国际体育仲裁中当事人辩论权的类型化研究——以兴奋剂违规案件中的运动员为视角

Classification of Right to Debate in Court of Arbitration for Sport:from the Perspective of Athletes in Doping Cases

国际体育仲裁是世界各国运动员维护个人权利、追求竞赛公平的一条重要途径。根据当事人辩论活动的具体内容和辩论活动所要达到的最终目标,可以将辩论分为违规辩论、处罚辩论、程序辩论和证据辩论4种基本类型。国际体育仲裁因运动员兴奋剂违规而引起,所以当事人针对运动员是否构成兴奋剂违规而进行的辩论活动便属于违规辩论。处罚辩论是指,当事人对体育组织作出的处罚决定是否符合规定、是否适当等,展开的辩论活动。程序辩论,主要是以反兴奋剂组织的实际办案程序是否遵守相关规定为内容而进行的辩论活动。证据是CAS认定案件事实的基础,也是当事人进行辩论的根据,证据辩论意味着当事人围绕证据进行说理与论辩。在国际体育仲裁实践中,违规辩论和处罚辩论的效果不彰,并且二者存在逻辑冲突,实体辩论与程序辩论的地位有所偏颇,其他辩论更是依附于证据辩论。鉴于辩论权是仲裁当事人所享有的有助于促进仲裁公正的综合性的基本权利,所以在国际体育仲裁中应当切实保障当事人的辩论权,充分发挥律师和专家的作用,依据案件事实和相关规定确定对抗或者合作的辩论方向,构建起实体辩论和程序辩论并重之格局,以及根据证据积极地进行辩论。

Court of Arbitration for Sport is an important organization for athletes from all over the world to defend individual rights and pursue a fair game.According to contents and final goals of debate,it can be divided into four basic types:rules-violation debate,punishment debate,procedure debate and evidence debate.As athletes doping violations lead to CAS,the debate on whether the atWete constitutes a doping violation is a rules-violation debate.The punishment debate refers to the debate activities carried out by the parties on whether the punishment decision made by the sports organization is in conformity with the regulations and whether it is appropriate.The procedure debate is mainly based on the procedures that anti-doping organizations actually handling cases.The evidence is the basis for CAS to determine the facts of the case and the basis for the parties to debate.Evidence debate means that the parties are arguing around the evidence.In the practice of arbitraticm,the debater on rules-violation and pimishmeiit are often not effective.There a logical conflict between them.The substantive and procedural debates are biased and other debates are based on evidence debates.The right to debate is a comprehensive and basic right enjoyed by the parties that helps to promote the fairness of arbitration.Therefore,the party*s right to debate in the CAS should be effectively guaranteed.It is necessary to give full play to the role of lawyers and experts,determine the direction of the debate on the facts of the case and the law,establish a balanced pattern of substantive debates and procedural debates,and actively debate on the basis of evidence.