#sports #disputeresolution #disciplinary #integrity
Wednesday, 23 december 2020 - On 1 January 2021 some new provisions of the Flemish Decree of 10 June 2016 regarding the recognition and subsidising of the organised sports sector1 and of its Implementing Decree2 will come into force. For example, from 1 January 2021 sports federations must have an integrity policy and a focal point for integrity. Integrity policy means a policy containing measures that the sports federation must observe to preserve and promote individuals’ physical, mental and sexual integrity.3 The focal point for integrity has then to be defined as a person or people who create this focal point for cases of cross-border conduct where individuals’ physical, mental, or sexual integrity is damaged. The focal point for integrity includes the first reception and referral and will coordinate the internal procedures to promote the integrity of people. The focal point for integrity includes prevention and support and must avoid any form of cross-border behaviour.4 In addition, as from 1 January 2021, sports federations must have a disciplinary system specific to cross-border conduct by including a section on cross-border conduct in the disciplinary rules of the sports federation and by having or referring to a disciplinary body that can act as a protective and sanctioning body.5
“Integrity policy means a policy containing measures that the sports federation must observe in order to preserve and promote the physical, mental and sexual integrity of individuals.”
As part of the new regulations, the new Flemish Court of Sports (Vlaams Sporttribunaal (“VST”) has been established and will enter into force as from 1 January 2021.
On the one hand, the VST will replace the current Flemish Doping Tribunal (Vlaams Dopingtribunaal), which has existed since 2008, and, on the other hand, was founded to accommodate the need to create an overarching disciplinary organ regarding cross-border conduct. At first, the VST will then be responsible for disputes regarding the doping of elite athletes and supervisors, and for disputes regarding cross-border conduct. In the course of 2021, this competence will be further extended to doping among aa wide-range of athletes.
“The Flemish Court of Sports is founded in order to accommodate the need to create an overarching disciplinary organ regarding cross-border conduct.”
Under the new rules, each sports federation will then be able to establish its own disciplinary body for cross-border conduct, or to join the VST, which - in its own words - offers an easily accessible, qualitative, and procedural economic treatment of disciplinary complaints, while at the same time partially intervening in the costs of proceedings. The VST has currently 51 members, which together form the VST’s General Assembly. To become a VST member, you must, amongst other things, be a sports organisation with a legal entity and deliver your candidature request in writing to the VST’s Governing body, which must approve this candidature by a simple majority.6 The Governing Body is composed of at least five to a maximum of nine directors, of which at least four directors will be representatives of a sports federation recognised by Sport Vlaanderen (of whom one will be a representative of the Vlaamse Sportfederatie (VSF) and of whom a maximum of four can be elected by experts following a proposition by the VST’s Governing Body).7 Additionally, the VST is also composed of a General Secretariat and a Nomination committee, which is made up of at least three professors and/or magistrates who will be responsible for appointing the disciplinary judges and members of the investigative body. The judges will be split up into: a doping chamber, a chamber for cross-border conduct, and a chamber of appeal for cross-border conduct. The investigative body on doping will be externally treated by the National anti-doping organisation (NADO). The VST has founded an internal investigative body for cross-border conduct.
As far as doping cases are concerned, the existing operation remains in place, so this article does not go into this point any further. As far as the new aspect on cross-border conduct is concerned, the disciplinary complaint consists in principle of two different phases: (i) internal treatment of the complaint at the sports federation (ii) the disciplinary complaint at the VST, which consists of two to three steps: 1. Research through the investigative body – 2. Settlement on a case-by-case basis by the Disciplinary Chamber 3. Appeal procedure before the Appeal Chamber. Sports federations can choose to rely on the VST for both disciplinary proceedings (and investigations) at first instance and on appeal, or only on appeal.
As from 1 January 2021, disciplinary proceedings regarding cross-border conduct may therefore be brought before the VST. In that case, it must concern cross-border behaviour committed by a member or an appointed person (which means any person who, at the time of the alleged disciplinary offence, was obliged to comply with rules or regulations of the sports organisation; thus, this includes trainers, volunteers, or parents of members) of a sports organisation affiliated to the VST, according to whose disciplinary regulations the VST can be invoked. A definition of cross-border behaviour will be based on its inclusion in the disciplinary rules of the relevant sports organisation, which in classic cases will include violence, harassment, and sexual cross-border behaviour. The date of the events of cross-border conduct is not relevant as part of the receivability of the complaint. The complaint can be filed by and to the affiliated sports organisation of the VST as well as to other people (victims, witnesses, parents,) regardless of the membership of the concerned sport organisation, subject to compliance with the admissibility conditions set out in the disciplinary rules of that sports organisation. In the absence of such conditions, there is no problem filing a complaint with the VST. If these conditions are met, then they will, in principle, have to be complied with, except in exceptional cases. Complaints can be submitted by means of a dedicated complaint form and the payment of a rolling fee of EUR 100.00.
“As from 1 January 2021, disciplinary proceedings regarding cross-border conduct may therefore be brought before the VST.”
Once the complaint has been filled, the Secretary-General will initially check whether it is manifestly inadmissible. If he is absent, the complaint will be sent to the investigation body, which is composed of two lead researchers who can carry out the necessary investigative acts (the questioning of the victim, the accused, the sports federation, witnesses, etc.). After conducting its research, the investigation body will write a report to the Secretary-General who will, in agreement with the president, compose a disciplinary chamber of one or 3 judges who will then decide at first instance on the disciplinary complaint. The investigation by the investigative body or the hearings before the disciplinary chamber takes place in principle at the Huis of Sport in Ghent but can of course also take place virtually. The disciplinary chamber’s decision is then subject to appeal to the disciplinary board of appeal.
It may also happen that the sports federation itself has already taken an administrative measure following an internal complaint about cross-border behaviour. In principle, in so far as this is provided for in the disciplinary rules of the sports federation concerned, the person concerned may then file an appeal against these measures with the VST.
It remains to be seen how the VST will work in practice, and whether many complainants will find their way to the VST. Therefore, it will be crucial that the various sports federations make their disciplinary regulations as close as possible to the VST’s disciplinary regulations and vice versa. Just as it might happen in every new legal body, lots of gaps will inevitably emerge from the regulations, gaps which will be cleared with time and experience. Currently, neither the legislation nor the VST’s rules of procedure provide a definition of cross-border conduct and the disciplinary rules of the sports federation concerned, which may differ from one sports federation to another, will have to be considered in each case. Nevertheless, the establishment of such a new sports tribunal can only be welcomed, so that the problem of cross-border behaviour in the world of sport can be given the necessary attention which, unfortunately, has been lacking in most cases up until now.
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1 Amended by the Flemish Decree of 13 July 2018 regarding the amendment of the Decree of 10 June 2016 on the recognition and subsidization of the organized sports sector and the Decree of 20 January 2012 on a renewed youth and children's rights policy.
2 Decree of the Flemish Government of 16 September 2016 laying down the general recognition and subsidy conditions for the organized sports sector, as amended by the Decree of the Flemish Government of 29 March 2019 amending the Decree of the Flemish Government of 16 September 2016 laying down the general recognition and subsidy conditions for the organized sports sector, as regards the integrity policy of the sports federations.
3 Art. 2, 5°/1 of the Flemish Decree of 10 June 2016.
4 Art. 2, 2°/1 of the Flemish Decree of 10 June 2016.
5 Art. 7/1, §1, 6° of the Flemish Government Decree of 16 September 2016.
6 Art.9 of the Statuses of the VST.
7 Art.19, §2 of the Statuses of the VST.
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