The future of sports governance: Will sport sustain its traditional model of autonomy?

This post is based on an article written for and first published by LawInSport.  A copy of the original is available here.

Since the 19^th century, many sports have been run on a self-regulating model, anchored in their origins as amateur pastimes. But modern sports are often multi-billion pound ventures, with global audiences and customers – invaluable commodities to be traded and marketed.

Professionalisation can have major benefits: wage increases, unionisation and worker protection, injection of investment for facilities as well as education, safety precautions and the raising of performance standards. However, it also brings with it the risk that finance becomes the tail that wags the dog (in this case what are often referred to as “sporting values” or the “spirit of the sport”).

Faced with the maturing of the sports industry, the capacity of traditional governance models to deal with contemporary issues is under the spotlight, raising the fundamental question: is the current structure of sports governance working? And the related questions, raised by many fans and casual sports observers: what role (if any) should governments be playing in sports governance? Is there something different about sport to other industries?

This article explains the “traditional model” of self-governance for sport and the recent high profile crises it has faced.  It then examines the sustainability of the self-governance model against three essential issues:

1. the independence of sporting associations from national regulation and/or government control/intervention
   
2. the significance of the political neutrality of sporting bodies; and
   
3. the substantial financial dimensions of modern sport.
   

I will examine how each issue impacts sports governance and challenges the traditional model. I conclude by looking at how sports institutions need to reform if their traditional model of autonomy is to remain.

A traditional governance model faced with modern challenges

The traditional position of the sports world on the issues above is simple: governance is an internal matter, and external forces (namely governments) should stay out. In other words, this is an area where government intervention is heavily discouraged – sport should be kept for sports men and women and their legions of adoring fans. The conventional view of the governed and the governors is that sport regulation is a specialised, niche issue, which requires bespoke knowledge and experience. Further, it is said that the traditional model of self-governance allows for flexibility. For example, in response to recent challenges, a number of sporting bodies (such as the IOC) claim to have adopted corporate governance standards, which are said to meet any governance criticisms, while maintaining the independence of the sector.

However, this year has been particularly tumultuous for many sports’ governing bodies amid scandals, public scrutiny across the media, and fundamental challenges to their independence. In a recent article, Glenn Moore[1] identified at least 5 major international federations facing what he calls “red cards” in terms of governance issues: the International Amateur Athletics Federation (“IAAF”), the International Olympic Committee (“IOC”), the Fédération Internationale de Football Association (“FIFA”), the Union Cycliste Internationale (“UCI”) and the International Tennis Federation (“ITF”). Other federations are not sheltered from the storm – for instance, shortly before the launch of the Rio Olympics the International Boxing Association (“AIBA”) faced allegations of match-fixing[2].

Particular issues which have raised eyebrows in 2016 are doping, corruption and match-fixing. This summer, the IAAF declared that athletes from the Russian Athletics Federation would be ineligible from participating in the Rio Olympics[3], following investigations into allegations of widespread doping at the the 2014 Sochi Olympic and Paralympic Games, potentially with the knowledge of the national anti-doping authorities. The decision was upheld by the Court of Arbitration for Sport on 21 July 2016[4]. These findings were echoed in a report into the Sochi Games by Canadian Professor Richard H. McLaren for the World Anti-Doping Agency (“WADA”), which concluded that there had been a state-sponsored doping programme in Russia[5]. Just before the launch of this year’s Olympics, however, the IOC decided not to suspend all athletes selected by the Russian Federation for the Games, leaving the decision to suspend to individual sporting federations on a case-by-case basis after carrying out an analysis of each athlete’s anti-doping record. The IOC banned any Russian athletes with previous doping violations – even if they had served their periods of suspension[6]. Despite reports of potential challenges to WADA’s authority[7], the IOC recently reaffirmed[8] its commitment to invest in the independence and efficacy of WADA.

Earlier in the year, FIFA’s laundry was spread across the front pages of the world’s newspapers. Criminal investigations by US[9] and Swiss authorities[10] are ongoing, as well as investigations by its Ethics Committee into a number of other high-ranking officials, amid allegations of corruption, misplaced funds and a lack of accountability. UEFA’s former President, Michel Platini, had his suspension from football upheld by the Court of Arbitration of Sport (“CAS”), although reduced to 4 years[11]. FIFA’s former President, Sepp Blatter, has brought an appeal against a similar suspension, heard on August 25^th 2016[12]. Meanwhile, tennis has faced its most significant and public set of allegations of match-fixing[13] (following the recent years of similar allegations in the cricketing context[14]), which are still under investigation. Cycling continues to deal with the fall-out from recent doping crises, and in 2016 encountered the first case of “motor doping”, i.e. the use of a mechanical aid concealed in a bike[15]   (for more on technological doping in sport, please see here and here[16]).

Sport and government intervention

The distinction between sports governing bodies and State authorities is never entirely neat. The development and encouragement of sport is specifically recognised as an objective of state institutions, whether at national[17] or international[18] level. Indeed, in some countries (like France) the State is specifically given the function of developing sport. This gives rise to two interrelated issues:

1. potential governmental interference in sporting decisions, and
   
2. state intervention in the regulation and operation of sport.
   

On the one hand, for many years, allegations have been levelled at various governments (or more particularly at Ministries of Sport) for alleged interference with sporting decisions. This can involve institutional governance, as was recently illustrated in Nigeria where, in April 2016, a Federal High Court nullified the Nigerian Football Federation (“NFF”)’s 2014 election results, which had returned a new President and Executive Committee[19] despite an internal appeal body (the NFF Appeals Committee) upholding the polls in December 2014. FIFA was concerned by these developments, which it saw as interference in the governance of the sport at the national level. The former Secretary General of FIFA, Jérôme Valcke, called for the NFF to reinstate the officials in question, arguing that this constituted improper interference in football matters by a State authority. There were suggestions in the media that the Nigerian football team might face exclusion from the Rio 2016 Olympics as a result of the incident, although ultimately this did not materialise[20]. In analogous circumstances, the Kuwait Football Association (“KFA”) has been suspended from football activities by FIFA three times in the last 9 years, once in each of 2007 and 2008, and once in October 2015[21].

Such alleged interference can also manifest itself in governance issues relating to the recognition of sporting authorities at the national level. For instance, Indian boxing faced a tussle until its final round, just before the Rio Olympics, as AIBA repeatedly extended the deadline for the establishment of a national federation, consistent with the principles in the Olympic Charter and without government interference[22].

On the other hand, governments have increasingly expressed a willingness to intervene constructively to address matters said to be fundamentally wrong in sport including corruption and fraud. At the EU level, a “Good Governance” Expert Group in September 2013 published “Principles of good governance in sport”[23] which called on sports authorities to set out in published materials clear statements of their objectives, rules and processes, as well as to adopt democratic processes which engaged with relevant stakeholders.

The UK has also been particularly vocal in this field. At an anti-corruption summit in May 2016, the Communiqué included sport as an area of concern although recognising the autonomy of sporting organisations. It launched “A Charter for Sports Governance” setting “high expectations for any sports organisation that wants to be in receipt of public funding”[24]. In July 2016, the new Sports Minister in the UK expressed the view that England’s Football Association would face the prospect of the withdrawal of government funding if it did not engage in institutional reform[25]. On 31 October 2016, UK Sport and Sport England published “A Code for Sports Governance” (the “Code”)[26], which governing bodies funded by them must adopt, and which imposes specific governance principles and rules affecting the institutional make-up of sports regulators. Other initiatives, such as the Sport Integrity Global Alliance (“SIGA”), launched in April 2016, actively encourage government intervention[27].

It is clear that States are stakeholders in the sporting sector: they are often major contributors to the budgets of sporting associations, and must regulate a number of the activities related to sport. However, this range of experiences shows the need for care in terms of the role government plays in sport regulation: constructive, or disruptive? It is clear that without proactive adjustment of existing governance structures, sports may face government intervention, given that an interest and will to do so is clearly there.

Political neutrality in the sporting context

So if there is a legitimate place for States in the regulation of sport and in cooperation with sporting bodies, what of the role of those bodies in the realm of politics or when faced with policy issues? Whilst the current regime governing most sports is formally neutral, in reality regulators often become involved with politically sensitive issues.

The existing regime espouses political neutrality – sometimes in the face of politically charged contexts[28]. The requirement of neutrality is evident from a brief perusal of the major founding documents of international sporting associations. For example, Article 2(10) of the 2015 Charter of IOC provides that its mission and role include “oppos[ing] any political or commercial abuse of sport and athletes”. Similarly, Article 4 of FIFA’s 2016 Statutes prohibits

“[d]iscrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason”.

As such, sporting federations – particularly at the international level – are supposed to be detached from political controversies, and indeed can be used as a form of diplomacy to bridge cultural gaps. The recent controversy in the UK concerning the wearing of poppies by national football teams – in the face of a ban by FIFA – is an example of this neutrality pledge coming up against local traditions[29].

On some occasions, Federations have (quite rightly) chosen to take a stand on current affairs, such as when apartheid South Africa was suspended by FIFA in 1963, and the IOC in 1964. The flipside of such initiatives, however, is where sporting associations may decide matters based on non-sporting and overtly political grounds. FIFA, in particular, has famously maintained the claim that it is more inclusive than the United Nations, boasting 211 members, the most recent of which include Gibraltar and Kosovo[30]. However, for many years UEFA and FIFA refused to accept[31] the Gibraltar Football Association’s (“GFA”) membership, and only admitted the GFA after they were required to, following lengthy CAS arbitrations[32]. 

Political neutrality is thus a sensitive topic which sporting associations must engage with, all the while ensuring that they do not undermine the sporting decision-making processes for which the associations are responsible. Here also, the establishment of transparent and consistent decision-making processes minimise the chances of sporting decisions being criticised on political grounds.

The importance of finance in sport

Many traditional sports have seen a massive injection of capital and financing in recent years, without necessarily seeing the attendant change of attitudes among participants as well as supporters. Much has been made of the English Premier League’s record £5.14bn TV rights deal for 2016-2019, due to take effect next season and already generating financial muscle for English clubs. Similarly, in cricket the introduction of new formats such as T20 has transformed the revenues available[33]. This new financial dimension is testing existing governance structures, which are placed under additional scrutiny given the wider commercial and other interests affected by sporting decisions.

As Shemilt and Gheerbrant in the cricketing context or Moore in the football context have noted[34], the increase in finances in sport brings significant benefits to it: increased grassroots investment, the broadening of sporting families to new teams, locations or participants, and the improvement of facilities. Action is also being taken on the disciplinary front to ensure that funds are properly spent as they are supposed to be.

In the maturing process, however, a number of sports are yet fully to grapple with the consequences of increased finances. For instance, Financial Fair Play rules, which have been under scrutiny and the subject of litigation, recognise a similar impetus to the mechanisms historically used in American sports such as wage caps, i.e. the trammelling of otherwise unlimited potential earning potential of participants and of the sport itself. Non-American sports have yet to pass through their adolescent phase and balance the money with sporting focus. The task of governance reform must address this dimension to be effective and longlasting.

An uncertain future?

So is there is a way to resolve the issues identified at the outset of this article?

One mooted solution is for structural reform of sports governing bodies: as noted above there have been calls fundamentally to alter the structure of sports governance – not least from the UK Government or UK sporting bodies (such as the FA in the FIFA context). However, this risks altering the nature of a number of sports – particularly Olympic sports – which remain amateur and are largely self-administered, without the interference of external interests.

Other commentators, such as Antoine Duval, urge increased transparency as the key solution to many of the recent problems that have emerged, at a financial, decision-making and rule-based/enforcement level[35]. It is clear that the principles of good governance require as much transparency as possible, to ensure the buy-in of stakeholders and participants in sport. Moreover, sporting associations would be able to demonstrate their efforts at tackling current problems and at implementing good governance principles by ensuring that their decisions (particularly in the disciplinary context) are published where possible.

Beyond this, however, there is a clear consensus developing around the adoption of certain basic process guarantees – the Code is a recent example of this. In essence, this applies transparency and clarity to

1. the institutional structures of governing bodies (e.g. the separation of rule-setting and executive functions mooted by the IOC in relation to WADA in October 2016);
   
2. their powers, as applied to participants; and
   
3. the disciplinary and other regulatory rules to which participants must abide. 
   

For example, the publication of Codes of Ethics applicable to all those involved in a sport, public access to decisions (whether executive or disciplinary), and potential financial transparency are all mechanisms which would achieve this objective. This reflects the recognition of the governance issues raised by the powers and responsibilities of sports governing bodies (as to which, see this post[36] on the LawInSport blog). Another possibility would be to disassociate regulatory bodies from the sports which they regulate, where a fairly discrete task is concerned (the main example of this is WADA, although it has a hybrid model of independent regulation and state participation (and funding)).[37]

Time will tell whether the renewed impetus around these principles will bear fruit. But given the potential for positive contribution and engagement that independent regulation provides, this is a challenge that sporting bodies themselves must take up, or risk seeing others lead the charge.

As for the role of the State in sport, in the author’s view it can have both positive and negative dimensions. This illustrates that sport governance must rely upon transparent, established and neutral processes to guarantee legitimacy and fairness, while sporting values can remain essential and properly accounted for.

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[1] “A sporting chance”, Economia.icaew.com, 20 July 2016, last viewed 15 Nov 2016, available at: http://economia.icaew.com/opinion/july-2016/a-sporting-chance

[2] ‘Rio 2016: International Boxing Association rejects allegations of corruption’, dnaindia.com, 2 Aug 2016, last viewed 15 Nov 2015,

http://www.dnaindia.com/sport/report-boxing-prior-to-olympics-in-rio-aiba-dismiss-corruption-allegations-as-rumours-2240374

[3] See “‘RusAF has not met reinstatement conditions’ – IAAF Council Meeting, Vienna”, 17 June 2016, available at: https://www.iaaf.org/news/press-release/iaaf-council-meeting-vienna (last accessed 15 November 2016)

[4] Media Release Athletics – Olympic Games Rio 2016 The Court of Arbitration for Sport (Cas) rejects the Claims/Appeal of the Russian Olympic Committee (ROC) and of 68 Russian Athletes http://www.tas-cas.org/fileadmin/user_upload/Media_Release_4684_210716.pdf (last accessed 15 November 2016)

[5] “Wada Investigation Of Sochi Allegations”, 16 July 2016, available at: https://wada-main-prod.s3.amazonaws.com/resources/files/20160718_ip_report_newfinal.pdf (last accessed 15 November 2016)

[6]Decision of the IOC Executive Board concerning the participation of Russian athletes in the Olympic Games Rio 2016, 20 July 2016,

https://www.olympic.org/news/decision-of-the-ioc-executive-board-concerning-the-participation-of-russian-athletes-in-the-olympic-games-rio-2016 (last accessed 15 November 2016)

[7] See, e.g. “Wada fears for future as Olympic chiefs take aim over Russia’s ban at Rio 2016”, guardian.com, 20 Sept 2016, last accessed 15 November 2016 https://www.theguardian.com/sport/2016/sep/20/wada-ioc-olympics-russia-ban-rio-2016 

[8] At its 5^th Olympic Summit, available at https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/News/2016/10/2016-10-08-Declaration-Olympic-Summit.pdf#_ga=1.85747226.2003668255.1478523283

[9] The FBI has indicted a number of high-ranking FIFA officials: see, e.g. “Nine FIFA Officials and Five Corporate Executives Indicted for Racketeering Conspiracy and Corruption”, available at: https://www.fbi.gov/contact-us/field-offices/newyork/news/press-releases/nine-fifa-officials-and-five-corporate-executives-indicted-for-racketeering-conspiracy-and-corruption. 

[10] This has focused on the bidding processes for the 2018 and 2022 World Cups: https://www.theguardian.com/football/2016/jun/03/swiss-authorities-search-fifa-headquarters-criminal-investigation-2018-2022-world-cup

[11] See http://www.tas-cas.org/fileadmin/user_upload/Media_release_4474_final_eng.pdf.

[12] See http://www.tas-cas.org/fileadmin/user_upload/Media_Release_Blatter_FIFA_Mar_16.pdf.

[13] See, e.g. “Tennis match fixing: Evidence of suspected match-fixing revealed”, Simon Cox, 18 January 2016, last viewed 15 Nov 2016, http://www.bbc.co.uk/sport/tennis/35319202

[14]“Corruption in Cricket” espncricinfo.com, last viewed 15 Nov 2016 http://www.espncricinfo.com/infocus/content/story/infocus.html?subject=4

[15] “'Doped bikes': Is this cycling's next cheating scandal?”, BBC News, 3 February 2016, last viewed 15 Nov 2016, http://www.bbc.co.uk/sport/cycling/35460562

[16] Louis Weston, ‘Technological advances in sports equipment: cheating or evolution?’ lawinsport.com, 2 June 2016, last viewed 15 Nov 2016, http://www.lawinsport.com/articles/item/technological-advances-in-sports-equipment-cheating-or-evolution-part-1-the-issues; and http://www.lawinsport.com/articles/item/technological-advances-in-sports-equipment-cheating-or-evolution-part-2-establishing-a-regulatory-framework.

[17] An example of this was the renaming of the United Kingdom’s ‘Department of Culture’ to the ‘Department of Culture, Media and Sport; or “DCMS”.

[18] See, e.g. the commitment to this in Article 165 of the Treaty on the Functioning of the European Union (“TFEU”).

[19] See “Nigeria facing prospect of Rio 2016 ban after FIFA confirm possible sanctions”, Liam Morgan, 12 April 2016, last accessed 15 Nov 2016, http://www.insidethegames.biz/articles/1036383/nigeria-facing-prospect-of-rio-2016-ban-after-fifa-confirm-possible-sanctions

[20] The Nigerian national team had previously been banned by FIFA from all competitions following a previous dissolution of the Football Federation: see for example, http://www.bbc.co.uk/sport/football/28235156.

[21] ‘Suspension of the Kuwait Football Association’ fifa.com, 16 Oct 2015, last viewed 15 Nov 2016,

http://www.fifa.com/governance/news/y=2015/m=10/news=suspension-of-the-kuwait-football-association-2717726.html

[22] See, most recently, “AIBA extends deadline for boxing federation elections”, The Hindu, 12 May 2016, available at: http://www.thehindu.com/sport/other-sports/international-boxing-association-aiba-extends-deadline-for-boxing-federation-elections/article8589991.ece

[23] EU Work Plan for Sport, ‘Principles of good governance in sport’, available to view here: http://ec.europa.eu/sport/library/policy_documents/xg-gg-201307-dlvrbl2-sept2013.pdf  (last accessed 15 Nov 2016)

[24] ‘A Charter for Sports Governance” setting “high expectations for any sports organisation that wants to be in receipt of public funding”,’ available to view here: https://www.gov.uk/government/news/new-governance-code-will-ensure-highest-levels-of-transparency-in-british-sport (last accessed 15 Nov 2016)

[25] “Sports Minister Tracey Crouch warns FA they must reform or face funding cuts”, skysports.com, 24 July 2016, last accessed 15 Nov 2015, http://www.skysports.com/football/news/11095/10511172/sports-minister-tracey-crouch-warns-fa-they-must-reform-or-face-funding-cuts

[26] This is available at https://www.sportengland.org/media/11193/a_code_for_sports_governance.pdf.

[27] Sport Integrity Global Alliance, http://www.theicss.org/en/about/section/what-we-stand-for/

[28] Most famously in the context of the 1938 Olympics organised in Munich by the government of Adolf Hitler, or the boycott by Soviet nations of the Summer Olympics in LA in 1984.

[29] ‘England & Scotland FAs to defy poppy ban despite FIFA sanction threat’, bbc.com, 2 Nov 2016, last accessed 16 Nov 2016, http://www.bbc.co.uk/sport/football/37853386

[30] ‘Fifa: Kosovo and Gibraltar become members of world governing body’, bbc.com, 13 May 2016, last accessed 16 Nov 2016,  http://www.bbc.co.uk/sport/football/36290169

[31] Philip Vasquez and Julian Santos, ‘The Journey of Gibraltar’s Football Association – Part 1: Progress to UEFA & FIFA membership’ lawinsport.com, 14 May 2015, last viewed 15 Nov 2015,

http://www.lawinsport.com/articles/item/the-journey-of-gibraltar-s-football-association-part-1-progress-to-uefa-fifa-membership?

[32] FIFA Statement on CAS decision concerning Gibraltar, FIFA.com, 02 May 2016, available at http://www.fifa.com/governance/news/y=2016/m=5/news=fifa-statement-on-cas-decision-concerning-gibraltar-2789313.html

[33] See, e.g. “World Twenty20 2016: Runs, money and power - how T20 has changed the world”, Stephan Shemilt & James Gheerbrant, BBC News, 12 March 2016, available at: http://www.bbc.co.uk/sport/cricket/35718855.

[34] See footnotes 1 and 31 above.

[35] “The rules of the game: The need for transparency in sports governance”, playthegame.org 1 July 2016, last accessed 15 Nov 2016, http://www.playthegame.org/news/comments/2016/034_the-rules-of-the-game-the-need-for-transparency-in-sports-governance/

[36] P Haufmann QC, S Hannett, ‘How public law principles balance the power of sports governing bodies’, LawInSport, 1 August 2016, last accessed 15 Nov 2016, http://www.lawinsport.com/articles/item/how-public-law-principles-balance-the-power-of-sports-governing-bodies?category_id=112

[37] WADA, Government Representation, Responsibilities, wada-ama.org, https://www.wada-ama.org/en/government-representation (last accessed 15 Nov 2016)