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Girdwoyn Piotr,
Prof., Phd doctor Institute of Criminal law Faculty of Law and Administration University of Warsaw, Warsaw, Poland Baltabayev Erzhan phd student Faculty of Law and Administration University of Warsaw, Warsaw, Poland DOI: 10.24412/2520-6990-2021-794-43-47 THEORETICAL AND LEGAL ANALYSIS OF THE CONCEPT OF SPORTS LAW
Abstract.
As a result of the commercialization and politicization of public relations taking shape in sports, athletes were, in fact, one of the least protected members of society1. The lack of a systematic approach to the regulation ofprocedures for holding athletes accountable, the procedural regulation ofthe procedure for appealing decisions of sports organizations, the uncertainty and inconsistency of legal norms deprive athletes of the opportunity to protect their rights and restore their reputation. The relevance of the topic is due to problems existing in the field of legal regulation of the procedure for resolving disputes arising in sports.
The purpose of this research paper was to conduct a functional comparative legal analysis of the provisions of domestic and foreign legislation, as well as the requirements of regulatory documents of (international) sports organizations, with the aim of identifying legal norms and structures that provide effective resolution of disputes in the field of sports.
The importance of the research is manifested in the need to eliminate legal uncertainty on the following issues that are fundamental to this issue:
- regarding the legal nature, signs and functions of the jurisdictional bodies of sports organizations in the field of resolving sports disputes and other bodies that resolve sports disputes;
- regarding the possibility of a unilateral choice ofprocedure for resolving all types of sports conflicts;
- in relation to methods of appealing against decisions of sports arbitration courts, considering the constitutional right to judicial protection.
Keywords: theoretical, legal, analysis, concept, sports, law
Introduction
Sports law is a relatively new area of research and rule-making for jurisprudence. Until now, there is no single point of view on what this, in fact, is - "sports law". By the way, among scholars and specialists there is not even a terminological unity in the matter under consideration. Therefore, this aspect will be determined first. Among the most frequently used terms can be called directly "sports law", as well as "sports law", "sports law", "sports law", "legislation on physical education and sports." The terminological and substantive difference between the concepts of "sports" and "physical-sports", related to the distinction between physical culture and sports, we will pay attention to when we characterize the subject of sports law - thus, the terms "sports law" and "legislation remain the most common alternatives" about physical education and sports. " Let us dwell on them in more detail.
The phrase "sports law" is increasingly being used by both specialists and the general public. Appeal to it can be considered as a result of increasing the level of legal regulation of public relations in the field of sports, the growing attention of society and the state to sports in general. To date, it is this phrase that is perhaps the most common to refer, relatively speaking, to the "interface" between law and sports: this term is used by
the authors of numerous articles, monographs, textbooks we cite, and attempts are made to train lawyers specializing in sports law with a number of universities ", the annual International Scientific and Practical Conference" Sports Law: Prospects for Development "is held, in the framework of the Bar Association more than a year has been active in Issy in sports law. At the same time, this term has worldwide recognition: in the English version of "sports law", in the French-language "droit du sport", the German-language "sportrecht" and etc. It is also used in scientific and educational publications. There is the International Association of Sports Law (IASL), which holds annual congresses (the 2009 Congress in Warsaw became the 15th) and publishes the International Sports Law Review. Also used is the Latin concept of "lex sportiva", used to denote "a special legal phenomenon and at the same time a scientific discipline.
The concept of "legislation on physical education and sports" is legal. This term was introduced by the Federal Law of December 4, 2007 No. E29-FZ "On Physical Culture and Sport in the Federation" (hereinafter - the Federal Law "On Physical Culture and Sport in the Federation"), part 1 of article 4 of which determines the composition legislation on physical education and sports, which consists of the specified Federal Law, other federal laws and laws of the subjects of the
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Federation adopted in accordance with them. There is a narrow understanding of the legislation on physical culture and sports, which cannot be used to designate the entire array of norms and their sources, which regulates social relations in this area.
Thus, in our study, we use the term "sports law" as a concept that has become established in jurisprudence. Significantly more important, primarily from a scientific point of view, is the content of the concept of "sports law". His clarification is one of the main tasks of this research.
Although the term "sports law" is used very often these days, when one gets acquainted with the works of legal scholars devoted to sports law, one encounters a circumstance that is already described and not uncommon for domestic jurisprudence, when almost every researcher studying a particular group of norms is now seeks to proclaim her branch of law. In modern legal literature, the following points of view have been expressed on the problem under consideration.
Discussion
In the works of C. B. Alekseev, who has perhaps made the greatest contribution to the development of the doctrine of sports law in recent years, traces a kind of "evolution" of the concept we are considering. Referring to the system of law as a superstructure category related to the basis of social relations (i.e., in the mainstream of Soviet legal science, which distinguishes certain branches of law exclusively in view of the social, political significance of the relations regulated by them), as well as on the basis of practical expediency and convenience, the author, firstly, defines physical culture and sports legislation, which he sees as a complex branch of legislation, which has its own pedigree, going back to civil and administrative law woo. At the same time, sports legislation is proposed to be considered as a set of legal norms (and not their formal sources) governing physical education and sports and the relations adjacent to them.
Sport plays an important role in modern societies, including those in Europe. However, individual countries differ in terms of their citizens' participation in universally accessible sport. In some societies, the percentage of people who pursue different sports is high, while in other countries it is insignificant. What are the reasons behind such differences? What variables are crucial to accounting for these differences? How has Polish society changed in this regard? Theoretical and empirical analyses show that people in Poland are becoming increasingly active when it comes to sport. In terms of taking part in sport, Polish society is starting to catch up with other European societies. The decisive role in the process is played by: a) social factors (education and affluence), b) the ideals and values that dominate the local culture (physical appearance, kinetic pleasures, and positive emotions), and c) the efficiency and adequacy of the physical education system in schools (innovation, the use of cyberspace, and efforts aimed at addressing social needs). If these three areas of socialization - society, culture and physical education in schools - reach a high level of convergence and if fewer variables hinder the process than at present,
people in Poland will become as physically active as other societies in the West.
Due to its complex and multifaceted nature, sport escapes a clear and synthesizing interpretation. Sport is not a uniform domain of culture; instead, there are many variations of it. Sport plays many different roles the number of which is hard to estimate. For example, some people do sports just for fun and to entertain themselves. In such cases, instead of striving for the best possible performance, priority is to given hedonistic sensations, kinetic sensations, relaxation, the enjoyment of affirmative social interactions, the joy of spending one's free time in a pleasant way, and the opportunity to express oneself. Sport also functions as different games where the main focus is on attaining perfection in terms of physical shape, athletic skills, and ethical criteria. Finally, sport can be seen as a kind of labor aimed at accomplishing pragmatic results, material results in particular. When seen like that, sport comes across as a profession and, consequently, is Sport plays an important role in modern societies, including those in Europe. However, individual countries differ in terms of their citizens' participation in universally accessible sport. In some societies, the percentage of people who pursue different sports is high, while in other countries it is insignificant. What are the reasons behind such differences? What variables are crucial to accounting for these differences? How has Polish society changed in this regard?
Theoretical and empirical analyses show that people in Poland are becoming increasingly active when it comes to sport. In terms of taking part in sport, Polish society is starting to catch up with other European societies. The decisive role in the process is played by: a) social factors (education and affluence), b) the ideals and values that dominate the local culture (physical appearance, kinetic pleasures, and positive emotions), and c) the efficiency and adequacy of the physical education system in schools (innovation, the use of cyberspace, and efforts aimed at addressing social needs). If these three areas of socialization - society, culture and physical education in schools - reach a high level of convergence and if fewer variables hinder the process than at present, people in Poland will become as physically active as other societies in the West.
It becomes a product on the free market where it takes the form of a sporting event. This product is purchased by a vast group of consumers who are usually referred to as supporters. Each sport product has a certain market value that depends on demand (sports discipline, rank of a sporting event) (Krawczyk, 2002, pp. 112-114). As a result of this multifaceted nature of sport, different theoretical and axiological perspectives need to be adopted while analyzing sport. Sport is an interesting field of research for scholars who deal with life sciences, economic sciences, technical sciences, social sciences, as well as the humanities. For that reason, any attempt at developing a holistic concept of sport presents a number of theoretical and methodological problems because of the fragmented research perspectives offered by the above groups of sciences. In a bid to circumvent these problems, we shall focus on dis-
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cussing sport as a socio-cultural phenomenon manifested predominantly in existential and semiotic terms. This paper will primarily deal with universally accessible sport, also called "sport for all," recreational sport. Put more simply: active recreation.
As we analyze contemporary societies, we realize that the extent to which individuals in different societies are involved in sports varies greatly. In some societies, very few people take part in universally accessible sport, while in other societies, physical activity is fundamental to how people spend their free time. In some societies, active forms of physical culture hardly exist in people's lives, whereas for others, physical activity is part and parcel of popular lifestyles (Sicinski, 2002, pp. 137-140). The natural question is: What factors trigger discrepancies such as those described above? Or perhaps it is better to ask where different groups of such determinants are located in the world around us. Seeking answers to these questions, we come to the conclusion that the differences could stem from the following three aspects of the sociocultural environment: 1. The level of social development (affluence, living conditions, economic development, education, social capital, place of residence, legislation, the political and economic systems, and access to sports facilities); 2. The type of culture (system of values, dominant ideals, dominant models of behavior, cultural capital, social awareness, etc.); 3. The social system of the organization of sport, physical education in schools in particular (weekly number of physical education classes, the organization and style of the classes, and the extent to which the needs and expectations of pupils are met). The three aforementioned groups of factors have a key impact on sport-related social practice. Their social and cultural significance varies, which means their impact varies depending on how well a given culture, society, and physical education system are developed. With this classification in mind, let us try and discuss the Polish public's participation in popular sport, aiming to uncover the reasons behind this state of affairs. We shall use certain regularities which are distinctive to Poland and to those European societies which are better developed and have a longer and stronger tradition with regards to taking part in sport, looking after one's own health, and pursuing active forms of spending free time. Social determinants of universally accessible sport People in Poland are a modern society in the final development stage, gravitating towards becoming a post-modern society. That is to say, the Polish public meet criteria which are distinctive to communities of this kind, including mechanized production, growing demand for qualified employees, growing importance of science, declining significance of religion, extensive urbanization, prevalence of rational thinking, and so on. At the same time, societies like these are dominated by consumerism, hedonism, and information technology that pervades all areas of life. Employees in such societies migrate from the production sector to the services sector. Individuals and communities are also exposed to greater risks (Szczepanski, 1992). When seen this way, Poland has all the distinctive features of a Western society. And yet, Poland is still different: it once experienced a totalitarian system called socialism; that is, it
has gone down a road that no society in the West has ever had to go. For that reason, Poland doesn't have well-developed and well-established cultural models, including models of consuming physical culture. Furthermore, the level of Poland's social development is lower than that of Western societies (Bennett, Savage, & Silva, 2010). Irrespective of the aforementioned differences, the phenomena and processes that occur in Poland are conducive to changes in the consciousness and attitudes of individuals who comprise Polish society. That is because proven Western lifestyles and models of social resource management are penetrating Polish society.
The realization of the necessity to participate in sport is a result of better education, a higher affluence level in statistical terms (Statistical Yearbook of the Republic of Poland), and the prevalence of rational thinking. In turn, participation in sport as such is the result of pro-sport attitudes along with improved facilities and financial conditions that allow for sport-related services to be provided. One extremely important trend that has affected the Polish public's participation in universally accessible sport is that vast groups of blue-collar workers migrating to the white-collar sector. What has been emerging in the process is a new kind of society, described as a post-industrial, information, consumerist, or knowledge-based society (Giddens, 2006, pp. 394441). In a knowledge-based economy, the majority of people with jobs are not involved in producing and distributing material goods. Instead, they design, work out development strategies, and deal with the marketing, distribution, and provision of services. The result of this is that most of the public is white-collar workers and, quite naturally, they feel an urge to spend their spare time in an active form, which includes participation in sport. At the other extreme is the shrinking group of blue-collar workers who regard passive forms of relaxation, ones that do not require any physical effort whatsoever, as the best way of spending their free time. In other words, changes in the structure of employment stimulate interest and participation in sport (The Participation of Polish People in Sport and Physical Recreation in 2012). As a result of the social phenomena and processes listed above, a growing portion of the Polish public are becoming increasingly aware of the need to take part in sport. A greater number of people are also involved in sport-related social practice, as evidenced by the findings of empirical studies (The Participation of Polish People in Sport and Physical Recreation in 2012 and other surveys conducted with nonrepresenta-tive samples) as well as everyday observation of social life. One cannot remain oblivious to the great many of Poles who ride bicycles, roller-skate, jog in parks and other green areas, play football on local pitches, carry skiing and surfing equipment on the roofs of their cars, and so on. It is also evident that more and more people have been attending all kinds of picnics, festivals and other sporting and recreational events (CBOS 2008, 2010, 2012, 2013).
Good examples of this new situation are numerous running events that have been extremely popular with the public recently. The Warsaw Marathon had a record number of around 10,000 participants and a record
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number of viewers turned up to cheer for the contestants. None of this means, however, that participation in sport is commonplace in Poland. It definitely is not, nor does it live up to the expectations. Participation in sport is more universal in modern societies found in Europe and beyond. This is particularly true about countries such as Sweden, Norway, Finland, Denmark, Germany, France, the Netherlands, Belgium, and so on. That is because those countries are better developed and civilized, or putting it more precisely, people in those countries are more affluent, better educated, and more deeply aware of the need to take part in sport activities. Social life is also better organized in those countries, and the population has better access to sport facilities (Dimitrov, Helmenstein, Kleissner, Moser, & Schindler, 2006). Cultural determinants of universally accessible sport Certain elements of culture that prevail in a given society are crucial to accounting for trends that govern participation in universally accessible sport.
Conclusion
The study showed that to date in legal system, as well as in the legal systems of the world, a complex multifaceted phenomenon called sports law has formed. Given the uniqueness of sport, its political and legal autonomy, its ever-increasing social and political significance, the intersection of legal and sports spheres is also very specific. Perhaps that is why, despite the recent frequent appeal of scientists to sports and legal issues, a single approach to the basic concept - sports law - remains undeveloped. In this work, sports law has been analyzed as an integral part of the legal system, which does not deny its other forms and manifestations.
The sports law was examined by the author at the national level using the views formed in domestic jurisprudence over decades on the structural composition of the legal system and the legal system. The criterion for dividing the system of law into constituent elements -first of all, branches and sub-sectors of law, as well as legal institutions - the subject of legal regulation is universally recognized. In addition, it is believed that certain branches of law correspond to special methods of legal regulation that reflect the specifics of the applied methods of legal influence and legal means, as well as emerging industry regimes. At the same time, it was found that the idea of the structural composition of the legislative system is less uniform and developed, often being a kind of projection on the legislative system of the characteristics of the legal system.
The ongoing changes in the public life of our country, affecting the legal sphere, make us take a fresh look at the theoretical issues under consideration. To overcome violations of the systematic legislation, low quality bills, numerous legal conflicts affecting the low level of implementation of laws, which is the weakest part of the legal sphere of our society, it is necessary to prepare scientific concepts of industry legislation. This accounts for the once again increasing attention to the classic structural problems of legal theory. In particular, regular attempts are made to justify the existence of certain legal entities as special, "complex" branches of law that do not meet the criteria of the "subject-method" (or for which compliance with these criteria is
indisputable), in contrast to the traditionally distinguished, "main" branches of law. At the same time, apparently, due to the debatability of the problems of correlation of law and legislation, the composition of the latter, one can observe a confusion of scientific ideas about the structural composition of the legal system and the legal system, as well as the concepts and classifications used to study them and describe them.
The author saw the prospect of resolving the problems described above in an appeal to the structural composition of the legal system, different from the structural composition of the legal system, characterized by multilayered and including, among others, complex entities, including complex branches of legislation. In this case, legislation is understood in a broad sense - as a set of regulatory legal acts, including by-laws. It seems that only the allocation of complex branches of legislation and the scientific development of the corresponding concept allows us to characterize a number of new phenomena, both in the system of sources of law and in the system of law itself, including sports law. To this end, the author attempted to define a comprehensive industry of legislation. During the study, a number of institutes of sports law, a system of its principles and subjects were characterized. On these issues, it seems to me, far from the last word has been said. The structure and scope of this work, as well as the tasks facing us, determined the review nature of the consideration of these issues, which are seen as directions for further in-depth research. At the same time, the main purpose of the was to find the place of sports law in the legal system, as a result of which a consistently substantiated understanding of sports law as a complex branch of legislation was developed, and the author is convinced of the advantages of this approach.
References
1. Federal Law of December 4, 2007 No. E29-FZ "On Physical Culture and Sport in the Federation" (hereinafter - the Federal Law "On Physical Culture and Sport in the Federation")
2. S. V. Alekseev, sports law as the newest branch of law, field of legal science and educational discipline (course system), Eurasian Forum//2014
3. Krawczyk, 2002, the Act on Territorial Self-Government of 8 March 1990 (Journal of Laws No. 7., See the regulations and decrees of Polish sport associations such as Resolution No. II/11 of 19 May 2002 issued by the Board of the Polish Football Association ... Krawczyk, Z. (1995) Spoelczne przeslanki przeobraz . en kultury fizycznej.
4. Sicinski, 2002, Sicinski, A. (2002). Styl zycia /Lifestyle/. W Encyklopedia socjologii /Encyclopedia of Sociology/. Warszawa: Oficyna Naukowa, 137-140.
5. Statistical Yearbook of the Republic of Poland. (2012). Warsaw: Central Statistical Office.
6. Szczepanski, M.A. (1992). Pokusy nowoczesnosci. Polskie dylematy rozwojowe /The Temptations of Modernity.
7. Poland's Development-Related Dilemmas/. Katowice: Uniwersytet Sl^ski.
8. Uczestnictwo Polakow w sporcie i rekreacji ruchowej w 2012 r. /The Participation of Poles in Sports and Physical
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9. Recreation in 2012/. (2012). Warszawa: Glowny Urz^d Statystyczny. Departament Badan Spolecznych i Warunkow Zycia.
10. Urych, I. (2010). Wzory i wartosci kultury fizycznej w wybranych magazynach life-stylowych /Physical Culture
11. Models and Values in Selected Lifestyle Magazines/ (praca doktorska/doctoral thesis). Warszawa: Akademia
12. Wychowania Fizycznego Jozefa Pilsudskiego w Warszawie.
13. Ustawa z dnia 18 stycznia 1996 r. o kulturze fizycznej /Law of 18 January 1996 on Physical Culture/. Dz. U. Nr 226. Poz. 1675.
14. Ustawa z dnia 25 czerwca 2010 r. o sporcie /Law of 25 June 2010 on Sport/. Dz. U. Nr 127. Poz. 857.
15. Bennett, T., Savage, M., Silva, E. (2010). Culture. Class. Distinction. London, New York: Routledge.Giddens, 2006, Giddens, A. (2006). Soc-jologia /Sociology/. Warszawa: PWN.
16. Dimitrov, D., Helmenstein, C., Kleissner, A., Moser, B., Schindler, J. (2006). Die makroökonomischen Effekte des
17. Sports in Europa. Wien: Studie im Auftrag des Bundeskanzleramts. Sektion Sport.
Енсаев И.Ш.,
студент 4 курса юридического факультета Стерлитамакского филиала БашГУ Юлбердина Л.Р. старший преподаватель кафедры гражданского права и процесса Стерлитамакского филиала «Башкирский государственный университет»
АУДИОПРОТОКОЛИРОВАНИЕ АРБИТРАЖНОГО ПРОЦЕССА
Ensaev I.Sh.,
4rd year student of the faculty of law Sterlitamak branch of BashSU Yulberdina L.R. senior lecturer of the department dvil law and process Sterlitamak branch «Bashkir State University»
AUDIO RECORDING OF THE ARBITRATION PROCESS
Аннотация.
В статье рассматриваются особенности аудиопротоколирования в ходе судебных заседаний, проводимых в арбитражных судах Российской Федерации. Автор также приводит положительные аспекты совершения протокола судебного заседания посредством аудиозаписи. Abstract.
The article discusses the features of audio recording during court sessions held in the arbitration courts of the Russian Federation. The author also gives the positive aspects of the execution of the minutes of the court session by means of an audio recording.
Ключевые слова: аудиопротокол, арбитражный процесс, судебное заседание, аудиозапись. Keywords: audio protocol, arbitration process, court session, audio recording.
В современных условиях, когда прогресс касается различных сфер жизнедеятельности, видится необходимым приводить в соответствие и правовую базу, регламентирующую те или иные отношения, складывающиеся в обществе. На основании чего, для упрощения, совершенствования проведения хода судебных заседаний законодателем было предусмотрено введение аудиопротоколирования в сфере арбитражного процесса.
Безусловно, что протоколы судебных заседаний имеют важное значение, так как являются источником информации о ходе судебного разбирательства и отражают его существенные аспекты. При этом, данная разновидность протоколирования
обуславливается не только волеизъявлением участников процесса, но и, в первую очередь, законодательством.
Так, например, судебные заседания суда первой инстанций (п. 1 ст. 155 АПК РФ), а равно при совершении отдельных процессуальных действий вне судебного заседания осуществляются с обязательным аудиопротоколированием (ч. 4 ст. 78 АПК
РФ) [1].
При этом, такая запись становится основным средством фиксирования сведений о ходе заседания, в то время как письменный протокол выступает лишь дополнительным источником информации.
