Almost all scholars depict sport as an activity, characterised by an intrinsic ethical feature. Sports legal systems establish themselves as ethical legal systems, because of their Grundnorm, namely the ensuring of fair competition. Thus, they structure and organise themselves in order to ensure the compliance with such single absolute principle, up to the recession of the protection of individual rights. According to this distinctive feature, sports legal systems structure a peculiar justice system, that considers any violation of its Grundnorm as a serious crime for which very severe penalties are provided, aimed at punishing those who commit them or simply intend to commit them. In this sense we can interpret the rules of the WADA Code which, on the second violation, provide for very long disqualifications (up to eight years) if not life-long disqualification from the sport system. As far as doping is concerned, restorative rules are laid down alongside these sanctions, consisting of the "disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, points and prizes" (art. 9 - 2021 WADA Code). This regulatory provision would seem to constitute a kind of compensatory justice towards athletes competing against those whose performances were fraudulently altered. For the first ones we can detect a condition of passivity under the patrimonial profile, because they are deprived of the opportunity to compete under equal conditions. Therefore a specific credit position emerges, which the injured athletes may uphold in the sports legal system, particularly with sports institutions whose scope is to guarantee fairness in competition. The above cited sanction can be considered a recognition of damage done to the patrimonial interests of the not-doped athletes: the re-writing of the order of classification constitutes a specifically authentic reintegration. Is such reconstitution totally satisfactory? Without doubts it compensates for the injury suffered by the participants in that specific competition, but there is no room for compensation for damages suffered by athletes excluded from the competition, whose place was usurped by other athletes who were disqualified ex post facto. There is evidently a justice vacuum that does not seem to have a possible and/or viable solution, considering the unique and unrepeatable nature of the competition-event: even if it should be repeated under fair conditions, it would never be the same competition as the previous one, being disputed in another time and, above all, under different conditions (atmospheric, physical form). In this sense, the vicissitudes of the 100-metre at the 1988 Olympic Games of Seul are truly emblematic. It is well known how the 100-metre final had the order of finish rewritten, following the doping disqualification of winner Ben Johnson: so, Carl Lewis was awarded the gold medal taken from Johnson, but what about Attila Kovacs, who did not qualify for the final because he finished fifth in the semi-final run by Ben Johnson? Who ever remembers his name? What kind of compensation can be given to him, since he has been erased from the 'history' of the Olympics? The same happens in the case of sports fraud, which, although it is to be considered a violation of the Grundnorm of the sports legal bodies and organisations that claim to fight it with the same resolve as they have committed themselves against doping, does not seem to receive the same attention. In this case, there is a very detailed specification of fraud, which in the various Codes of Sports Justice can take the form of an action or intention aimed at altering the course and outcome of the competition either by offering or promising money or profits to complicit accomplices, or by providing false information and/or documents: this detailed description is not matched by a similar specification of penalties, which are not prescribed in the tabular form found in the WADA code, but rather in the indication of a minimum and a maximum penalty, often without reference to recidivism. All of this opens a justice vacuum, because of the areas of arbitrariness left to the sports courts, with outcomes that are often debated even several years after the sentences have been handed down, outcomes that raise doubts as to the proportionality of the penalties handed down. In this sense, the Italian sports judicial events relating to cases of sports fraud are emblematic: among them, it is worthy of note “Calciopoli”, the sports scandal that saw the involvement of many professional football teams, including Juventus F.C., relegated to the series B (the Italian cadet series) and deprived of two titles won on the field. In this case, can there be possible and viable solutions? Without going into the merits of the judgments, certainly the necessary brevity of the timing of sports proceedings does not help in the decisions of the courts, but, just to avoid the inevitable discussions about the alleged arbitrariness, perhaps a more homogeneous and more detailed structure, along the lines of the WADA Code for doping, would make the judgments less questionable. These brief analyses of sports offences, highlighting justice vacuums, which apparently cannot be filled, raise a fundamental question about sports justice, in particular its adequacy. Its appearance as ethical justice, while profiling restorative measures of equity, does not seem to respond to minimal demands of equality of the people involved both as active and passive subjects. Is it an irreparable inadequacy?
Is Justice in Sport defective?
Di Giandomenico, Anna
2024-01-01
Abstract
Almost all scholars depict sport as an activity, characterised by an intrinsic ethical feature. Sports legal systems establish themselves as ethical legal systems, because of their Grundnorm, namely the ensuring of fair competition. Thus, they structure and organise themselves in order to ensure the compliance with such single absolute principle, up to the recession of the protection of individual rights. According to this distinctive feature, sports legal systems structure a peculiar justice system, that considers any violation of its Grundnorm as a serious crime for which very severe penalties are provided, aimed at punishing those who commit them or simply intend to commit them. In this sense we can interpret the rules of the WADA Code which, on the second violation, provide for very long disqualifications (up to eight years) if not life-long disqualification from the sport system. As far as doping is concerned, restorative rules are laid down alongside these sanctions, consisting of the "disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, points and prizes" (art. 9 - 2021 WADA Code). This regulatory provision would seem to constitute a kind of compensatory justice towards athletes competing against those whose performances were fraudulently altered. For the first ones we can detect a condition of passivity under the patrimonial profile, because they are deprived of the opportunity to compete under equal conditions. Therefore a specific credit position emerges, which the injured athletes may uphold in the sports legal system, particularly with sports institutions whose scope is to guarantee fairness in competition. The above cited sanction can be considered a recognition of damage done to the patrimonial interests of the not-doped athletes: the re-writing of the order of classification constitutes a specifically authentic reintegration. Is such reconstitution totally satisfactory? Without doubts it compensates for the injury suffered by the participants in that specific competition, but there is no room for compensation for damages suffered by athletes excluded from the competition, whose place was usurped by other athletes who were disqualified ex post facto. There is evidently a justice vacuum that does not seem to have a possible and/or viable solution, considering the unique and unrepeatable nature of the competition-event: even if it should be repeated under fair conditions, it would never be the same competition as the previous one, being disputed in another time and, above all, under different conditions (atmospheric, physical form). In this sense, the vicissitudes of the 100-metre at the 1988 Olympic Games of Seul are truly emblematic. It is well known how the 100-metre final had the order of finish rewritten, following the doping disqualification of winner Ben Johnson: so, Carl Lewis was awarded the gold medal taken from Johnson, but what about Attila Kovacs, who did not qualify for the final because he finished fifth in the semi-final run by Ben Johnson? Who ever remembers his name? What kind of compensation can be given to him, since he has been erased from the 'history' of the Olympics? The same happens in the case of sports fraud, which, although it is to be considered a violation of the Grundnorm of the sports legal bodies and organisations that claim to fight it with the same resolve as they have committed themselves against doping, does not seem to receive the same attention. In this case, there is a very detailed specification of fraud, which in the various Codes of Sports Justice can take the form of an action or intention aimed at altering the course and outcome of the competition either by offering or promising money or profits to complicit accomplices, or by providing false information and/or documents: this detailed description is not matched by a similar specification of penalties, which are not prescribed in the tabular form found in the WADA code, but rather in the indication of a minimum and a maximum penalty, often without reference to recidivism. All of this opens a justice vacuum, because of the areas of arbitrariness left to the sports courts, with outcomes that are often debated even several years after the sentences have been handed down, outcomes that raise doubts as to the proportionality of the penalties handed down. In this sense, the Italian sports judicial events relating to cases of sports fraud are emblematic: among them, it is worthy of note “Calciopoli”, the sports scandal that saw the involvement of many professional football teams, including Juventus F.C., relegated to the series B (the Italian cadet series) and deprived of two titles won on the field. In this case, can there be possible and viable solutions? Without going into the merits of the judgments, certainly the necessary brevity of the timing of sports proceedings does not help in the decisions of the courts, but, just to avoid the inevitable discussions about the alleged arbitrariness, perhaps a more homogeneous and more detailed structure, along the lines of the WADA Code for doping, would make the judgments less questionable. These brief analyses of sports offences, highlighting justice vacuums, which apparently cannot be filled, raise a fundamental question about sports justice, in particular its adequacy. Its appearance as ethical justice, while profiling restorative measures of equity, does not seem to respond to minimal demands of equality of the people involved both as active and passive subjects. Is it an irreparable inadequacy?I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
