Court of Arbitration for Sport Hearing in the matter of Mikhaylo Zubkov v Federation Internationale de Natation (FINA)
Hearing date: 26th September, 2007, Lausanne, Switzerland
Decision date: 21st December, 2007

1. Mikhaylo Zubkov has successfully appealed against a six year ban imposed on him for bringing the sport into disrepute. A Panel of three Judges of the Court of Arbitration for Sport (CAS) ruled that the ban was too severe and should be overturned. In place of the six year ban, the Panel substituted an eight month suspension. This means that Mr Zubkov can commence coaching again in late December in the lead up to the Beijing Olympics. He is able to return to the sport of swimming he loves so much as a former Olympic athlete himself, and with strong family connections to the sport. Both his wife and daughter have competed at the Olympic Games in swimming.

2. Mr Zubkov expressed his relief at having his name cleared. He has been the subject of considerable media attention in his home country, the Ukraine, since returning from the World Swimming Championships in Melbourne in March this year. This has placed stress on both he and his family, and has caused his business to suffer. His daughter has had to find another swim coach. ‘Mr Zubkov wanted to stress’, Mr Horvath stated, that ‘whilst he accepts that his poolside argument with his daughter was ill considered, his relationship with her has never been stronger. He apologized for and regretted his conduct. He felt that he should have separated his coaching role, which happens pooliside, from his parental role. Mr Zubkov has acknowledged,’ Horvath said, ‘that all parents have disagreements with their children, but that he should have discussed the matter in a more appropriate private setting’.

3. ‘We argued successfully that channel nine (broadcasters of the footage) and FINA themselves had some responsibility in the footage being telecast’, Paul Horvath said after the hearing. ‘To say that it was only Mr Zubkov’s actions that led to the sport being placed in an unsavoury light is inaccurate’.

4. Mr Horvath also stated: ‘The court agreed with our argument that it was grossly disproportionate to give a drug cheat who intentionally uses steroids a two year ban, and a father who argues robustly with his daughter six years. The court ruling clears Mr Zubkov of assaulting his daughter’.

5. The Court’s ruling is a landmark ruling in sending a message to sports disciplinary bodies, such as the FINA disciplinary panel which imposed the six year ban in this case. There are basic legal principles that must be followed, even in domestic tribunals who 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 have to be balanced’.

6. The Court was not satisfied that Mr Zubkov had actually brought the sport into disrepute, as there was no evidence before it that the sport had actually rather than potentially been brought into disrepute.

7. The Court of Arbitration for Sport Panel of three is the highest international sports court. There are no further appeals from this decision, unless FINA wanted to bring a challenge in the Swiss domestic courts arguing some error of law in the panel’s procedure. An appeal is unlikely.

8. Mr Zubkov said: ‘I wish to thank my large legal team who has provided the highest level of commitment and service. They believed in me and in getting a fair hearing for me. I also wish to thank the Australian Ukranian Federation for its support’.

9. Solicitor Paul Horvath and barrister Paul Hayes flew from Melbourne to Switzerland to represent Mr Zubkov at the hearing.

Paul Horvath may be contacted on 0411-049-590 and is available for interview on 24th December, 2007. You may obtain a copy of the decision also by contacting Paul or by emailing your request to paul@sportslawyer.com.au.

Click here to download the appeal decision pdf.

SPORTS LAW SPECIALIST SLAMS AFL DRUGS CODE

A legal expert has heavily criticised the AFL’s Drugs Code in a legal journal paper published today. This legal criticism is a further embarrassment to the Government and the World Anti Dopng Authority (WADA), which has come under heavy criticism from many quarters since all professional sports in Australia were forced to adopt the WADA Code in 2005.

Paul Horvath, a Sports Law specialist, concludes that:

• Suspending an AFL player for taking so-called recreational drugs probably constitutes unlawful restraint of trade, and is likely to come under legal challenge in the near future. “My view is that, if challenged in Court,” says Horvath, “it is likely that the AFL could find its Anti Doping Code constitutes unlawful restraint of a player’s trade. Of course, this has yet to be tested – in fact, I’m surprised it hasn’t been already”

• The AFL’s Anti Doping Policy is “out of touch” with community standards. “Rather than naming and shaming the individual,” Horvath points out, “community trends are in fact in favour of rehabilitation and counselling, so that the individual gets help with their drug problem. This should happen confidentially, whenever possible”

• The World Anti Doping Agency Code, which the AFL has adopted, is “legally questionable in relation to its application to illicit or recreational drug use”.

Background

In 2005, after considerable pressure from the Federal Government, the Australian Football League (AFL) agreed to adopt the World Anti Doping Agency (WADA) Code. This came into effect in the 2006 AFL season.

There was substantial opposition to the new WADA Code from both the AFL and the AFL Players’ Association. One reason was that the AFL already had an effective Anti Doping Code of its own in place. A second was that the AFL had implemented at the beginning of 2005 its own Illicit Drug (Policy (IDP).

Given that the AFL already had its own framework for dealing with drug infringements, a framework based on long and careful research, the need for the WADA Code was questionable. In some respects, the AFL’s own IDP was tougher than the WADA Code: it operates 44 weeks per year. The WADA Code is designed only for ‘in-competition’ infringements.

The article, entitled “Battle of the Codes” is published today in the Law Institute Journal, a prestigious legal reference journal.

Paul Horvath is a Melbourne-based Sports Law expert. He was solicitor for athletes and officials at each of the 2007 World Swimming Championships, and the 2006 Commonwealth Games, both events held in Melbourne. He is solicitor to Richmond Football Club on AFL Tribunal matters, and National Co-ordinator of the AFL Players’ Association 24 Hour legal advice service. Paul is in his final year of a Master of Laws specializing in sports law.

A copy of the full article can be obtained in the August 2007 edition of the Victorian Law Institute Journal.

He can be contacted as follows:

24 hour mobile: 0411 049 590
Email: paul@sportslawyer.com.au
PA: Donna Arora - 03 9642 0435