this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Justice delayed is justice denied. Or is it?

Feature Articles

Cite as: (2008) 82(7) LIJ, p. 48

The Ukrainian swimming coach filmed in an altercation with his daughter at the 2007 World Championships, and the ensuing disciplinary procedure, highlight the need for a global approach to proportionality in sports sanctions.

By Paul Horvath

On 27 March 2007, Mikhaylo Zubkov, a Ukrainian swimming coach participating in the World Swimming Championships (the Championships) in Melbourne, was filmed by remote camera engaging in an altercation with his daughter, Kateryna, a swimmer at the Championships. A 15-second extract of the footage was beamed around Australia and the world by Channel Nine and swimming’s world governing body, FINA.

In fact, the total footage of the father-daughter exchange lasted over five minutes and it paints a very different picture to the 15-seconds of footage that was shown in isolation. Victoria Police stated on Tuesday evening, 27 March, that they were looking into the incident. By Wednesday morning they had taken out an intervention order against Mr Zubkov, preventing him from being within 100 metres of his daughter and ordering that he appear at the Melbourne Magistrates’ Court on Thursday, 28 March.

While preparing to defend the intervention order application on the afternoon of 28 March, Mr Zubkov received notice at about 6pm that he was required to attend a hearing of the FINA Disciplinary Panel (the Panel) at 10pm that night. He was told that the matter was serious and that he should be prepared to answer allegations, and was warned that “his future [was] at stake”.

A legal team was swiftly assembled, which included Tony Nolan SC, barrister Will Alstergren, Mark Bormanis and the author. Because of time constraints, a conference with the client took place in chambers at 7.30pm.

Initially, when attending the hearing that night, Mr Nolan stated that Mr Zubkov had not received any notice of the charge or charges he was being required to respond to. The Panel of three then stated the charge orally, referring to offences set out in the FINA handbook. After some persuasion, the Panel agreed to provide in writing details of the two precise charges by the next day.

Nevertheless, Mr Zubkov was then immediately requested to respond to the footage contained in a video of the full five minutes of his altercation with his daughter. Through counsel he declined to comment, as he was not in a position to respond fully without knowledge of the charge and its particulars. Further, as there was an intervention order against him, Mr Zubkov had been unable to speak with his daughter in order to prepare for the hearing, nor was he able to request her to attend to give her account of the incident.

One of the difficulties was that any statements as to the good character of Mr Zubkov had to be obtained from the Ukraine, which had not been possible before the initial hearing because of the time differences, and would also have been time-consuming. Another difficulty was that, as Mr Zubkov was subject to both an intervention order and a police investigation, he was unable to comment on the incident until at least the hearing of the intervention order took place on 29 March.

Somewhat reluctantly, the Panel agreed to allow until 5pm on Friday, 30 March for the filing of written statements and affidavits on behalf of Mr Zubkov, after which time it would announce its decision. Mr Zubkov was then placed on interim suspension from FINA and the hearing was ended.

The next day Mr Zubkov received written notice of the two charges he was facing, namely that he:

  • brought the sport of swimming into disrepute in contravention of the FINA Code of Conduct; and
  • committed an act of misbehaviour in breach of the FINA Code of Conduct.

On behalf of Mr Zubkov, a further hearing was sought for 30 March in order to make oral representations and, among other things, have Ms Zubkov give her account of the incident or answer any questions the Panel might have had for her. After a written request, the Panel again reluctantly agreed to the further hearing. A hearing time was set for 9.30pm on Friday, 30 March.

After making a number of written submissions, both factual and legal, and after obtaining a number of character reference statements from the Ukraine and having them translated, Mr Zubkov came before the Panel again on the Friday night. This time he was joined by his daughter. The appearance of Ms Zubkov was possible because on 29 March the Melbourne Magistrates’ Court had dismissed the intervention order application brought by the police on behalf of Ms Zubkov.

The hearing proceeded for approximately an hour, with Ms Zubkov giving evidence. The Panel then deliberated, and at about 12 midnight the Panel chair telephoned the author to advise that Mr Zubkov was expelled from FINA for life, with a recommendation that he could be readmitted after six years.

The appeal and appeal arguments
Mr Zubkov instructed the author to lodge an appeal to the Court of Arbitration for Sport (CAS) in Switzerland on his behalf. This was the appropriate venue for an appeal, as both the appellant and the respondent were domiciled in Europe, namely the Ukraine and Lausanne in Switzerland, respectively.

Many legal observers would think that a number of Mr Zubkov’s administrative law rights were compromised or denied by the Panel at first instance. Among other things, the Brigginshaw test dictates that the more serious the offence (and by inference the more severe the penalty), the higher the standard of proof needs to be in relation to the facts in dispute.1 Further, the Panel did not allow sufficient time to properly prepare the case.

As for the penalty, if the ban is viewed as a six-year ban, it was an excessive and disproportionate response to Mr Zubkov’s behaviour. It was argued in the appeal brief that a person found guilty of one of the most serious sporting offences – doping using steroids – is usually subject to a two-year ban for a first offence.2 Therefore, to categorise Mr Zubkov’s behaviour as three times more serious and heinous than doping was in our view patently incorrect and unjust.

The three main arguments on appeal were:

  • there was no evidence that Mr Zubkov’s conduct actually, as opposed to potentially, brought the sport of swimming into disrepute (no evidence had been put forward to show that the incident had adversely affected the promotion and development of swimming and other FINA sports throughout the world; the evidence suggested Mr Zubkov had brought only himself into disrepute);
  • Channel Nine and FINA bore some responsibility for choosing to air the footage which was shown internationally and for commercial gain; and
  • the original penalty was disproportionate to the level of misbehaviour alleged against Mr Zubkov.

Mr Zubkov’s appeal proceeded before an arbitration panel of three at the Court of Arbitration for Sport in Lausanne, Switzerland on 26 September 2007. Barrister Paul Hayes argued the case and was instructed by the author, both of whom flew from Melbourne to Switzerland for the hearing. Curiously, FINA’s instructor at the appeal was one of the original panel members. The decision was handed down on 21 December 2007.3

The appeal findings

The appeal panel found that Mr Zubkov did not in fact bring the sport of swimming into disrepute, and it concluded that the appellant had not hit his daughter (at [55]).

It nevertheless found him guilty of “misbehaviour” and conduct unbecoming an accredited team official in breach of the FINA Code of Conduct (at [56]).

The appeal panel found the lifetime expulsion originally imposed on Mr Zubkov (with a recommendation that he be readmitted to FINA after six years) to be harsh, severe and disproportionate. In its view, suspension rather than expulsion was found to be more appropriate. It said:

“Given the special nature and unusual circumstances of the Appellant’s conduct, we find that a suspension for a period of eight (8) months ... expiring 27th December, 2007, constitutes an appropriate and proportionate sanction for the conduct (at [68]).”

In many CAS hearings, a party will be awarded costs if successful in an appeal or at a hearing. However, despite the significant reduction in the penalty in this case, which represented a clear win to the appellant and findings, the CAS appeal panel declined to award costs (at [69]-[74]). This may be reflective of a more conservative approach in Europe than in the Australian-based CAS panels.4

Mr Zubkov’s reaction to the appeal result

With the Beijing Olympics on later this year, Mr Zubkov, himself an Olympic swimmer, has now resumed his coaching duties. He has subsequently stated that he “apologised for and regretted his conduct” which he regarded as “ill-considered”. He further said that he was “relieved that the matter was now over and that his name had been cleared”.

However, a lifetime ban was never accepted by him or his large legal team as an appropriate or fair penalty. Mr Zubkov’s family and business suffered as a result of the bad publicity the incident brought him.

What can be learned from the case?

1. “Bringing the sport into disrepute”

Bringing the sport into disrepute is now an offence under many sporting codes. This offence can include a broad range of misconduct often not directly linked to the sport itself, such as illicit drug use by sportspeople outside of competition time. This distance between the misconduct in question and the sport or sporting event poses a difficulty for sports tribunals when determining whether the conduct has in fact brought the sport into disrepute. Two important factors to note from this case are that there must be “actual” and not “potential” disrepute and that the conduct must bring the specific sport, for example swimming, into disrepute, rather than individuals involved in the sport: “Public opinion of the sport must be diminished as a result of the conduct in question” (at [60]).

It is noteworthy that the FINA Constitution in this case provided that “any member of FINA may be sanctioned for bringing the sport into disrepute”.5 To avoid the difficulty that FINA faced in this case, the sporting (or other) body should sanction conduct which “has the potential to bring the sport into disrepute”.

2. Principle of proportionality

The CAS ruling is important because it sends a message to sports disciplinary bodies, such as the FINA disciplinary Panel that imposed the six-year ban in this case. There are basic legal principles that must be followed, even in domestic tribunals that are usually not bound by the strict letter of the law. Imposing tough penalties because the world media is watching and is aware of the situation is not delivering justice or fairness. Penalties and hearing processes have to be balanced and fair to the person charged. The appeal panel specifically acknowledged that the principle of proportionality – that the punishment must be proportionate to the offence – applies to sports tribunals.6

In his decision in Minister for Resources v Dover Fisheries Pty Ltd,7 Gummow J made this contribution to the law: “The concept of proportionality has its origins in European, specifically German, constitutional law”.8 Decisions such as Handyside v United Kingdom9 and The Sunday Times v United Kingdom10 confirm that the concept “balanc[es] competing principles and ensur[es] that measures adopted by governments are reasonably proportionate and harmonious to achieving the legitimate purpose for which such measures are introduced”. The fundamental principle of proportionality is that the severity of the penalty is proportionate or equal to the offence committed.

Sports tribunals increasingly make decisions that affect the livelihood, or at least the financial affairs, of people involved in sports by imposing sanctions. Sports tribunals must uphold the principle of proportionality to ensure that sanctions are imposed for a legitimate purpose and that they do not unnecessarily restrict an individual’s rights.11 “Proportionality is not only the paramount condition for the validity of restrictions of fundamental rights, it is also the general principle of law governing the imposition of sanctions of any disciplinary body”.12 The principle of proportionality also ensures that a system of sanctions remains consistent and just (at [66]).

The requirement of proportionality in relation to the imposition of sporting sanctions has been emphasised repeatedly in CAS jurisprudence before this decision. The CAS appeal panel in Squizzato v FINA cited McLain Ward v FEI:

“The Panel notes that it is a widely accepted general principle of sports law that the severity of the penalty must be in proportion with the seriousness of the infringements. The CAS has evidenced the existence and the importance of the principle of proportionality on several occasions”.13 This case re-emphasises its importance.

Also, in Puerta v International TennisFederation,14the panel emphasised the need for proportionality to apply in international law in order to engender and ensure compliance with and respect for disciplinary codes: “Every system of law seeks to apply sanctions, whether for breach of the criminal law or for breach of contractual or other obligations, which are just and proportionate. Of course in national law the notion of what is a just and proportionate sanction may vary from state to state, but the World Anti Doping Code (WADC) is, in a sense, a species of international law, in that it must be applied in every country, and, therefore, must produce a just and proportionate sanction in every country. It would be a disaster for the WADC, and for the fight against doping in sport, if the WADC were to be struck down in any jurisdiction as not producing a just and proportionate sanction”.15

Sporting bodies should respect the principle of proportionality when drafting codes or policies by setting out clear objectives and a considered/fair penalty system. Sports tribunals can uphold the principle of proportionality by taking into consideration the individual’s rights, the objectives of the code and/or disciplinary tribunal, and the public interest when determining an appropriate sanction. This will limit the number of appeals, which in turn will establish a more reliable and highly regarded disciplinary system. “Rule makers and rule appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable.”16

The doctrine of restraint of trade also has application to a case such as this. While it was not argued in this case, it was open to contend that the ban restrained Mr Zubkov’s trade as a coach. Under the doctrine of restraint of trade, a three-step test is used to determine if the restraint is reasonable, and by extension, proportionate.17 For the restriction to be enforcable it must satisfy the following three sub-sections:

  • there must be a legitimate interest worthy of protection;
  • the restraint must be reasonable in relation to the restrained party; and
  • the restraint must not be injurious to the public interest.18

It is submitted that on this analysis too, the ban would have been unenforceable. Mr Zubkov would have had to show that he carried on a “trade” as a swimming coach, and that the lifetime ban interfered with his trade. If he earned the majority of his income from coaching swimming, the ban would restrain his trade.

There are a number of Australian sporting authorities striking down cases on the basis of restraints of trade.19 There is also the German decision in the case of the 1991 world sprint champion, Katrin Krabbe, in which the Appeal Court of Munich upheld the principle of proportionality and the doctrine of restraint of trade to strike down a three-year suspension imposed by the International Amateur Athletics Federation (IAAF) for alleged use of banned substances. The court ruled that a one-year ban was more appropriate, and the maximum that should be imposed for a first offence was two years.20 Ms Krabbe was also awarded damages.

Conclusion

While it is said that “justice delayed is justice denied”, it would appear that when a hearing proceeds too quickly, without proper consideration of the issues by a tribunal, and without a calm, objective analysis of a situation, a fair outcome may be very difficult – if not impossible – to achieve.

If sporting and other disciplinary tribunals ignore the principle of proportionality, the result will be inconsistency in the penalties given and much confusion in this area of administrative law.

PAUL HORVATH is the principal of Paul Horvath Solicitors, practising predominantly in sports law, and is the convenor of the recently established LIV Sports Law Group. He was solicitor to athletes and officials at last year’s FINA World Swimming Championships.

The author thanks Penelope Lording, a final year law student, for her assistance with the article and acknowledges that the detailed written submissions prepared for the CAS hearing were prepared by barrister Paul Hayes.

The numbers in square brackets in the text refer to the paragraph numbers in the decision.

1. Brigginshaw v Brigginshaw (1938) 60 CLR 336.

2. World Anti Doping Code, cl 10.2.

3. Mikhaylo Zubkov v Federation Internationale de Natation (FINA), CAS 2007/A/1291. A copy of the full CAS panel decision dated 21 December 2007 can be obtained at http://www.sportslawyer.com.au.

4. In the recent case of Sevdalin Marinov v Australian Sports Anti Doping Authority, CAS 2007/A/1311 (date of award, 20 December 2007), an Australian-based CAS panel awarded a 70 per cent contribution by the respondent to the legal costs of the appellant in those proceedings, which amounted to approximately $59,000.00 plus court expenses. See also R Redman, “A closer look at costs in the Court of Arbitration for Sport, Australian and New Zealand Sports Law Association (ANZSLA)” (2005) 62 The Commentator 1.

5. FINA Code of Conduct at cl 12.1.3.

6. See paras 65-68 of the decision (note 3 above). For a recent example of a CAS decision enunciating the principle of proportionality, see Puerta v International Tennis Federation, CAS 2006/A/1025.

7. (1993) 116 ALR 54, at 64.

8. Justice Michael Kirby, “The Australian debt to the European Court of Human Rights”: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_apr06.pdf, p12.

9. (1976) 1 EHHR 737.

10. (1979) 2 EHHR 245.

11. “Proportionality is applied to control the discretion exercised by domestic authorities and to limit the interference with, or the restriction of individual rights of citizens”, from Mads Andenas and Junko Ueda, “Proportionality in EU environmental law”: http://www.soc.nii.ac.jp/eusajapan/download/eusa_ap/paper_MadsAndenas_JunkoUeda.pdf (accessed 20 May 2008).

12. Professor Gabrielle Kaufmann-Kohler, Professor Giorgio Malinvarni and Antonio Rigozzi, “Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law” (2003) World Anti-Doping Agency website: see http://www.wada-ama.org/rtecontent/document/kaufmann-kohler-full.pdf, para 83 (accessed 13 February 2008).

13. Squizzato v FINA, CAS 2005/A/830, at paras 10.16 to 10.26, especially 10.20.

14. CAS 2006/A/1025, award of 12 July 2006.

15. Note 14 above, at para 11.7.25.

16. USA Shooting and Quigley v International Shooting Union (UIT), CAS 94/129, award of May 1995.

17. Kaufmann-Kohler, Malinvarni and Rigozzi, note 12 above, at para 82.

18. Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 565.

19. Hall v Victorian Football League (1982) VR 64; Foschini v Victorian Football League (unreported, 15 April 1983, Victorian Supreme Court, Crockett J); and Buckly v Tutty (1971) 125 CLR 353.

20. This decision on 28 March 1996, and a 2001 decision in the same matter relating to damages, led to the reduction of four-year minimum bans to two years for first offences involving steroids under IAAF rules.

Comments




Leave message



 
 Security code
 
LIV Social
Footer