Justice or Injustice Code? Some Consideration about the new Italian Sports Justice Code

The adoption of a new Sports Justice Code by the CONI (Italian National Olympic Committee) has been a very important innovation for the sports system as a whole. In fact, before its entry into force, the Italian Sports Justice system is characterized by a multiplicity of distinct justice systems: each sports Federation had its own specific system of justice, with its principles and its rules of procedure. So the adoption of the new Sports Justice Code by the CONI changed the panorama, by introducing uniform criteria that have to be applied by each sports Federation. Not only, before its adoption, sports trials are characterized by the prevalence assigned to judges and by the compression of the right of defense. This is a compression justified by the need to assure the regular course of competitions and tournaments and by the intrinsically ethical nature of sports law system. Because of them, there remained a very little space to the accused to prove their innocence, also considering the difficulty of presenting evidence, that could effectively counteract the strength of reports, official or coming from state courts, used, instead, by the sports judges. Now, instead, thanks to the adoption of the new Sports Justice Code, there emerges an innovative feature, as soon as it is highlighted how principles for a fair trial have been postulated expressly, being stated the need to guarantee the “full protection of the rights and interests of the members, affiliated and other subjects” (art. 2 – Principles of sports trial, para. 1); as well as the implementation of “the principles of equality among parties, of an adversarial process, and other principles of fair trial” (art. 2 – Principles of sports trial, para. 2). A lack of justice finally filled? A careful analysis of the law provision reveals, however, chiaroscuros that seem to contradict this declaration of principles. It suffices to observe how the principles for a fair trial are not fully implemented. In this regard, critical legal issues emerge when it is considered how the right of defense is regulated. In fact, this right seems to be strongly compressed by the system of taking of evidence, which gives to judges a very wide freedom of obtaining evidence: a liberty of action that does not seem to leave much field for the counterarguments of the defense; a liberty of action that could lead to a discretion, really difficult to reconcile with the guarantee of the balance between the parties. Not only a discretion left to the judges in order to obtain evidence, but also a possibility of the use of presumption in judgments reasons not all limited, probably due to the difficulty of obtaining evidence characterized by objectivity, because of the non-state nature of the sports legal system. Moreover, it is to be considered how the right to defense seems to be strongly compressed by the need to ensure short trial times (dictated by the need to ensure a regular course of competitions). In this sense, although the equality among parties is provided for all sports proceeding, including those technical disputes, related to the deliberative procedures of sports courts (a principle confirmed by all that stated in art. 20 and 21 of the Sports Justice Code), I wonder what kind of equality may be realized facing an official report. In conclusion, we have a picture that highlights a clear contradiction between the statements of principle and what effectively disposed. I wonder whether they are unavoidable contradictions, because dictated by the nature of the sports legal system (remember the nature of the sports legal system, that can be qualified as a conventional system), or they can be solved, giving finally a positive response to the demands of justice that often go unheeded.