Dr. Salomėja Zaksaitė is a postdoctoral researcher at Mykolas Romeris University. Postdoctoral fellowship is being funded by European Union Structural Funds project “Postdoctoral Fellowship Implementation in Lithuania”.

Pseudo-criminal law and the fight against doping in sports

http://www.imdb.com/title/tt1638364/

In this case, the evidence against Mr. Armstrong is overwhelming. In USADA’s view, it establishes his doping beyond a reasonable doubt.United States Anti-doping Agency v. Lance Armstrong. Reasoned decision of the United States Anti-doping Agency on disqualification and ineligibility.

The same antidoping-related (e.g. trafficking or administration) offences are

dealt by the two systems of law

Criminal law with its public standard of proof

Disciplinary law with its private standard of proof

Criminal investigation might be dropped or only some perpetrators might be convicted (criminological associations with selective justice and funnel effect come to mind), and it is generally slower, whereas disciplinary investigation might be “successful” using collected evidence from criminal investigation

Standard of proof

Article 3.1 of the Code provides that: “the standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made.”

Two-track approachThe two systems of law (criminal and disciplinary

law) can interact relatively effectively: actually the practice shows that disciplinary authorities can “take over” the evidence from the law enforcement institutions.

For instance, USADA formally requested copies of non-grand jury evidence from the case where U.S. District Attorney was discontinuing the criminal investigation of Armstrong’s conduct. Also, USADA checked the communications via emails by Armstrong and the son of Dr. Ferrari. Emails were obtained from Italian Carabinieri.

Why Pseudo-Criminal ?

If the sanction is relatively strict and disciplinary authorities exert their disciplinary powers with the help of criminal law means, then comes a question of pseudo criminal law (which imitates criminal law in a bad fashion). Thus pseudo-criminal should not refer to the oxymoron “public law in private sphere”.

In order to tackle such a situation, one general rule is offered: the more serious allegation is made, the stricter sanction is entrenched for it, the stricter proving standard is to be applied.

“Stricter proving standard” does not necessarily imply substantial differences (for instance, more procedural rights) – strictness might refer to the higher degree of convincingness of the provided evidence, accordingly, the stringency of evidence should be tangible enough.

How to make normal from“pseudo” ?

To imply legal fiction: although the standard of proof de jure is “to the comfortable satisfaction” in reality the higher standard should be followed.

Thus, the Code must be applied not only according to its text, but also to its spirit and each separate case must be dealt according to its individual peculiarities.

Then the inevitable imitation of criminal procedure occurs, yet not in a bad fashion.

What this might mean within the terms of proving ?

More on that:

The interaction of criminal and disciplinary law in doping-related cases

Zaksaite S., Radke H.The International Sports Law JournalDOI 10.1007/s40318-014-0045-5 (online)

Fiction in criminal procedure: between the ontological "reality”, law making and application of law(Link)

Zaksaite S. Jurisprudence 2014, No. 21(1), pp. 244–258.

doi:10.13165/JUR-14-21-1-12

Thank you for your attention

salomeja.zaksaite@mruni.eu