The time for self-regulation in sport has passed

The efficacy of self-regulation is not a new phenomenon; it has troubled practitioners, academics, and sports administrators

alike for many years. This year, however, has

seen the boundaries of such efficacy stretched

to unprecedented levels.

Doping scandals, corruption in football, and judicial and disciplinary decisions that could potentially open the floodgates have all contributed to an environment of distrust, suspicion, and possible illegality that now threatens to destroy not only the image of sport, but also the public perception of

what amounts to pure and clean sport.Notwithstanding any arguments about the involvement of external regulation of sporting illegality, the present discussion considers the efficacy of self-regulation in light of the current trends and examples and concludes that such is

the nature of the decision making in self-regulation that the dichotomy of the ability and willingness to execute and apply the rules, in a purposeful and appropriate manner, is often called into question.

To drug or not to drug?

Anti-doping always makes the headlines, mostly because of the names involved in anti-doping rule violations and in the subsequent disciplinary processes and penalties. Sometimes the process

is considered to be fair, other times not so much.

It is not often, however, that we see anti-doping headlines focusing on the inability of sports governing bodies to regulate anti-doping, let alone headlines identifying elements of malpractice or lack of transparency from such governing bodies.

Following the sensational story of allegations of an anti-doping cover up involving officials of the International Association of Athletics Federations (IAAF) last year, in 2016 there emerged another sensational story of allegations that a British

medical doctor was supplying professional

athletes with performance-enhancing substances.

The subsequent investigation indicated that UK Anti-Doping (UKAD), the country’s national anti-doping organisation, may have failed to properly investigate the doctor by allowing his practices to go undetected, even after information was supplied to it by a whistleblower.

Allegations of further malpractice from within sports governing bodies also became headline news, days before the opening ceremony of the

Rio Olympics, when it was alleged that Russia ran a state-sponsored doping programme. The story ran throughout the summer, before, during, and even after the conclusion of the Games, as it involved litigation before the highest court for sport, namely the Court of Arbitration for Sport (CAS) in Lausanne. The story was based on an independent report, which claimed there was reliable evidence to suggest anti-doping malpractice in Russia.

For the purposes of justifying the central hypothesis in the present article, the integral part

of the story was that the relevant governing bodies responsible for monitoring and regulating such activities, it was alleged, were aware of such malpractice and did not act upon the information they had received.

To this effect, the author has suggested,

publicly, that governing bodies have an enormous responsibility to ensure that a level playing field

is applied at all times, particularly with regards

to the application of sanctions on anti-doping

rule violations. In the premises, an important question has been posed: who is going to rule

upon the rulers?

Football and the Bonfire of the Vanities

Allegations of financial malpractice have surfaced

in the world of football too. Top officers from the sport’s world governing body, FIFA, are accused

of bribery and corruption. In the US a criminal prosecution has already begun, as is the case

with Switzerland, where FIFA is headquartered.

FIFA itself also launched, in September 2016, a bribery and corruption case against its officers.

The body’s Ethics Committee will investigate possible violations of articles 13 (general rules of conduct), 15 (loyalty), 19 (conflicts of interest), 20 (offering and accepting gifts and other benefits), and 21 (bribery and corruption) of its Code of Ethics.

In a similar fashion, in England, in September 2016, the Telegraph published evidence about

the former England manager, Sam Allardyce, indicating that he was prepared to bypass the

FA’s rules on third-party ownership. A third-

party ownership agreement is considered illegal both by FIFA and the FA, as it means that football intermediaries and investors can own the financial rights of a player and, in the event of a player’s transfer from one club to another, may acquire part of the transfer fees. The revelations have forced Allardyce to resign, but indicated

that financial malpractice and circumvention

of the rules are both inherent in the game and very much a reality in the business side of it.

The case for criminalisation

In the author’s opinion, the nature of a sporting relationship, particularly with reference to professional sport, is a contractual one, with emphasis on the regulatory framework for each sport that determines the parties’ roles and responsibilities, as well as their conduct. A breach

of the relevant rules by one or more parties to this relationship would automatically mean a breach of the contract between them, with relevant sanctions being in place.

Although in a normal contractual breach in a civil case, the court would offer a remedial application

of compensation and/or damages, in a sporting dispute this contractual relationship may go further towards excluding the offender from their trade with the application of a ban on sport-related activities.

In the premises, it is submitted that, unlike criminal law, the private nature of anti-doping sporting disciplinary proceedings fails to take into account the required elements of certainty and transparency towards a reliable disciplinary procedure, which would respect the rights of the accused (see, for example, Squizzatto v FINA CAS 2005/A/830). Although the proceedings are of a disciplinary nature, the actual prosecution of a sporting offence, and its subsequent punishment, resembles that of the criminal law (see Kabaeva v FIG CAS 2002/A/386).

Similarly, it is submitted that the disciplinary proceedings of sports governing bodies, more

often than not, fail to address the aims of their penalties, or at least to evaluate the main penological principles and, to a certain extent, go beyond what this private relationship presupposes. As the examples indicate, in certain circumstances,

a lifetime ban or a considerable fine cannot be said to be part of a remedial aspect of compensation.

On the contrary, such punishment is very much the hard element of a paternalistic disciplinary process, given that it has as an aim of either excluding the offender from their trade or ‘exhausting’ them financially. Notwithstanding

the failure of the disciplinary process to establish

a coherent and effective deterrent effect, it is submitted that the harshness of the rules in

relation to the application of the penalties is not

only disproportionate to the offence committed, within the regulatory framework, but also creates

an anathema of a kind that is usually regulated by the criminal law.

It follows that the nature of the disciplinary proceedings and the subsequent penalties imposed on the offender meet the criteria established in many criminal codes, whether in common law jurisdictions or civil law ones. For those who believe that the application of criminal law on sporting violations would confuse the aims of private law with those of public law, they may need to consider the argument that some areas of self-regulation, such as sport, have immense significance and importance to the public at large and, consequently, their activities and decisions may affect rights that would otherwise be considered public.

Sport in society

There is little doubt that sport is embedded into society and assists toward the creation of important values that relate to health, honesty, fairness,

and equality. In the premises, it is submitted that, without exception, the regulatory framework of all major sports governing bodies is very much based on the aforementioned principles. Although in theory self-regulation expresses a continuous desire to widely and indiscriminately inform the public of its benign attempts with regards to such principles, one would be hard pressed to accept that self-regulation has been effective.

The examples discussed above indicate a widespread circumvention of the regulatory framework, sometimes intentionally and sometimes through a sheer volume of incompetence. In either case, the end result is the destruction of the level playing field, which cannot be said to be the intended purpose behind the creation of every regulatory framework.

The author respectfully submits that the enormous importance of sport for society outweighs any possible self-regulation arguments that may attempt to dissuade a discussion in

favour of criminalisation. The lack of fairness in the application of the rules, the lack of transparency in the overall regulation of sports, and the intentional attempts of sporting officers to engage in activities of bribery and corruption remove any possible suggestion that self-regulation has succeeded.

This is, perhaps, the appropriate time where power needs to be taken away from sports governing bodies and the appropriate time

for ultimate catharsis.

Dr Gregory Ioannidis is a senior lecturer in law at Sheffield Hallam University and an academic associate at Kings Chambers. He is a resident author with Solicitors Journal @sheffhallamuni www.shu.ac.uk