OPINION

The opinion was issued in the proceedings regarding the complaint of AA, a meritorious athlete, against BB, due to the way of scoring top athletes who are over 30 years old based on the BB Rules on closer conditions and criteria for awarding scholarships for top amateur athletes for sports development and for awarding financial assistance to top athletes with special merit, awarded by the Ministry of Youth and Sports of the Republic of Serbia. In its statement on the allegations from the complaint, BB asserted, among other things, that following the Rulebook on the national categorization of top athletes adopted by the Ministry of Youth and Sports defined the criteria for acquiring the appropriate sports rank and status AA received the appropriate top status based on the achieved sports results, top athlete-meritorious athlete, and that in 2018 she confirmed the status of top athlete – meritorious athlete. It was further stated that the Rules on closer conditions and criteria for awarding scholarships for top amateur athletes for sports development and for awarding financial assistance to top athletes with special merit were adopted on February 5, 2015, and that, with minor technical changes, they were confirmed on November 11, 2017. Based on the categorization carried out in accordance with the mentioned rules, for categorized athletes of the same sports rank and status priority is given to younger athletes, due to the BB’s intention to systematically influence the improvement of the conditions of young and top athletes, a goal that is derived from the Strategy of development of sports in the Republic of Serbia, in accordance with the Strategy of development of mountaineering sports adopted by BB. BB pointed out that, in accordance with the regulations, this association proposes a list of candidates, and that due to the scholarships AA was able to dedicate herself to sports and achieve top results for many years until her mature years. During the procedure, it was established that it is indisputable among the parties in this legal matter that AA has the status of the meritorious athlete, in accordance with the categorization of athletes according to the Rulebook on the national categorization of top athletes, that she is over 30 years old, and that she was not proposed by the Federation to the Ministry of Youth and Sports to receive a scholarship, as well as that the proposal of the list of athletes to receive scholarships was made after scoring in accordance with the Rules on closer conditions and criteria for awarding scholarships for top amateur athletes for sports development and for awarding financial assistance to top athletes, adopted by BB. The Commissioner for the Protection of Equality analyzed the criteria prescribed in the Rules adopted by BB from the aspect of the measures taken and the goal to be achieved by setting the criteria related to the age of the candidates. In this regard, it was deliberated what the purpose and goal of granting scholarships prescribed by strategic documents as well as by law and by-laws is. As a special goal of the strategic documents, it is stipulated that talents and already ranked top athletes be enabled to develop and progress smoothly in all age categories and, consequently, provide conditions for better positioning of the Republic of Serbia on the international sports scene. From the aspect of the goal to be achieved, it can be concluded that the goal of awarding the scholarship is the progress of the athlete, that is, their further sports development. The Law on Sports stipulates that the general interest in the field of sports, among other things, is accomplished with scholarships for the sports training of top amateur athletes, as well as that the proposal of the annual program of awarding scholarships for the sports development of top amateur athletes is submitted by the competent national sports branch federation. In addition, this Law stipulates that the competent Minister of Youth and Sports determines the detailed conditions and criteria, the method and procedure for the approval of scholarships for top amateur athletes for sports development, and for the awarding of financial aid to top athletes with special merits, as well as the criteria for determining the amount of the monthly allowance for scholarships and amount of financial assistance. In this regard, the Minister issued the Rulebook on the closer conditions and criteria for awarding scholarships for top amateur athletes for sports training and for awarding financial assistance to top athletes with special merits of the Ministry of Youth and Sports. This Rulebook contains conditions concerning the age of the candidate, but they are related to the categorization of top athletes who apply for a scholarship and the athlete’s success in the period for which the categorization was made, as follows: 1) that they are between 15 and 26 years of age – top athlete – national rank, and up to 30 years of age – athlete in paralympic sports; 2) that they have not reached the age of 30 – top athlete – international rank, and up to 40 years of age – athlete in paralympic sports; 3) that they have not reached the age of 45 – top athlete – meritorious athlete. In the Rules of BB on closer conditions and criteria for awarding scholarships for top amateur athletes for sports development and for the awarding of financial aid to top athletes, in addition to the criteria prescribed by the Rulebook of the Ministry of Youth and Sports, a criterion is envisaged related to significantly different scoring depending on the age of the candidate. Bearing in mind the above, it is necessary to analyze whether the setting of additional criteria that are not prescribed by the Law on Sports, as well as by-laws adopted on the basis of this law, is justified and allowed. The analysis of the additional criteria prescribed by the Federation in these Rules showed that candidates who are over 30 years of age were scored with a far lower number of points compared to younger candidates, while younger athletes who have inferior sports results in the same status or athletes of a lower sports status can achieve a higher number of points and take a higher place in the final ranking list with this method of scoring. Analyzing the proposal of the list for awarding scholarships, it can be concluded that AA, as a meritorious athlete, that is, an athlete of the highest rank, achieved a lower number of points with this method of scoring than candidates who were categorized in a lower sports status (national rank and international rank), as well as athletes with lower achieved results. The prescribed scoring method practically means that the athlete’s age is a decisive criterion when nominating candidates for the scholarship. Also, the criteria and method of scoring prescribed in this way do not represent a way of favoring young athletes or a special measure for this category of athletes but are aimed at disincentivizing older athletes, which is neither in the interest of the development of the sport nor the further development of athletes to achieve the best sports results and promotion of sports, which are prescribed by strategic documents as well as by law and by-laws. During the analysis of the disputed rules, the Commissioner also took into account the rules adopted by other national sports federations, whereby it was not established that any federation adopted rules that provided for an additional criterion, decisive for the formation of the proposed list, which are conditioned by the age of the candidates in such a way that older candidates achieve a much lower number of points. Bearing in mind all of the above, the Commissioner for the Protection of Equality, acting on the complaint of AA, issued the opinion that BB, by prescribing criteria for scoring candidates that refer to the age of the candidates in the Rules on closer conditions and criteria for scholarships of top amateur athletes for sports training and for awarding financial assistance to top athletes with special merits, violated the provisions of Article 8 in connection with Article 23 of the Law on Prohibition of Discrimination, which is why it was recommended that BB harmonize the Rules on closer conditions and criteria for scholarships for top amateur athletes for sports training and for awarding financial aid to top athletes with anti-discrimination regulations.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković