No. 07-00-151/2019-02  date: 6. 3. 2019.

OPINION

The opinion was issued in the procedure regarding the complaint of A. A. against B. B. The complaint states, among other things, that the provisions of Art. 2, 20, 22 and 25 of the Statute of B. B. discriminate against para-taekwondo athletes and clubs. It is stated that Article 22 prescribes the same criteria for acquiring the status of a regular member B. B. for all clubs, which puts para-taekwondo clubs in an unjustifiably worse position and prevents them from becoming regular members. It is also stated that B. B. does not apply the Rulebook on rewarding athletes and coaches to para-taekwondo athletes, does not organize the preparation of para-taekwondists for major competitions and does not provide equipment for members of the para-taekwondo team, as well as the salary for coaches of the para-taekwondo team. In the statement of B. B. It is stated, inter alia, that the aim of the Statute of B. B. is to ensure the inclusion of athletes with disabilities, to specify who can be a member of B. B., to preserve the unity of the national federation and to preserve the common interest in taekwondo and para-taekwondo sports. It was also stated that currently no para-taekwondo club is a member of B. B., that B. B. cannot be blamed for the fact that para-taekwondo is under development and there are not enough competitors, as well as that B. B. organized four competitions in 2019 for para-taekwondists, but that there are many more competitions for taekwondists, because clubs are not aware of the rules for organizing tournaments for para-taekwondists and because there are not enough classifiers in Serbia. It is also stated that a sports branch that has been developing for 40 years and has 1000 competitors and a sports branch that has been developing for four years and has 20-35 registered competitors cannot have the same status. It is further stated that the awards were not given to para-taekwondo athletes, firstly because they were not provided by the Rulebook on rewarding athletes and coaches, which was adopted in 2014, well before the founding of any para-taekwondo clubs, and then because B. B., before gaining the status of a national competent federation and the possibility to regulate the rules for para-taekwondo athletes, abolished the Fund for rewarding athletes and coaches due to lack of funds. The coaches of the taekwondo national team have been receiving their salaries only since a few years ago, and the coaches of the para-taekwondo national team have not, because the Ministry of Youth and Sports has not transferred enough money for para-taekwondo sports. Regarding the equipment and preparation of athletes with disabilities for major competitions, it is stated that in 2019 they provided joint preparations for both national teams and two sets of equipment for athletes with disabilities. During the procedure, it was determined that a procedure is being conducted before the Constitutional Court to assess the constitutionality and legality of Articles 20 and 25 of the Statute of B. B., due to which, in accordance with the provisions of Article 36, paragraph 1 of the Law on Prohibition of Discrimination, the Commissioner suspended the complaint procedure in the part in which it refers to these two articles. In the further procedure, the Commissioner assessed whether B. B., violated the provisions of the Law on Prohibition of Discrimination by provisions of Arts. 2 and 22 of the Statute and by acting with regard to financial support of para-taekwondo sports. Following the analysis of Article 2 of the Statute of B. B. it was concluded that the provision encourages the formation of joint organizations and clubs of taekwondo and para-taekwondo athletes, that it is not discriminatory and does not put sports organizations and athletes with disabilities at a disadvantage compared to athletes without disabilities and their organizations. The analysis of Article 22 of the Statute established that the set condition that the mentioned athletes must be from at least two age categories does not put sports organizations whose members are exclusively or predominantly para-taekwondo athletes in a less favorable position, because the prescribed condition of seven athletes has the same consequences regardless of the age categories in which they are distributed. The fact that the competition system in para-taekwondo sport has fewer age categories is not relevant in this particular case because para-taekwondo sport has more than two age categories. Further analyzing this article, the Commissioner concluded that the measures prescribed by the provision of Article 22 of the Statute of B. B., given the current circumstances in which para-taekwondo sport is, are not proportionate and necessary to achieve the goals stated in the statement of B. B., i.e. that the stated goals can be achieved by some other prescribed measures. As a national sports federation, B. B. has an obligation to provide conditions for the development of sports and, given the prescribed aspiration towards the inclusion of athletes with disabilities, it should take care of organizing as many competitions for para-taekwondo sports as possible. In this regard, by prescribing a neutral rule, i.e. equal criteria regarding the number of competitions in Article 22 of the Statute, B. B. violated the provisions of Article 7 of the Law on Prohibition of Discrimination.. During the procedure, it was not determined that the fact that para-taekwondo athletes were not rewarded for the achieved results represents discrimination because other athletes were not rewarded either, which caused the abolition of the Remuneration Fund in 2017. Considering that during the procedure B. B. did not dispute the allegations that the taekwondo national team coaches receive remuneration for their work, and that the para-taekwondo national team coaches do not receive it, as well as that B. B. did not submit evidence to substantiate the allegations of insufficient funds received from the Ministry of Sports and the decision of the Board of Directors not to pay compensation to the coaches of the para-taekwondo team, the Commissioner states that, in accordance with the provisions of Article 45 of the Law on Prohibition of Discrimination, B. B. did not prove that by treating the taekwondo and para-taekwondo national team coaches differently, they did not violate the principle of equality.  In this way, B. B. violated the provisions of Article 6 of the Law on Prohibition of Discrimination, putting para-taekwondo athletes, on the grounds of disability, in an unjustifiably unfavorable position in relation to taekwondo athletes, by financing the work of taekwondo coaches as opposed to para-taekwondo coaches. The Commissioner states that B. B. did not submit evidence that with their financial plan, i.e. financing proposal, they demanded from the Ministry additional funds intended for para-taekwondo sports, which were not approved by the decisions of the Ministry. Thus, the Commissioner for the Protection of Equality gave the opinion that Article 2 of the Statute of B. B. did not violate the provisions of the Law on Prohibition of Discrimination, because sports organizations and athletes with disabilities are not put at a disadvantage compared to athletes without disabilities and their organizations; setting the condition in Article 22 of the Statute that athletes must be from at least two age categories did not violate the provisions of the Law on Prohibition of Discrimination, because it does not disadvantage sports organizations whose members are exclusively or predominantly para-taekwondo athletes since para-taekwondo sport has more than two age categories; by prescribing a neutral rule, i.e. equal criteria regarding the number of competitions in Article 22 of the Statute, B. B. violated the provisions of Article 7 of the Law on Prohibition of Discrimination, given that the sport in question is still in development and a significantly smaller number of competitions are organized for it  where the prescribed criteria can be met; by failing to provide preparations and equipment for the big competitions and salaries of the para-taekwondo national team coaches, B. B. violated the provisions of Article 6 of the Law on Prohibition of Discrimination, while it was not determined that para-taekwondo athletes were discriminated against in relation to taekwondo athletes because they were not rewarded for the achieved results, considering that during the procedure it was determined that B. B. did not award athletes without disabilities for achieved results either. Consequently, B. B. was recommended to take measures and activities within its competence, in cooperation with sports clubs, in order to increase the number of competitions in which para-taekwondo athletes can participate, so that clubs whose members are exclusively or predominantly athletes with disabilities have equal opportunities to meet the requirements of the Statute, or to take measures and activities regarding the amendment of Article 22 of the Statute by prescribing affirmative measures for clubs whose members are mostly para-taekwondists, in order to achieve full equality of athletes with disabilities, as well as to take measures and activities to provide preparations and equipment for major competitions and the salary for the coach of the national team of para-taekwondo athletes.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković