The Court of Arbitration in Sport (CAS), and international sports law in general, has long been trying to find the right balance between the protection of the rights of the accused athlete and the need for effective measures against doping to preserve the credibility of sport.
I am not a practicing lawyer, but my legal training and experience is sufficient to raise an objection to the statement made recently by a high ranking FIDE official, “in international sports law, there is no presumption of innocence” on the basis that:
1. A fair trial is a Human Right
Article 11 of the Universal Declaration of Human Rights provides everyone with a right to a fair trial, with a presumption of innocence. European rules here.
2. I do not believe there are any legal methods by which you can ignore the fundamental rights of individuals
3. Do not confuse the concept of strict liability with a lack of presumption of innocence
Anti-doping regulations in sport will generally define the nature of a doping offense as one of pure strict liability, i.e. a liability without fault.
This provides a framework where after a banned substance is found in the athlete’s body, there is no need for a presumption of innocence (or presumption of guilt) as there is no link between sanction and intent.
The substance either IS or IS NOT on the prohibited list. The substance either IS or IS NOT in the blood of the athlete. There can be no questioning these facts.
We have to be very clear here, strict liability is only after a prohibited substance is found and is subject to due process. A couple of key points about the process:
- The substance must be a prohibited substance on the doping list
- The procedure must have been strictly respected
- A accusing federation in sport does not have to prove the guilty intent of the athlete
- Regulations must be clear, unambiguous, not open to interpretation and easily understood by the athlete in common terms
In some cases the rules are written with words to the effect that a substance is prohibited and there should be an “aim of attaining an increase in performance.” In this case the presumption of innocence returns, because now the law under which the athlete is operating is both that the substance is prohibited AND it must be intentionally trying to increase performance.
Other liability offences include the traffic violation of speeding, you are guilty even if the spedometer in your car was broken.
4. Many sport panels will soften a penalty for athletes who acted neither intentionally nor negligently
These cases may have a presumption of guilt based on liability, but with a balance of probability burden of proof requiring the athlete to present evidence that they did not act intentionally or negligently.
5. Further reading
It is worth reading articles such as this one;
I would like to assume most members of the FIDE Fair Play Commission would already be subscribed to and frequently read The International Sports Law Journal which regularly has interesting discussions on this topic.
6. How this relates to Chess
I would like to see FIDE demonstrate an understanding of, and clarification for players; the material concepts of strict liability, liability with a presumption of guilt, and the procedural concepts of the burden of proof and its reversal, as well as the idea of prima facie evidence.
7. Strict liability in chess
An example of a strict liability rule was the mobile phone ring rule… the player had no opportunity to be presumed innocent or guilty, they lost the game if their phone rang. This is the equivalent of finding a prohibited substance in an athlete’s blood. BUT, if the question was “DID their phone ring?”, then they WOULD be presumed innocent and evidence required to show that it was their phone (and not some other phone) which was ringing.
Current Laws of Chess rule 11.3.2.1 provides strict liability for having a non-approved electronic device in the playing venue. Your phone doesn’t even need to ring now.
8. Cheating in Chess is not directly comparable with anti-doping
The relevant law of chess is:
The ONLY way to treat this is with a presumption of innocence.
There are some guidelines for arbiters:
https://www.fide.com/FIDE/handbook/Anti%20Cheating%20Guidelines.pdf
https://arbiters.fide.com/wp-content/uploads/Publications/Manual/ARBManual2021.pdf
But these guidelines are not enshrined in the Laws of Chess for players and are still very much open to interpretation.
In order to forgo the presumption of innocence an event organizer would need to define a strict liability rule. For example:
If, based on your current FIDE rating, you play 100 moves with a z-score of >4.75, you will be removed from the event. Then there is no ambiguity. You get a test and you either have, or have not, reached some predefined threshold for illegal performance.
Sadly, the way some Arbiters and FPP members are applying rules today, the liability rule might be more like “If you beat someone higher rated than you, that is an illegal performance”.
For now, players should be made to feel safe, knowing their Human Rights are protected and they will receive a fair trial, with a presumption of innocence.