Due to DVD Copying, Top Player May Be Banned from Sport

The question is why merely initiating criminal proceedings results in an athlete being unable to compete, either individually, for a club, or for a national team. Athletes against whom criminal proceedings are initiated for an offense that carries a potential prison sentence of three years or more will not be able to participate in sports competitions until the proceedings are concluded. Regardless of whether their guilt is proven or not.

Written by: Prof. Dr. Hrvoje Kačer

The Sports Act has been in force for only a few months, and it is already becoming clear that this long-prepared and anticipated regulation will be the cause of new injustices. This is evident even in one seemingly insignificant aspect of the law, which apparently did not seem particularly significant or controversial to anyone. Namely, Article 13, which prescribes the legal consequences of conviction and the initiation of criminal proceedings against (among others) an athlete, will likely become the ‘weak point’ of the entire law, a point that, if not changed, will seriously jeopardize all the good that the law carries.

According to the aforementioned article, all athletes against whom criminal proceedings are initiated for an offense that carries a potential prison sentence of three years or more will be barred from participating in sports competitions until the proceedings are concluded. It is easy to assume what this could cause in practice. Nowadays, few people do not have a driver’s license and do not drive a car or motorcycle. Unfortunately, unfortunate accidents, often with fatal consequences, are our everyday reality, and a responsible person or one accused of such an accident can be an athlete just like anyone else. According to Article 272 of the Criminal Code, the mildest form of this act (causing a traffic accident) carries a prison sentence of up to three years, while the most severe carries a prison sentence of up to ten years.

According to Article 201 of the Criminal Code, a prison sentence of up to three years is prescribed for disclosing or disseminating something from a child’s personal or family life, which exposes the child to ridicule by peers or others. It is clear that, while respecting the child’s interests, very different things can be the reason for peer ridicule, and the perpetrator can also be a minor, even a minor athlete. Article 251 of the Criminal Code prescribes a prison sentence of up to three years if someone produces noise contrary to regulations that is suitable for causing serious health damage to multiple persons, which can also be the case with drilling holes in a wall with a drill, demolishing a partition wall, excessively loud music at a birthday party, driving without a proper exhaust, etc.

Article 230 of the Criminal Code prescribes a prison sentence of up to three years for unauthorized copying of a copyrighted work (which includes borrowed DVDs or tapes), Article 303 prescribes a prison sentence of up to five years for giving false testimony (as many athletes were in that situation defending the then-current way of doing business in sports), and Article 298 prescribes a prison sentence of up to five years for the mildest form of evading customs control, which is failing to declare any goods to a customs officer, which can be both serious and trivial… and so on.

The aforementioned criminal acts were not chosen as examples because they are insignificant, but because there are relatively many possibilities for someone to find themselves in court proceedings initiated for the aforementioned acts, which is still very far from any, especially final, conviction. All these acts, as well as many others, are such that much depends on witness testimonies, which can be, for various reasons, both subjective and later changed. In all these cases, regardless of whether and what kind of sanction will be imposed, the athlete will be barred from participating in sports competitions throughout the entire criminal proceedings, which can last for years.

Given the notorious fact that even a break of several months is often ‘death’ for a sports career, it is clear that the possible consequences are catastrophic. The question is therefore why merely initiating criminal proceedings results in an athlete being unable to compete, meaning neither individually, nor for a club, nor for a national team. One only needs to imagine a situation where, before a major competition, all members of the national team favorably purchase (or even receive for free) laptops in a duty-free zone and do not declare them to customs at the border – it is clear that they did not act properly, it is clear that they will be punished for it, but it is not clear why they should not compete in any competition to which Croatian legislation applies, and this until a final judgment is made, whatever it may be.

The Croatian Criminal Code is, especially the law of the latest amendment that has been in effect since October 1, 2006, relatively strict and prescribes a large number of criminal acts for which a prison sentence of three years or a heavier sentence is prescribed as a possibility. On the other hand, the fact that Croatian prisons are overcrowded, often having capacities that are more than double smaller than the number of ‘guests’ they contain, that judicial practice shows that imposed sentences are almost never maximum, and that the rule is that they are very close to the legal minimum, means that the sanction prescribed by the Sports Act is even more absurd.

An athlete will often be completely destroyed by a break of several years (and a shorter break is sufficient for a career interruption) only to finally be acquitted or punished with a conditional sentence. For the athlete, therefore, merely initiating proceedings is a greater punishment than the maximum they can receive when the proceedings are concluded. Not to mention that the athlete who ultimately is acquitted of any punishment will also be punished in this way. If an acquittal occurs, and as in all civilized systems, the rule applies here that everyone is innocent until proven otherwise by a final judgment, the question arises as to who will compensate that athlete for the damage suffered, what if that athlete is of great importance to our national team, what if…

It is difficult and impossible to view Article 13 of the Sports Act positively. We would rather say that there has been a complete confusion and a reversal of thesis. It is clear to everyone that in the case of some particularly serious offenses, it is necessary to bar someone from competition to prevent them from causing even greater harm to themselves and others. However, it is even clearer that these are certainly not acts chosen according to the criterion of the maximum prescribed penalty (especially because this penalty is almost never imposed) of three years in prison, and that they must be acts that are directly related to sports and competitions. If someone happens to be guilty of a traffic accident, why punish them further by barring them from competition before they are even convicted? The same applies to hiding computers or several pieces of clothing when crossing the border and almost all other acts.

It is clear that when formulating Article 13 of the Sports Act, the constitutionally guaranteed presumption of innocence was forgotten, it was forgotten that many athletes are professionals and live from sports, and the constitution guarantees them the right to work. It was also forgotten that the Criminal Code is a so-called organic law that is above ‘ordinary’ laws and as such clearly limited the legal consequences of a criminal conviction, it was forgotten… The logical conclusion is that Article 13 of the Sports Act needs to be changed. This should not be understood as an appeal for athletes to be above the law, but as an appeal for them not to be in a worse position than others.