Ethical and Legal Responsibility in International Sports in the IASL monograph Sports Law in the 21th Century 19.12.2021

Introduction.

In the conditions of the modern contradictory and divided world sport is becoming a factor of globalization, uniting humanity, various countries and population groups, contributing to mutual knowledge of different cultures. Sport creates new international institutions for the regulation of human relations, conditions for cooperation and trust of various peoples. Sport makes it possible to strengthen the friendship of peoples, international peace and suppress any attempts to discriminate people on gender, racial, political, and religious and other grounds. Sport today are together business, a part of education, medicine, science and cultural environment. Sport continues to capture new spheres of human activity and social structures of society.

It seems to me that we have also another more vision of sports. This is the moral and physical improvement of every person, the unification of humanity around universal human moral values. The idea of the founder of the modern Olympic Games, Baron de Coubertin, that not countries compete, but athletes for the sake of noble and just goals, remains relevant today more than ever. The greatest supporter and ideologist of the Olympic Movement, Pierre de Coubertin was convinced that sport is the source of the inner improvement of all people.1 Indeed, we should admit that we could not image sport without feat, nobility, honesty, sincerity, kindness, respect, without love for the surrounding people and humanity.

However, is sport always flawless and clean? Is the role of sport really so important in the moral improvement of the world and uniting people? Why really physical exercises and achievements in sports should only contribute to a positive change in the psychological and moral qualities of a person?

Researchers of the history of sports note that it was sport that became one of the causes of aggression, a sense of superiority and violence, as a result of which many people died and were injured. The history of sports knows many examples when athletes behaved immorally in sports competitions. Valery Steinbach, who has studied the history of the Olympic Games, writes that crimes, fraud, violations of the rules of Fair Play have taken place throughout the history of the Olympic Games. For example, chariot races in Ancient Greece were always accompanied by bribery and fraud, violations of the rules of the Fair Play. Even at the first modern Olympic Games in 1986, the Greek runner Vassilikos managed to cover part of the distance in a wagon. The whole history of the Olympic Games is full of such events.2

For example, we know many examples from the modern history of Russia, when famous athletes took the path of committing crimes, turned into famous bandits and headed organized criminal communities. Let's recall the famous Soviet and Russian boxer, five-time USSR champion Oleg Karataev, who was killed in New York (1994), who defeated Mohammed Ali (1974) and knocked out rivals 160 times. He was prosecuted for robbery and hooliganism; he was also one of the active leaders of the Bauman organized crime group. We can recall the murdered master of sports of international class in Greco-Roman wrestling Otari Kvantrishvili, the organizer of the sports criminal community, the leader of the Russian underworld, and the creator of the so-called “Sportsmen of Russia” political party. We can also recall Georgy Khizhnyak, the head coach of the Russian national karate team and the country's champion in this sport, who was sentenced in 2009 to eight years in prison for organizing a criminal community that stole prestigious and expensive cars for five years. The situation is the same in world sports. For example, in the United States, the famous tennis player Bill Tilden was convicted of seducing minors, the wrestler Booker T. was convicted of robbery in restaurants, the American football player Randy Moss was convicted of assaults with the use of firearms, another such player, Simpson, was convicted of double murder, armed robbery, creation of a criminal community. The FBI arrested ex-world boxing champion James Page in 2013 for robbing 8 banks. There are a huge number of such examples. The list of famous athletes convicted of crimes around the world is incredibly long3.

Sport is not a magic tool, a thing in itself, capable of transforming itself inner world of personality. Physical culture and sport play only a complementary role for the formation of human morality. Exercises and sports events by themselves apart from society and its social institutions and communities can’t meet the challenges of building a highly moral person. Sport, like any other social phenomenon, is contradictory in nature. Sport can give birth to both heroes and very dangerous criminals. Even the founder of the modern Olympic movement, Baron Pierre de Coubertin, admitted this. Pierre de Coubertin wrote in this regard: "Athletic movement can cause to life the noblest passions, as the basest, it can develop a sense of selflessness and dignity, as the love for wealth, it can be knightly noble and depraved, courageous and brutally violent, and finally, it can be used to strengthen the peace, and to prepare for war "4. In this Chapter, we will try to understand the legal and moral nature of illegal acts in professional sports.

§ 1 Deontology and Ethics in Sports World.

It is well known that deontology (from ancient Greek δέον "ought") is a teaching about the problems of morality and ethics; this is a section of ethics. Deontology is guided by the principle of compliance or non-compliance with certain rules. Sometimes deontology is called the ethics of duty or the ethical system based on the rules of proper conduct. Moral (lat. Moralitas, the term was introduced by Cicero from lat. Mores "generally accepted traditions") is a set of special, spiritual rules governing human behavior, ideas about right and wrong, bad and good accepted in society. Sometimes the term is used in relation not to the whole society, but to its part, for example: Christian morality, Bourgeois morality, Sports morality etc. Morality, accepted and prevailing in a particular society, is called public morality. Morality is studied by a separate philosophical discipline - Ethics.5

Morality is always formed under the influence of a specific level of development of civilization and social relations. Each historical epoch gave rise to its own philosophical schools of morality. For example, in ancient Greece, Socrates viewed morality as divine law. Philosophers understood both morality as the pursuit of happiness and pleasure (hedonism) and as complete freedom from pleasures and passions (stoicism). In the Middle Ages, the understanding of morality was associated exclusively with the existence of God. In the Renaissance, morality is seen as a form of self-affirmation of the individual, and man as the supreme being of nature, created to realize its internal forces and capabilities. Emmanuel Kant introduced the concept of a categorical imperative, according to which morality was viewed as an internal law that guides a person through life, often contrary to any expediency.6 There were also those philosophers who, under the guise of studying morality, implanted the ideology of evil and fascism (A. Schopenhauer, O. Spengler, and F. Nietzsche). In particular, Nietzsche wrote that the individual is a "miserable worm." A strong person, in his opinion, does not need morality; he should be outside of morality. The main value is the will and power, the superman. War, in his opinion, is the highest manifestation of the human spirit, and the state is organized immorality. "Force gives the first right, and there is no right, which in its essence would not be appropriation, usurpation, and violence."7

Morality is also usually understood as philosophical and religious concept about Kind and Evil, as well as a set of norms of behavior arising from these ideas.8 The presence of Kind and Evil in professional sports is predetermined by the very nature of man. In every person, the presence of Evil is as natural as Kind. Kind and Evil are fighting in every person, and the moral essence of a person depends of the results of this struggle. “Human activity, from the point of view of morality,” - writes sports ethics researcher Yagodin, - “is a choice between Kind and Evil. This choice depends on the free will of a person and depends of how a person understands the essence of Kind and Evil, how he or she evaluates their actions in relation to these key concepts”.9 This struggle is the source of the development of the individual and all of humanity. In sports, as in the rest of the world, Hegel's philosophical law of the unity and struggle of opposites operates. This is the essence of the universe. Hegel wrote, we cognize the Absolute Idea (God), and the Absolute Idea (God) cognizes itself in this relentless struggle of opposites.10 The coexistence of two mutually contradictory sides, their struggle and their merging into a new category constitute the essence of the dialectical movement. Sometimes the line between Kind and Evil is very thin. It is very often difficult for each person to understand where Kind and Evil are. Cognition of these ideas sometimes goes to the end of a person's life. The path to understanding these concepts is difficult not only for a specific person, but also in the public consciousness of various communities, including in the field of professional sports. Kind and Evil are in constant unity. It is impossible to understand what Paradise is if you do not understand the concept of Hell. Kind and Evil, on the one hand, exclude and deny each other. On the other hand, they cannot exist without each other, and constantly interact, approach each other and repel each other. The amount of accumulating Evil at some stage is synthesized with Kind and passes into a new quality. However, this new quality is inevitably again in contradiction with the new challenges of the time, it starts to divide again into Kind and Evil. And these opposites again begin to fight each other at a new qualitative level of spiral evolution. It all starts again. This is the essence of our Universe, this is the essence of the development of humanity, and this is the essence of the development of any community, including the sports community and any personality, including athlete. This is the essence of the dialectical development of the world.

Modern research shows that morality is a product of evolution and morality was created to curb the selfishness of living people and increase their survival and adaptability to the environment. Scientists view humans as a social animal capable of developing only in a society that sets the rules of morality for all members of this society. It is surprising and shocking that biologists claim that even monkeys, wolves, dolphins, elephants, ants and all other "social animals" have morality. All these "social animals", in their opinion, on a par with such a "social animal" as a human, are capable of empathy, reciprocity, nobility, altruism, cooperation. For example, a flock of dolphins often helps sick and injured fellows come to the surface of the water so they can breathe. Ants infected with the spores of a deadly fungus go to die alone far from the anthill, so as not to infect their fellows, etc. 11 Scientists have proven that social animals need morality to keep their species from extinction. Any community of social animals strives to maintain and protect morality as a guarantee of successful evolution. We need human morality to keep human society from extinction. This also applies to sports. If we want to preserve international sport, we must preserve moral standards and maintain sports traditions that allow competitions to be held honestly, without any humiliation of an opponent, regardless of his gender, sexual preferences, race, nationality, religion and belonging to any state. We should respect the diversity of the sports world, the different points of view of athletes, and seek a common solution to all sports problems.

Understanding morality in sports is primarily associated with the concept of "Fair Play". The Code of Sports Ethics of the Council of Europe “Fair Play - the Path to Victory” (approved by the Committee of Ministers of the Council of Europe on 24 September 1992) defines this concept in Article 6 as follows: “Fair play is defined as much more than playing within the rules. It incorporates the concepts of friendships, respecting others and always playing within the right spirit. Fair play is defined as a way of thinking, hot just a way of behaving. It incorporates issues concerned with cheating, gamesmanship, doping, violence (both physical and verbal) exploitation, unequal opportunities, excessive commercialization and corruption”.12 Currently, there is a global Fair Play movement (founded in 1958), which is headed by the International Council of Sport Science and Physical Education (ICSSPE). In 1964, the Committee International for Fair Play (CIFP) was formed as part of this Council. All the largest national Olympic committees and the largest world sports federations (FIFA, UEFA, IAAF, etc.) have similar divisions. Their activities are aimed at promoting the ideas of Fair Play and they annually present awards that are presented for nobility, the manifestation of the Olympic sports spirit and adherence to the principles of fair competition in sports. Thus, the Russian Fair Play Committee recommended in August 2018 to reward athletes for helping an opponent, for actions to cancel unfair decisions of judges in relation to rivals, for charity in favor of people in need 13.

Moral behavior in sports also presupposes that every athlete has such qualities as humanity (good attitude towards people around and the world); respect (good attitude for opponents, judges, coaches, teachers and all people); rationality (wisdom and consistency in behavior at competitions, training and in everyday life), courage (to overcome fear of brutal eminent rivals) and honor (to achieve sports victories without losing the dignity and respect of the audience). Moral behavior in sports is largely determined by the moral stamina of athletes. The ability to maintain and implement moral positions in different situations, to overcome external and internal difficulties, is the essence of the moral stability of the personality of any athlete. Sporting success, the achievement of world and Olympic records depends on the athlete's moral stability. The higher the moral stability of the athlete, the more confidence that this athlete will comply with the norms of sports ethics and sports law.

The moral stability of the athlete is formed over many years in the process of education in the family, school, university, sports club and sports federation. However, there are situations when the moral formation of a personality occurs within seconds. Athletes very often have to make difficult decisions about choosing positive and negative behaviors in moments of life. It can be ordinary competitions and the Olympic Games; it can also be ordinary life situations associated with the use of physical force in protecting the life and health of athletes and their relatives and friends. It happens in the so-called borderline, at an intuitive level, when it is necessary to make positive or negative decisions for the moments of life. According to the philosophy of existentialism, a person is tested in borderline situations, when his moral essence is revealed in the face of death, stressful or extreme situations, including those that abound in sports life. In such moments, the true essence of the athlete is revealed, the degree of heroism or sinfulness of this athlete. For example, an Olympic wrestler can win a victory; use his real chance, unnoticed by the judges and others, to carry out a prohibited technique. He can win the competition dishonestly and receive the long-awaited fame, an Olympic gold medal and money, a prestigious car, world fame, or he can honestly lose a fight to a stronger opponent, not justifying the high hopes of coaches and sport federation, its family and friends, fellow citizens of the country, depriving the national team of the country of victory. Within a second, the athlete must make a choice. The athlete must decide what a true moral value is and what is not. It is at this moment that the moral nature of this athlete is determined, its nobility, honesty and loyalty to the ideas of Olympism or cowardice and betrayal. In a split second, all passions and ideas, conscious and unconscious, are mixed. It happens of an existential insight that allows the athlete to make a correct or not correct moral decision in a difficult sporting duel or competition. It is in these moments the moral essence of the athlete is manifested. It is at this moment a hero or a criminal is born. This choice can become the main one for the athlete until the end of its life. These seconds make many "gray", "everyday" athletes in bright and outstanding personalities, a true leaders and sports "stars", that can reach not only the greatest sports achievements, but also be a moral example for the society, especially young people. However, these seconds can turn athletes into the greatest criminals of our world, great cynics who can destroy world sports.

That is why it is so important to understand sport as a victory of Good over Evil, a victory not over an opponent, but as a victory of universal human values. Therefore, it is not quite right, when modern politics and sport functionaries in Russia and the other leading countries of the world forget about the purpose of the Olympic Games, as an important instrument for promoting human values, and use sports as a way to prove the superiority of one country over others. And, of course, the most important thing in the Olympic Games or other competition is not the number of medals won by national teams, as many sports functionaries and politicians consider. The main thing, however naive it may sound, the desire of athletes to determine the priority of the spiritual and moral values, to preserve peace in the world, to make the world better, cleaner, and more morally perfect.

Not the number of Olympic medals uplifts the country, but how they were won by athletes, models of their heroic and highly moral behavior, how they have demonstrated respect, tolerance and nobility to opponents and judges. We can remember the outstanding Italian bobsledder Eugenio Monti (January 23, 1928 – December 1, 2003) who repeatedly sacrificed his success in order to create equal opportunities for all athletes, in particular, lost in the Olympics, because often helped his rivals during the competition to repair sports equipment. He was awarded by Pierre de Coubertin medal given by IOC to those who demonstrate the true spirit of sportsmanship.14 I would like to give another example. Polish surfer Sofia Noseti- Klepacki, who won a bronze medal at the Olympic Games in London 2012, decided to sell the medal to give the money for treating and saving the life of her neighbor, a little girl of five years. Seems this action was more important than her victory at the Olympics. Her noble act raised the prestige of her country, its citizens, is much higher than her Olympic medal.15 That's why Olympism in the Olympic Charter is declared as international idea, based on the educational value of good example and respect for universal fundamental ethnic lines.

However, there may be some doubts about the ability of sports to provide only a positive impact on the development of the individual, because sports require a competition and antagonism of athletes. The origins of this competition lie in the nature of humanity in the days when living organisms and populations were struggling to survive and lead. It would seem, therefore sporting events should generate aggressiveness and intolerance of opposing parties, all kinds of aggressive manifestations among athletes. But we, on the contrary, often see exactly the opposite process, when competition in the sports does not become means of suppression or domination of one person over another, but a way of improving the physical and spiritual personality, the spirit of friendship and cooperation. Philip Ponomorev in his brochure, published in Russia, "Christianity and sport" gives an example of the two Swedish skiers who are jointly overcome a distance of 90 miles in severe weather conditions, helping each other to lay the ski runs. At the end of the race their irreconcilable rivalry turned into a friendship and these athletes crossed the finish together, embracing with each other as brothers and close friends, and divided equally the victory. As a sign of their joint victory athletes melted the large gold medal in two small.16 It should also keep in mind that the competition plays a very positive role in people's lives, allows a person to compare own abilities with other ones; thereby encourages people to be active and self-improvement. Competition is held not to destroy or humiliate the opponent's dignity; it allows objectively evaluate the possibility of athletes and promote the development of their personality. In accordance with the "Manifesto of Fair Play", adopted by the UNESCO International Council of Sport and Physical Education, athlete must behave honestly and with dignity, respect opponents and judges, remain calm after the victory and quietly accept defeat.

Recent scientific studies show that people want in the sport to know themselves, cognizes own moral and rational nature, their essence, overcome natural fears, negative emotional nature (fear, despair, hopelessness, laziness, weakness and others), and defeat them. Athletes constantly overcome own shortcomings for the process of training and competition. This is the most difficult struggle - the struggle with own shortcomings. The future of the athlete is determined by who will win the fight. In this connection Baron de Coubertin note, it is the victory over own shortcomings, rather than over a rival, and in three times sweeter the victory won in a noble and fair fight. "The award reaches man when he has to fight with himself or against difficult circumstances, and defeated own character ...»17. The knowledge of the own inner world allows estimating the spiritual world of other people, to build up a relationship with them in ordinary life and in sports. Athletes who can reach own understanding of the world, manage not only own body, but also the emotions. Such a person may become not only as an architect and builder of its internal, but also external world. Such a person is capable of not only the design positive developments of own personality, but also to become an example of ethical behavior for others, to take an active position to change our world in the right way, to unite communities and humanity.

Unfortunately, sometimes we observe the opposite processes, when sports training contributes to a change in people's morale in the bad direction, their transformation into cynics and criminals, for whom violence becomes a feature of their nature and way of life. This happens as a result of the purposeful ideology of Evil propagated in some sports sections and clubs. Unfortunately, this ideology began to be implanted in some Russian physical culture and sports organizations. For example, according to one of the sports ideologists and martial arts trainer V. Shlakhter, everyone must find a beast in himself in the “bottomless depths of the subconscious” in order to defeat an opponent, since a beast is a great power. In his opinion, sports are a necessity "for all males and females who want to raise their rank in the human flock." The goal of sport is to educate the upbringing of "supermen" who must survive "in the world of hunters and prey", where moral norms are good only "for the sheep, not the shepherds."18 It seems that sport will not be able to make a highly moral person out of such human material, which has become a “beast” or “superman,” since an immoral worldview and antisocial attitudes in this person have already been formed in the process of sports training. This deformation of morality is very dangerous. Often this deformation is specially reinforced by interested persons. This is very dangerous for the sports community. If somebody deliberately destroy moral norms, then any social community and human personality will be destroyed. This can be done by changing the concept of Kind and Evil. If, for example, a trainer constantly breaks traditions and norms related to the observance of the rules of Fair Play; to tell athletes that doping is normal, a match fixing is normal, that it is permissible to violate the rules in the name of victory, then we will observe the criminalization of the consciousness of such athletes. Indeed, some coaches quite deliberately try to influence the minds of athletes, change their ideas about "Kind" and "Evil", and tell them that sports victories must be done "at any cost." It is not surprising that under the influence of such an "educational" process, entire sports clubs and federations find themselves in a state of destruction, where, for example, violations of anti-doping norms become the good norm and "normal" behavior. These negative processes contributed to the spread among some athletes of cynical behavior associated with a contemptuous and ironic attitude towards the norms of sports ethics and Olympic values. Their moral values are devalued. Voluntarily or involuntarily, some of these athletes turn into followers of Machiavellianism19. In their opinion, any means are permissible to achieve the goal. Olympic ideals are beginning to be understood by them as something formal, preventing them from achieving gold medals and wealth. Athletes sincerely begin to believe that in sports should only rely on strength and deception, and not on high morality. They believe that high morality can be neglected if there is a high goal. For the sake of gold medals, selfish intentions, sometimes for the sake of a falsely understood sense of patriotism, they are ready to use doping, other prohibited substances and methods, cause deliberate damage to their opponent, participate in fixed matches and commit other immoral and illegal acts. Very often we could observe a situation when an athlete justified his or her deception and dishonest actions with high and noble goals. For example, some Russian athletes and coaches justified the use of doping with a desire to ensure the victory of the Russian national team at any cost and to prove to everyone that Russia is a “Great Sports Power”. They used doping for sporting victories, despite the fact that doping is a criminal and administrative offense in the Russian Federation. In fact, they did not care about the interests of their state. They were ready to turn away from the symbols of their state and fly under a neutral flag. Their behavior was based on purely cynical, selfish and vain personal motives. Unfortunately, this is the bitter truth.

What are the reasons for the moral decline of some athletes? These reasons are deeply rooted in the modern capitalist world. The ideology based on the ideas of the commercialization of sports, tough competition and survival, making a profit at any cost has brought new false moral values to professional sports today. The examples of athletes who managed to become dollar millionaires through brutal victories and advertising their unique opportunities came to the fore. Altruism in sports, purity of thoughts, a kind attitude towards the surrounding athletes, the ability to empathy, the desire to assist a less successful and advanced athlete have faded into the background. There is an active process of replacing the ideology of high morality and Olympic values with the ideology of the commercialization of sports. However, it should be borne in mind that more global factors also affect the moral climate in the sports community. The world around us is changing at a catastrophic rate. Globalization, the Internet, new technologies are changing the consciousness of people, increasing the openness and transparency of all spheres of human life, including professional sports. The world is awakening and a new reality and morality appears. People are becoming more intolerant of immorality, crime and corruption in all areas, including sports. At the same time, we are witnessing destructive processes. Pandemic, political and environmental problems are destroying our world, contributing to military conflicts, increasing the isolation of countries and individual communities, including sports. We are seeing stagnation in the global economy, in particular, a drop in income in the sports industry. Migration creates problems in employment, including in professional sports. Many sporting events are being shut down and blocked for political reasons. Increasingly, there are facts of exploitation of the labor of athletes, especially children, discrimination of athletes on national and religious grounds. However, we should be optimistic. We hope for the emergence of new social and economic models of a just development of the world, the creation of inclusive capitalism, and the unification of humanity on the basis of high morality. We really want to improve the moral atmosphere in world sports. Maybe these are naive dreams. However, without positive thoughts and real actions, we will not be able to change this world and morality for the better.

§ 2 Deviant and Criminal Behavior in Professional Sports

In the broadest sense, behavior in science is understood as a certain established image of interaction with the environment. Human behavior is determined by social norms. What is a social norm? A social norm is a generally recognized rule, a pattern of behavior or action. Social norms are usually divided into traditions and customs, moral, legal and religious norms.20 The norm of behavior is also called the average pattern of behavior in a mass of different behaviors. Anything different from the average social norms is considered as deviant behavior. Deviant behavior can be both positive and negative. You can be a genius, a prophet or a saint, or you can be an alcoholic, drug addict and murderer. You can accomplish a feat, but you can commit a crime. And all these opposing patterns of behavior will be united by one common concept of "deviant behavior."21

Society, as a rule, encourages the usual standards of people's behavior, which are customary and do not violate the established way of social life of people. Thus, society provides a certain stability of relations between people, harmony and tranquility in society, protection from revolutions and other social collapses. However, unfortunately, we have another truth. Life according to average norms without deviations leads to stagnation and decay of society, including professional sports, as a part of this society. A society that lives exclusively according to average norms, suppressing any outbursts of new behavior, creative and other activity of people, plunge into a socio-psychological uncomfortable decaying environment, where stagnation and interpersonal conflicts begin to flourish with unusual force. Most often, these processes take place in totalitarian states, where any initiative and creativity that is not approved by the autocratic regime of power is suppressed. All of the above fully applies to professional sports. A sport where passions do not boil, Olympic and world records are not set, where new forms and methods of sports training do not appear, where there are no sports feats, no breakthrough technologies of sports training, other positive deviations, will inevitably rot and plunge into the average environment of existence. Society will not develop without deviations from the usual social norms. The nature of any person is such that he will always deviate to one degree or another from generally accepted norms in a positive or negative direction. Deviation from norms is natural and necessary for human development. This is determined by the dialectics of the development of the world and human society. Without deviant behavior, progress in the development of humanity is not possible.

People quickly adopt patterns of deviant (unfortunately sometimes negative) behavior, and norms of deviant behavior in the future often acquire the status of ordinary and habitual norms. For example, quite recently, the fascination with computers and the Internet was considered a deviation from the usual behavior characteristic of very smart and highly educated people. Now this is a common norm of behavior that applies to all segments of the population, from children to very old of deviantology pensioners. Now the modern life of any person cannot be imagined without the Internet, smartphones, tablets, mobile phones and other devices. In sports, deviant behavior is more common than in other areas of life. Sport, more than any other area of human activity, is associated with overcoming stereotypes from ordinary norms. Recently, for example, the wearing by an athlete from South Africa Pistorius of carbon-fiber prostheses for legs ("Cheetah Legs") was perceived in the sports world as a deviation from the norms of sports life. The International Association of Athletics Federations (IAAF) even banned their use in 2008. According to this federation, "Cheetah Legs" created advantages for Pistorius over other "regular" athletes. However, in the same year, the I Court of Arbitration for Sport in Lausanne overturned this decision and now "cheetah legs" can be freely purchased in any specialized sports online store. They are actively used in Paralympic sports. It became a usual norm.

Paradoxically, even negative deviant behaviour can also play a positive role in the development of society. The founder of sociology and criminology, Durkheim, wrote about this. The crime, in his opinion, testifies to the need for changes in society and is a useful "prelude" to reforms.22 We should agree with this opinion. For example, the doping scandal and serious violations of anti-doping legislation that have recently occurred in Russian sports forced the society and the leadership of the Russian Federation to take a fresh look at this problem and fundamentally react to this situation. A national plan to combat doping was adopted, criminal liability for inducement to doping was introduced, and in general, the level of organization of the fight against this negative phenomenon was significantly increased.

Deviant behaviour with a minus sign is also called immoral, delinquent (illegal) and criminal. Traditionally, immoral behaviour includes the behaviour of people associated with a violation of morality (alcoholism, drug addiction, suicide, divorce, etc.). As for delinquent behaviour, this term is closer to the concept of an offense. The term delinquent behaviour is often used in connection with harm to society and individuals and, above all, often in the context of describing juvenile delinquency. Criminal behaviour is behaviour associated with a violation of the norms of criminal law, when the facts of the commission of a crime take place. It should be borne in mind that in sports and ordinary life, these concepts of delinquent behaviour may differ significantly from each other. For example, if someone punches a person on the street with his fists, then such actions, in accordance with national legislation, can be considered an administrative offense or a criminal offense, depending on the severity of the injury. In boxing or martial arts, the same action in the ring is considered to be part of an official competition, and a good kick from the athlete is encouraged and a winner's prize can be expected.

All these concepts of immoral, delinquent and criminal behavior are related as "whole" and "part". Immoral includes delinquent behavior. Delinquent behavior includes criminal behavior. For example, if an athlete suffers from gambling addiction and spends all its money in bookmakers, this is immoral behavior. If an athlete places bets on sport, then this is delinquent behavior associated with a violation of the norms of current sports law. If an athlete places bets on a match fixing in which he or she participates, then this is criminal behavior that violates the norms of the Criminal Code.

Human behavior is always in interaction with the external environment. First of all, the attitude of an athlete to behavior is important, which in psychology is defined as a conscious or unconscious intuitive predisposition to a certain activity in a certain situation23. For example, if an athlete has a well-formed antisocial attitude to use doping to achieve any sporting victory in order to gain fame and monetary rewards, he will not be stopped by any of the numerous prohibitions and forms of control. Such an athlete will always seek to mislead the representatives of the World Anti- Doping Agency (hereinafter - WADA) and national anti-doping agencies, secretly use prohibited substances, deceive coaches, sports doctors and sports teammates. Its antisocial attitude will be based on sincere convictions that it is impossible to achieve sports records without doping, and that any means and methods are permissible to achieve sports victories and obtain material benefits. If we study the formed psychological attitudes of an athlete, then we will be able to understand its moral status, predict positive or negative patterns of its deviant behavior.

§ 3 The Legal Nature of Professional Sports and Liability for Unlawful Behavior

What legal norms regulate human behavior in professional sports? It is rather difficult to answer this, at first glance, simple question. To do this, we need to understand the legal nature of international sports, and, in particular, plunge into the historical analysis of concepts such as Lex Sportiva, Lex Mercatoria, Lex Ludicia and Lex Arbitrii. Traditionally, all researchers note the similarity of the concepts "Lex Sportiva" and "Lex Mercatoria". The concept of "Lex Sportiva" began to appear in the scientific literature since the 90s of the last century. These concepts were constantly changing, filled with new legal content and meaning. Lex Mercatoria, on the other hand, is a purely historical term, derived from the Latin term “Merchant law”, and this term has traditionally been understood as a system ofinternational customs and best practices created by merchants in the Middle Ages to conclude commercial transactions. This system has always functioned autonomously and outside the legal field of the national law of various states and allowed trade relations to flourish. Moreover, states themselves sought to recognize this system of trade practices and customs, and to incorporate this system into their own systems of national law. However, oddly enough, "Lex Mercatoria" to this day remains one of the most controversial phenomena in private international law, and there is no common understanding of the essence, nature and content of this phenomenon. The situation is the same with the Lex Sportiva concept. Lex Sportiva also originally included rules, customs and traditions in sports, rules of sports games and refereeing. Then the rules governing the activities of international sports federations and organizations, sports arbitration courts, the Court of Arbitration for Sport in Lausanne (Switzerland) came. Like the Lex Mercatoria, the Lex Sportiva system operated autonomously, and in fact became a non-national regulator of international private sports relations. Just like Lex Mercatoria, the concept of Lex Sportiva has not yet been defined clearly enough and causes a lot of controversy in the legal and scientific world. The renowned sports law scholar in the United States, Professor James Nafziger, notes that Lex Mercatoria and Lex Sportiva are very similar in origin, coming from a common practice supported by arbitration proceedings. There are many definitions of Lex Sportiva, from the recognition of this concept as international sports law in sports to the recognition of this concept only as a set of principles and rules, decisions established by the Court of Arbitration for Sport in Lausanne and decisions of other international judicial bodies.24 According to the German scientist Klaus Vieweg "Lex Sportiva" consists not only of the rules and regulations of national and international sports federations, but also of sports principles approved by the International Court of Sports in Lausanne. Klaus Vieweg writes:” What exactly is meant by the term Lex Sportiva? That is not very clear. The term Lex Sportiva, with its variety of different definitions, should describe the phenomenon of self-regulation in the realm of sport. It is therefore advisable to include under this heading the entire breath of self- enacted, non-state law that exists in relation to sport. This consists not only of the rules and regulations of national and international sports federations, but also of the general and sport-specific legal principles developed by the CAS”.25 We should agree with these arguments. Many of the rules in Lex Sportiva are autonomous and self-regulatory. This applies primarily to Lex Ludica, i.e., the rules of sports games, where decisions on responsibility are made in accordance with sports regulations by individual sports judges and referees responsible for the conduct of specific sports competitions. Arbitrators and referees of sports competitions are guided only by the regulations of specific sports federations and actually replace all judicial bodies during the period of sports competitions. It is very difficult to challenge their decisions even in the Arbitration for Sport in Lausanne. Recently, for example, at the Olympic Games in Tokyo (2021), a loud scandal erupted about the alleged wrong refereeing in rhythmic gymnastics competitions. The coach of the Russian national team, the wife of the Russian billionaire Irina Viner - Usmanova accused the judges of the competition of unqualified refereeing, as a result of which the Russian gymnasts the sisters Averins received silver medals, while the Israeli gymnast Lina Ashram, who made a gross mistake, received a gold medal. The Russian state and the Russian Olympic Committee supported the position of Viner-Usmanova. The best Russian sports lawyers helped to solve this problem. However, no one was able to cancel the results of sports competitions, since the decision of the arbitrators on the rules of the Lex Ludica competition turned out to be higher than all lawsuits and official appeals. Even the Arbitration for Sport in Lausanne did not have the right to decide on this case, which is in the exclusive jurisdiction of the arbitrators of the International Federation of Rhythmic Gymnastics.

Professor D. Panagiotopoulos, President of the International Association for Sports Law, distinguishes between the concepts of international law and Lex Sportiva. In his opinion, there is no system of compulsory international legal proceedings and punishment in the system of general international law. At Lex Sportiva, individual legal responsibility and punishment for athletes is always present. Professor Panagiotopoulos notes: “Failure of the athlete to abide by the rules of Lex Sportiva activates a system of penalties which vary from fines and suspension to partial and life game exclusion. The system of penalties for the athletic existence of the individual athlete is the equivalent of detention, temporary incarceration, and life imprisonment in a “land” of non-athletic athletic competition. This is a crucial difference between international law and Lex Sportiva: an effective enforcement mechanism is definitely not one of the charactecteristics of international law while the sophistication of sports law international as Lex Sportiva has in terms of enforcement is impressive”.26 Undoubtedly, Professor Panagiotopoulos is right. Even the ethical code of conduct at Lex Sportiva often looks like disciplinary, administrative, and criminal law. For example, in accordance with paragraph 2 of Chapter 6 "Measures and Sanctions, Disciplinary Procedures and Dispute Resolution" of the Olympic Charter, the IOC Executive Board may prevent athletes from participating in the Olympic Games, revoke their accreditation, and disqualify them only on the basis of the IOC Code of Ethics.27 Similar regulations apply in all major international sports federations. In particular, in accordance with paragraph 7 of Chapter 2 of the Code of Ethics of the International Football Federation (FIFA), violations of ethical standards may be subject to such sanctions as refund of awards, fines, social work, a ban on entering the stadium, a ban on participation in any activity related to with football, etc.28 For example, the Judicial Chamber of the Ethics Committee of the International Federation of Football (FIFA) suspended the former secretary general of the organization, Markus Kattner, for 10 years from any activity related to football for violation of ethical standards. In addition, Markus Kattner was fined one million Swiss francs (approximately 940 thousand euros). 29

The most surprising thing is that the severity of punishment in Lex Sportiva is much higher than in the administrative and criminal laws of many countries. For example, under the World Anti-Doping Code, life-long suspension may be imposed on any athlete and sports physician for distributing a prohibited substance or method. While, for example, in accordance with the administrative and criminal Russian legislation, disqualification is provided for only no more than five years. Lex Sportiva's rules and regulations are widely applied alongside national and international law around the world. In the Russian Federation, for example, sports federations are vested with broad powers to apply Lex Sportiva standards. According to Article 20 of the Law on Physical Culture and Sports of the Russian Federation, the organizers of a sports event of a sports competition have the right to determine the types of sports sanctions, including sports disqualification, a warning and a fine. They also have the right to establish the procedure for the application and execution of sanctions, their suspension, appeal or release from them. They can independently determine the procedure for the formation and activity of the bodies (persons) applying (imposing) the corresponding sports sanctions. Moreover, in accordance with the law, not only national, but also international sports federations can disqualify athletes. Interestingly, the Russian Supreme Court recognizes the legitimacy of these disqualifications, in fact recognizes the legal force of the regulations of international and national sports organizations on a par with the decisions of Russian courts of general jurisdiction. However, the jurisdiction of sports organizations extends only to sports entities. Any sports entity that in one way or another has officially recognized sports regulations voluntarily are considered to have entered into an agreement on joining agreements with sports federations in accordance with the requirements of civil law. Such affiliated entities shall be subject to punishment in accordance with the rules of sports law. Withdrawal from sports excludes the possibility of applying sports sanctions. For example, if a sanction of disqualification is applied to an athlete, then this sanction ceases to apply from the moment the athlete leaves professional sports.

But is it only the norms of sports law that establish responsibility in the field of sports? Of course not. In the Russian Federation, for example, legal relations in the field of sports are governed by the norms of labour, civil, administrative and criminal law, as well as other branches of law. There are a lot of these norms of various branches of sports law. Therefore, in the scientific circles of the Russian Federation, the issue of codification of all sports legislation is currently being considered. In particular, the issue of creating, following the example of France, a national Sports Code, accumulating all these norms, is being discussed. In 2008, the Labour Code of the Russian Federation, for example, appeared chapter 54.1 "Features of the regulation of the work of athletes and coaches" (introduced by federal law of 28.02.2008, No. 13-FZ), which contains norms on the responsibility of athletes. In particular, in accordance with Articles 348.5 and 348.11, the employer is obliged to suspend the athlete from participating in sports competitions in cases of sports disqualification, at the request of the sports federation. An employer may also terminate an employment contract for sports disqualification for a period of 6 months or more or for an anti-doping rule violation at the decision of an anti-doping organization. In addition, the employer in this case may require a cash payment from the athlete. An employment contract with a coach may also be terminated due to violation of anti-doping rules, including those approved by the international anti- doping organization30.

However, courts of general jurisdiction also consider a large volume of cases in the field of professional sports. In the history of modern Russia (the Russian Federation as an independent state appeared in 1991), more than 100 thousand civil court decisions related with varying degrees to professional sports have already been adopted, including more than 20 thousand decisions of arbitral awards of districts, more than 25 thousand court decisions of general jurisdiction, more than 5 thousand decisions of the highest courts in specific cases. For example, the Intellectual Property Court alone has considered more than 800 cases related to professional sports.31

However, should we trust all the rules of sports law? Are all norms of sports law as legitimate as the norms of national law adopted by parliaments, elected officials and referendums by the people? These are not easy questions. Unfortunately, we cannot answer all these questions simply and convincingly. The sources of sports law vary and the degree of their legitimacy can vary. First of all, this concerns international sources of sports law. Among them may be UN decisions, international treaties, decisions of international sports organizations, unilateral acts of states, decisions of international non-governmental organizations, decisions of anti-doping organizations, decisions of international sports courts and arbitration tribunals, and many others. Without a doubt, among the sources of international sports law, the most significant from the point of legal force are decisions of international courts (arbitration) and international documents signed at the government level. Such a document, in particular, is the international Convention against doping in sport, adopted at the UN conference on education, science and culture (UNESCO)on October 19, 2005 (Paris, France) and ratified by UNESCO members. However, the legitimacy of not all sources of international sports law gives rise to a well-founded and complete sense of confidence. First of all, this feeling concerns the decisions of international non-governmental sports organizations, which are formed by a narrow circle of people, on a non-alternative basis, not by direct voting, without taking into account the opinion of national sports organizations. Elections to such organizations are not always transparent and meet generally accepted democratic standards. Thus, members of the International Olympic Committee (IOC) today are not directly elected by national sports organizations. In accordance with the Bye-Laws to Rule 16 of Chapter Two (Section 2.5.1) of the Olympic Charter, IOC members are elected by the current members of this organization on the proposal of the IOC Executive Board. In fact, the IOC Executive Board decides who to elect and who not to elect to the ranks of its organization. Naturally, in such elections, the formation of the IOC Executive Committee is under the control of the IOC Executive Committee and its President. It seems to me that such an election system turns the IOC into an elite club of sports aristocrats, focused mainly on the decisions of the President and the Executive Committee of this organization, rather than on the interests of national sports organizations, athletes and the population of various countries.32

A narrow circle of “sports aristocrats” chosen by this way, represented only by 15 members of the IOC Executive Board, can issue sports law with severe sanctions that are binding on sports organizations around the world. The most interesting thing is that the legal international nature of these norms is such that they are higher in legal force, for example, the norms of all laws, codes and other legal acts of national states, adopted by legitimate authorities, democratically elected by their own peoples. In our opinion, this is not in line with the principles of democratic governance. “Essentially, at Lex Sportiva, all power and decision-making power is monopolized in the hands of a small group of people serving on multiple executive committees. And such people, committees are not subject to general elections, their activities are not subject to monitoring by civil society. At the same time, such people acquire enormous public power and management of large financial resources. The concept of a small but very influential organization does not fit into the modern concept of democratic governance. "33

The question arises, how can one fight against the actions of these not entirely legitimate and representative governmental and non-governmental international sports organizations, which exceed their powers and make politicized and discriminatory decisions? For example, if the IOC suddenly prohibits the participation of any countries in the Olympic Games or does not allow athletes to use the state symbols of their country, as was the case with the Russian Federation. Unfortunately, the choice of legal remedies is limited. For example, in accordance with Articles 60 and 61 of the Olympic Charter, decisions of the International Olympic Committee are final, and any challenge to them can be resolved exclusively by the IOC Executive Board and only in some cases by the Court of Arbitration for Sport in Lausanne (Switzerland). Suppose we were able to find such suddenly "some cases" and applied to the Court of Arbitration for Sport in Lausanne (Switzerland) in order to challenge any illegal IOC. What will be our chances of a successful outcome of the case? It is not very large, because the IOC is the main founder and sponsor of this court. In particular, in accordance with the Paris agreement of June 22, 1994, the founders and financial sponsors of this court are the International Olympic Committee, as well as the IOC-dependent Winter Sports Association, the Summer Sports Association and the Association of National Olympic Committees.

At the same time, in accordance with the Code of International Sports Arbitration, it is practically impossible to challenge the decision of the Court of Arbitration for Sport in Lausanne. Because the award is final and binding and is not subject to any appeal (Article R46). 34 In theory, an appeal is only possible in the Swiss Federal Court, since the actions of this court are subject to the rule "Lex Arbitrii" ("Application of the law of the place where the court took place" lat.). In particular, in accordance with Article 191 of the Swiss Federal Law on Private International Law, the only instance where the decision of the International Court of Arbitration can be set aside is the Swiss Federal Court. However, even consideration in the Swiss Federal Court does not guarantee a solution to the problem, since this court is focused mainly on resolving procedural and constitutional disputes. In general, this situation seems to us very controversial when decisions of an international court are appealed to a national court. In our opinion, this violates the principle of the priority of international law over national law and cannot be considered normal in international legal relations. We also think it is paradoxical that Swiss lawyers consider Swiss courts as priority in relation to courts of other states, and Swiss law as a kind of international law.35

I would also like to focus on one more problem. Today we are witnessing a situation where national law begins to prevail over international law in the modern world. This is a very dangerous tendency that leads to the destruction of international relations and the established world order. This also applies to international sports law. Very often, some countries ignore the norms of international sports law and claim that their national norms and practices in the field of sports take priority over the norms of international sports law. For example, in the United States and Canada, many active sports leagues do not recognize the World Anti-Doping Code and they are governed solely by their corporate anti-doping rules. These include the U.S. National Football League, Major League Soccer, Major League Baseball, National Basketball Association, National Hockey League. These most popular professional sports leagues have approximately 150 teams based in cities across the United States and Canada (only the National Football League is limited to the United States) and all of these teams are outside the jurisdiction of WADA and WADA-certified laboratories. This takes place despite the fact that in accordance with the international convention against doping in sport signed by the United States in 2005, this country is obliged to recognize the principles of the World Anti-Doping Code (Article 3).36 It should be admitted that the United States tried to change this abnormal situation from the point of view of international law at the legislative level. Senator McCain (died August 25, 2018) introduced the Clean Sports Act of 2005, requiring all of these leagues to fall under the jurisdiction of WADA (Sections 3 and 4). However, even McCain was unable to withstand opposition from athletic unions and threats of lawsuits from a human rights organization such as the American Civil Liberties Union (ACLU). And everyone soon forgot about this bill.37

Some countries also believe that their unilateral legal acts may be a means of protecting international sports organizations located on their territory from claims of foreign sports federations and athletes. It is not entirely clear, for example, the decision of the National Assembly of the province of Quebec, which independently, without discussion with other international partners, made a decision to protect WADA from third-party claims. And at present, no representative of a foreign state can file a lawsuit against this organization on the territory of this country in order to protect their rights. Canada has made WADA out of reach of any criticism of foreign athletes, even if that criticism, in violation of criminal law and the Universal Declaration of Human Rights.38

The actions of the IOC to deprive Russian athletes of the national flag and anthem gave rise to a huge number of claims by Russian athletes to the Court of Arbitration for Sport in Lausanne. Some of the demands of Russian athletes were found to be justified. For example, on February 1, 2018, the Court of Arbitration for Sport in Lausanne upheld the appeal of 28 Russian athletes and lifted the IOC and WADA sanctions against these Russian athletes. However, most of the claims were dismissed by this court. As a result, Russian athletes began to apply to Russian courts. Russian courts began to make positive decisions on their claims. In this regard, the civil case of Zubkov is indicative. For example, as a result of Professor McLaren's investigation on November 24, 2017, the President of the Bobsleigh and Skeleton Federation of Russia, Olympic, World and European champion Zubkov was stripped of two gold medals at the 2014 Olympic Games in Sochi and suspended from participation in the Olympic Games for life. Subsequently, on February 1, 2018, by the decision of the Court of Arbitration for Sport, the lifelong suspension from sports was canceled. However, Zubkov did not agree with a softer decision, and filed a claim with the Moscow City Court. Zubkov's defense argued their claim by the lack of evidence of the athlete's guilt. As a result, the Moscow City Court on November 21, 2018 refused to recognize the CAS decision on the territory of Russia (case 3m-0459/2018). The Russian Olympic Committee challenged this decision, since this decision could have implications for the relationship with the IOC. However, on January 11, 2019, the appeal court ruled to dismiss the complaint of the Russian Olympic Committee. This means that the decision of the Court of Arbitration for Sport in Lausanne in the Zubkov case has not been recognized by the Russian judiciary. This also means that judgments of the Court of Arbitration for Sport in Lausanne may not be recognized and ignored by Russia.39 This decision was made by the Moscow City Court despite Russia's recognition of Article 1 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In accordance with this Convention, states are obliged to comply with arbitral awards of other countries, even if they "are not considered domestic awards in the state where their recognition and enforcement is sought"40

We have to admit that the general concept of the inviolability and supremacy of the norms of international law has recently been shaken in the face of the aggravated international situation. These conceptual changes are taking place in many countries, including the Russian Federation. In particular, on July 14, 2015, the Constitutional Court of the Russian Federation adopted Resolution No. 21-P on checking the constitutionality of international agreements in the field of human rights and fundamental freedoms. This ruling, in particular, allows courts and state bodies to suspend decisions of international courts and apply to the Constitutional Court with requests to verify their compliance with the Russian Constitution. In turn, the Constitutional Court of Russia may decide on the inconsistency of such decisions, in particular, decisions of the European Court of Human Rights.41 It was also announced that the norms of the Constitution of the Russian Federation are higher than the norms of international law. In particular, in accordance with Federal Law No. 1-FKZ of March 14, 2020, the norms of international law and international treaties, as well as decisions of international bodies, can operate on the territory of Russia only if they do not contradict the Constitution of Russia. This means that Russia has established the priority of national law over international law in the main legal spheres of the Russian state. The Constitutional Court of Russia in accordance with part two of Article 79 and clause 5.1. "B" of Article 125 of the Constitution of Russia can always cancel any decision of the International Olympic Committee, the World Anti-Doping Agency and the Court of Arbitration for Sport in Lausanne, if these decisions violate the rights and freedoms of a citizen of Russia and contradict the Constitution of the Russian Federation.42

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