not be submitted to the court" is suspected of being illegal.
At the same time, the Chaoyang District Court also sent a letter to the General Administration of Sport, hoping to promote the revision of the Sports Law and establish a sports arbitration institution as soon as possible.
The Chinese Football Association and the General Administration of Sports replied that they would make rectifications.
In Dong Shuangquan's view, this case is a milestone in the development of China's sports rule of law.
Previously, the judiciary "stayed away" from sports autonomy.
"Cases that have a great impact on the relevant rights holders, such as disqualification of registration, lifelong bans, etc., cannot be used as an excuse for 'autonomy' to allow sports organizations to do whatever they want. Of course, judicial intervention is 'limited intervention' rather than 'unlimited intervention'."
Yuan Gang believes that the punitive measures in sports dispute resolution are special, on the one hand because of the sports autonomous management system, and on the other hand because of the unique rules system of sports.
Therefore, to a certain extent, sports dispute resolution does not want judicial participation, and at the same time, the judiciary is less willing to intervene in sports dispute resolution.
We not only need to respect the autonomy of the sports industry, but also allow the sports industry to resolve sports disputes professionally. With the help of the revision of the Sports Law, we must establish my country's sports arbitration system as soon as possible.
Comics/Li Xiaojun