PhD, Associate Professor V.I. Kuzmenko¹
PhD, Associate Professor D.A. Musabirova²
PhD, Associate Professor S.Kh. Mukhametgaliyeva¹
Dr.Sc.Tech., Professor B.G. Ziganshin^3
1Yelabuga Institute of Kazan Federal University, Yelabuga
²Naberezhnye Chelny Institute of Kazan Federal University, Naberezhnye Chelny
³Kazan State Agrarian University, Kazan

Keywords: professional sports, sport medicine, athletes’ health and life.

Background. Health protection service in the national sport system is ranked among the priority policy vectors by the national government. It should be noted that it is rather ‘trendy’ for the legal science nowadays to nominate some specific legal fields wherever and whenever some relationship system is built up around some object, with the sport law being ranked among such new legal fields [2, p. 257]. It should be confessed that at this juncture the relationship system in sports is so challenging that needs to be regulated by a special legal framework.

The legal and regulatory framework for the sport conflicts and disputes being effectively settled is still at its early stage of development, and this is the reason why its doctrine still needs to be formed by the theoreticians and supported by sound legal provisions. It is natural that the process is associated with multiple theoretical and practical problems due to the gaps and contradictions in the valid legislation. The legal situation is particularly critical for elite sports that generate a variety of entertainment and social products with relevant commercial implications. The situation is further complicated by the fact that the national elite sports are subject to high political pressure, blackmailing and demonizing campaigns, with the last Olympic Games and inflated meldonium scandal providing good cases in point. These dirty politicking in sports demonstrate the regretfully poor legal protection of the individual athletes’ rights in the global sport system including their rights for health and life that are often totally beyond the focus of the modern legislators.

Objective of the study was to analyze the theoretical and legal provisions for the sport health service to professional athletes.

Study results and discussion. It is rather traditional to portray sport celebrities on the whole and popular leading sport professionals in particular as the healthiest social group and this is the reason why the news about their diseases or unexpected deaths are always so painful for their supporters and society. It was very reasonably stated by L.I. Lubysheva that “it is beyond doubt that every modern athlete has to stand enormous pressures in the training process with his/her body being unable to effectively recover unless supported by modern pharmacology… Athlete cannot cope with the workloads of the modern training systems unless supported by maintenance medicines, otherwise the modern draining high-intensity trainings would trigger a variety of physical and mental pathologies and disorders” [3]. However contradictory it may seem from the common viewpoint, but it should be confessed that a professional athlete is subject to tremendous negative effects in the training and competitive processes, with the modern sport commercialization fever putting an extra physical and mental burden on the athlete, whilst the existing legal and regulatory framework is still too inconsistent when it comes to the legal support for the modern athletic (particularly professional) progress and health protection. This study was intended to analyze the legal situation with protection of the athletes’ rights for the high-quality health service.

The first thing that should be mentioned is the need for a formal sport health service system as a fully-fledged and integral part of the Russian public health system. As things now stand, the valid sport legislation gives a top priority to the athletes’ rights in the context of the general individual rights for tangible and intangible assets in their dialectic relationship, albeit specific and effective legal provisions for the vocation-specific individual rights are still needed.

Sport health system is rather multisided in fact, and we believe that it should make a special emphasis on the cooperation principle in application to the health service related information and high-quality follow-up health services. Having analyzed sport periodicals for the last few years, we have every reason to state that the doctrine developers give a special priority to the patients’ rights for the information critical for their own decision-making on the health service options. As things now stand, the sport legislation still offers regretfully limited guaranties for the athletes’ rights for the high-quality optional health service.

To secure the athlete’s right for due information on the necessary health service, the doctor must be highly competent in the sport-specific health issues to inform the athlete on his/her condition and health service options in view of sport specifics and with a special attention to the health service needs of the athlete in the context of the ongoing training and competitive process. We believe that the above rights may be fairly secured by the following two legal instruments: Doctor in Sports Medicine Standard that has been designed by the Ministry of Labour of the Russian Federation and is now pending approval [5]; and the Health Service Standard categorized for the sport-specific professional athletic support and other special health services.

Second, it should be noted that the health service options are being updated with progress in modern medicine. The traditional paternalism is being replaced by a cooperation principle albeit only one of the cooperating sides (i.e. doctor) is qualified a professional partner bearing full responsibility for the health service quality and timing whilst the patient is supposed to have little if any knowledge of the health service and its options [1].

An analysis of the existing sport legislature shows, however, that the patient-doctor cooperation is far from the ideal model. The Professional Athlete Standard, for instance, requires a professional athlete to be competent in the “compositions and effects of the medicines and health methods applied for the working capacity boosting or rehabilitation purposes in the training and competitive periods” [4]. This competency and relevant responsibility, however, implies the patient being almost as professional as the doctor, and such an awkward situation definitely comes at variance with the classical legal status of a patient and client for the health service.

We recognize the importance of such competency for elite athletes, and it should be confessed that such competency is quite common in the global elite sports today, albeit with the following reservations. Lately a new Article 230.1 was added to the Criminal Code of the Russian Federation that spells out the responsibility for persuading an athlete into using some agent(s) and/or method(s) prohibited for use in the national sports; and Article 230.2 setting forth the responsibility for such persuasion and/or use of the agent(s) and/or method(s) prohibited for use in the national sports. This means that an athlete basically competent in the doping related issues may find him/herself being persuaded into use of doping and may call such a persuader to responsibility or refuse using doping – with such a refusal, by the way, running counter to the traditional responsibility of a patient.

Then what is the further faith of the athlete violating the above provisions, and what are the guarantees for his/her further sport career if any? An analysis of the valid legal and regulatory framework shows that no guarantees may be expected for the individuals who have violated the Criminal Coder Article 230.2. We believe that such legal situation is inacceptable and, therefore, the relevant guarantees shall be provided by the Labor Code of the RF [6] similar to those provided by Article 348.12 “Athlete’s/ coach’s service contract cancellation provisions”. This means that an athlete’s service contract shall make a provision for the employer’s responsibility to remunerate the athlete by at least a double monthly income in case when the service contract is cancelled on the athlete’s initiative for the reason that the health rights of the latter have been violated as provided by the Criminal Code Articles 230.1 and 230.2 or otherwise.

It should be mentioned that the health relationship is not limited by the doctor-patient cooperation since there is almost always an influence or contribution of a third party – at least the coaching/ management team, with this contribution raising a wide variety of special ethical and legal dilemmas, since the doctor’s responsibilities to the athlete and team may run into conflict – whilst the conflicts of interests in such legal situations are common and are being widely discussed by foreign analysts [8].

The instant health service often provided on request on the run to let the athlete further compete in the game or sport event – quite often exposes the athlete to a high health risk or irreparable damage to health, particularly in case of a negligent health service. An athlete’s consent for such an instant high-risk service shall be deemed invalid by the sport laws.

Conclusion. The professional athletes’ health and life protection is ranked among the top priority objectives of the modern sport movements and policies. A well-developed legal system in the sport sector could provide a set of effective and highly relevant tools to secure the top-quality sport health service. We believe that the legal system reform in the sector to attain the above goal shall be designed to: (1) create a sport health service system within the national legal and regulatory framework with the relevant essential provisions; (2) clearly guarantee by a special legal provision the athlete’s right for the quality health service – at least the same as for other patients; and (3) legalize the athlete’s health status to secure the above right. We believe that the sport law shall not only require the athlete’s health to be in due priority but also provide every guaranty for a high-quality health service. Ideally, the sports, laws and health system shall benefit from the synergy of the duly harmonized health policies and practices to protect the above lawful athlete’s rights for their intangible assets.

References

1. Gibadullina L.T. Patsient kak slabaya storona v obyazatelstvakh po okazaniyu meditsinskikh uslug [Patient as weakness in provision of medical services]. Meditsinskoe pravo, no. 3, pp. 19-24.
2. Ivanov V.D., Orekhova A.A., Rakitin M.M. Sportivnoe pravo: ponyatie, predmet, istochniki, problemy i perspektivyi razvitiya [Sport law: concept, subject, sources, problems and development prospects]. Obrazovanie i nauka v sovremennykh usloviyakh, 2016, no. 4 (9), pp. 257-261.
3. Lubysheva L.I. Sovremenny sport: problemy i resheniya [Modern sport: problems and solutions]. Chelovek. Sport. Meditsina, 2014, vol. 14, no. 1, pp. 12-14.
4. Prikaz Mintruda Rossii ot 7 aprelya 2014 g. no. 186n «Ob utverzhdenii professionalnogo standarta «Sportsmen» (red. ot 12.12.2016) [Order of the Ministry of Labour Russia April 7, 2014 no. 186n "On approval of professional standard 'Athlete' (as am. 12.12.2016)]. Byulleten normativnykh aktov federalnykh organov ispolnitelnoy vlasti [Bulletin of normative acts of federal executive bodies], 2014, no.32.
5. Proekt Prikaza Mintruda Rossii «Ob utverzhdenii professionalnogo standarta «Sportivny vrach» [Draft Order of the Ministry of Labour Russia "On approval of professional standard 'Sports Doctor']. SPS «ConsultantPlus».
6. Trudovoy kodeks RF ot 30 dekabrya 2001 g. no. 197-FZ (red. ot 29.07.2017) [The Labour Code of the Russian Federation December 30, 2001 no. 197-FL (as am. July 29, 2017)]. Sobranie zakonodatelstva RF [Legislative Acts of the Russian Federation], 2002, no. 1 (p. 1), art. 3.
7. Ugolovny kodeks RF ot 13 iyunya 1996 g. no. 63-FZ (red. ot 29.07.2017) [The Criminal Code of the Russian Federation June 13, 1996 no. 63-FZ (as am. July 29, 2017)]. Sobranie zakonodatelstva RF [Legislative Acts of the Russian Federation], 1996, no. 25 art. 2954.
8. Frenkel D. Sports medicine and the law. Medicine and law, 2002, vol. 21(1), pp.201-204.
9. Koller D. Team Physicians, Sports Medicine, and the Law: An Update: An Update. Clinics in Sports Medicine. 2016, vol. 35(2), pp. 245-255.
10. Steve P. Health law symposium: sports medicine conflicts: team physicians vs. Athlete-patients. St. Louis L.J. 2005, vol. 50, pp. 185-1361.

Corresponding author: kuzmenko_valya@mail.ru

Abstract

The study considers a few problems with concern to the professional athletes’ health and life protection – particularly upon their retirement from professional sports. It is important to clearly specify and analyze the key problems of the health services to former professional athletes viewed as a specific health group, with such analyses being critical for bridging the gaps in the relevant legal provisions and law application practices to secure the valid legislation being applied on the most efficient basis with the lawful interests of every professional sport actor being respected on a balanced basis. Objective of the study was to analyze the theoretical and legal provisions for the sport health service to professional athletes. The practical study methods were dominated by the general theoretical (didactic) cognition method, comparative and logical structure analyses, plus analyses of the theoretical and practical studies in the subject field to secure the athletes’ rights being duly protected by the health service system.