UK Bar: Sports Review 2016
Sports Law in 2016 – Developments and Perspectives
by Daniel Saoul of 4 New Square
2015–2016: Integrity in the Spotlight
It has been another busy year in the world of sports law. As we look back on the Rugby World Cup in 2015, and ahead to the 2016 Olympic Games in Rio de Janeiro, with the European Football Championships taking place in France a few weeks beforehand, the focus off the pitch remains, unfortunately, on issues of integrity. Football, athletics and tennis are just a few of the mainstream sports under scrutiny. Never have their institutions attracted so much distrust.
Corruption and cheating of course take many different forms – the best-known (and, it seems, most prevalent) being the abuse of governmental power in exchange for money and status, doping and match-fixing. Sometimes a few or all of these combine in an unholy alliance – which, as we have learnt this year, has been the case in athletics and quite possibly elsewhere.
As one scandal after another unfolds, spectators’ faith in the honesty of athletes’ effort, and that of officials’ administrative decisions, is tested to breaking point.
Here is a review of some of the highlights (or lowlights) of the last year.
Corruption in Football – The Beginning of the End?
The last 12 months in football have seen extraordinary legal developments where the management of the game is concerned, the extent of which has shocked even the most cynical followers of “the beautiful game”.
In late May 2015 seven FIFA officials were arrested at a hotel in Zurich on the eve of the 65th FIFA Congress, in connection with an ongoing investigation by the FBI into wire fraud, racketeering and money laundering. They were among 14 people indicted. There was a simultaneous raid on the CONCACAF (regional) headquarters in Miami. Further arrests followed in December 2015, and there are now ongoing cases in five jurisdictions other than the US; these include Germany and Switzerland.
The allegations revolve around alleged bribery and fraud relating to the acquisition of media rights for FIFA matches in the Americas, as well as alleged illegitimate payments in relation to, among other things, the selection process for the 2010 World Cup that took place in South Africa, and the 2011 FIFA presidential election won by Sepp Blatter. There are further questions over the legitimacy of the selection processes for the 2018 World Cup in Russia and the 2022 World Cup in Qatar.
Sepp Blatter gained re-election as FIFA president in 2015, insisting he was not tarnished by the drama that was unfolding around him; but in something of a U-turn, he then immediately declared he would be standing down in February 2016, and a fresh election was planned. Michel Platini, the UEFA president, was seen as his natural successor and the man to clean up football.
In September 2015 the sport would suffer yet another blow: the Swiss authorities opened criminal proceedings against Blatter in connection with an alleged “disloyal payment” of approximately £1.35 million he approved on FIFA’s behalf in 2011 to Michel Platini. Thus, football’s most senior (and possibly most derided) statesman, along with his heir to the throne and intended saviour of the sport, were themselves accused of serious misconduct.
Both Blatter and Platini denied any wrongdoing. However, on 21 December 2015 FIFA’s independent ethics committee found them both guilty of ethical and regulatory violations, and banned them from the sport for eight years. Both have since indicated they will appeal to the Court of Arbitration for Sport – whose final decision will, one hopes, mark a turning point in the governance of football. Whatever happens, neither Blatter nor Platini will be in the running for the FIFA presidency in 2016, and football fans around the world will be hoping for a new era of reputable and transparent governance at the highest echelons of football’s bureaucracy.
Historically, one of the major obstacles to improvement in the governance of international sports federations has been the lack of accountability of officials. In simple terms, they report to no one, and the sanction that would act as the most powerful deterrent – exclusion of a sport from the Olympic Games – is seen as so severe and unfair on innocent athletes that it is unlikely ever to be deployed. Time will tell whether public, media and sponsor pressure alone will produce the step-change needed.
The Fight Against Doping Takes On a New Dimension
Ever since the allegations concerning Lance Armstrong’s doping programme became more specific and robust (culminating, in particular with the confession of his former teammate Tyler Hamilton, published in 2012 and relied upon extensively by USADA in their prosecution of Armstrong), there have been reports of elite athletes making “donations” to the relevant governing bodies in order to cover up positive doping tests.
But the root-and-branch nature of doping in the modern era, and the complicity of governing bodies in it, was only truly exposed in recent months, completely overshadowing the introduction of the new World Anti-Doping Agency (WADA) Code on 1 January 2015, which brought with it mandatory four-year bans (doubled from two years) for athletes found to have cheated.
Following damning reports by German broadcaster ARD and the Sunday Times alleging systematic state-sponsored doping in Russian athletics, in which it was suggested the IAAF had been complicit, WADA set up a three-person independent commission, chaired by former WADA President Dick Pound QC, to examine the claims made.
The WADA commission reported back in two stages, with blockbuster findings that would mark a new low in the credibility of sporting institutions.
On 9 November 2015 the commission’s first report was published. Spanning 335 pages, it identified “systemic failures within the IAAF and Russia preventing or diminishing the possibility of an effective anti-doping program”, such that the Russian Athletics Federation (ARAF), the Russian Anti-Doping Association (RUSADA) and the Russian Federation itself could not be considered compliant with the WADA Code. This was not mere negligence: the commission concluded that the information available to it demonstrated “criminal conduct on the part of certain individuals and organisations” and confirmed “the existence of widespread cheating through the use of doping substances and methods… done by the athletes’ entourages, officials and the athletes themselves.” Further, the commission concluded that “coaches have attempted to manipulate or interfere with doping reports and testing procedures…[and] are supported in their doping efforts by certain medical professionals” and identified “the intentional and malicious destruction of more than 1,400 samples by Moscow laboratory officials after receiving written notification from WADA to preserve target samples”.
Findings on this scale were unprecedented. The main recommendation contained in the report, that the Russian Athletics Federation be banned from international sport until further notice, was swiftly implemented, as were life bans for a number of individuals. Lord Coe, by now the IAAF president, had no choice but to move away from his previous combative assertion that the allegations were “a declaration of war” on the sport, instead expressing his “shock, anger and sadness” at what had emerged.
But worse was to come for the IAAF, which was itself already embroiled in various related allegations of corruption, including criminal charges brought in France against Lamine Diack, Coe’s predecessor as IAAF president, and internal disciplinary proceedings against his son, who held a marketing brief for the IAAF.
As had been trailed in the WADA commission’s first report, on 14 January 2016 the commission published its second and final report, this time focusing on the role of the IAAF. Its findings were deeply depressing, although perhaps no longer surprising for an increasingly weary public. The commission made the following conclusions:
- A group of senior officials and staff, led by Lamine Diack, designed and formed an “informal illegitimate governance structure operating under the aegis of the IAAF”, with no checks and balances in place to prevent such an abuse of power.
- That group was culpable of repeated acts of corruption and extortion, including extorting money from Russian athletes in exchange for covering up positive doping tests, as well as bribing other IAAF staff members to keep them “quiet”.
- This inner circle improperly infiltrated the IAAF medical department – which in theory should have been isolated from the rest of the organisation’s political machinery – and “deliberately stalled and delayed” cases of Russian athletes likely to involve doping, as well as allowing information relating to Russian athletes to flow improperly to the Russian Athletics Federation. In practice this meant, among other things, that six athletes who should have been provisionally suspended immediately prior to the London 2012 Olympic Games were permitted to compete. One of these won a gold medal.
- The level of detail in both of these reports (the second in particular) is as impressive as it is startling. The complete lack of integrity of those involved is perhaps the most troubling feature of the case: individuals entrusted with the running of one of the highest-profile sports in the world showed no appetite for furthering its best interests.
Lord Coe, for his part, managed to escape the flak, although the WADA commission concluded: “At least some of the members of the IAAF Council [of which Coe had formed part] could not have been unaware of the extent of doping in Athletics.” At the press conference marking the publication of the report, Dick Pound stated that he did not believe Coe himself knew what was going on. As at the date of writing Lord Coe still retained the support of athletes to reform the IAAF, and recognised the urgent and profound need for change.
No quick fix?
In the immediate aftermath of the WADA Commission’s second report, match-fixing – which had allowed other misdemeanours to take centre stage in 2015 – once again reared its head, with tennis the sport in the limelight.
In January 2016 the BBC reported that 16 players, all of whom had at one point been ranked in the top 50, had been repeatedly flagged to the Tennis Integrity Unit – set up to police the sport – over suspicions they had thrown matches. It was alleged that betting syndicates in Russia, northern Italy and Sicily had made hundreds of thousands of pounds betting on matches thought to be fixed, including three games at Wimbledon. Although tennis had introduced a new anti-corruption code in 2009, the sport’s governing body, the ITF, had felt unable to prosecute the cases in question because they predated the new rules. More troubling, however, were reports of subsequent red flags in relation to several of the players in question, but again none of them was disciplined.
As with the WADA reports, these developments draw attention not only to the existence (or at least, alleged existence) of match-fixing in high-profile sport, but also to the apparent failure of a well-resourced governing body to take appropriate action to deal with it. In many ways the latter is more of a concern than the former, since without a determined, organised and sincere attempt by administrators to deal with corruption in sport, there can be no light at the end of the tunnel.
The tennis authorities have rejected suggestions that evidence of match-fixing has been “suppressed for any reason or isn’t being thoroughly investigated”, although the extent of what has and has not been done is not yet clear. The difficulty for officials now is that public trust is at such a low point that denials of this nature no longer carry much weight.
In fairness to the Tennis Integrity Unit, one player, Alexandros Jakupovic, was given a life ban from the sport in December 2015 for breaching anti-corruption rules, including attempting to contrive the outcome of an event, soliciting a player not to use his best efforts, and offering money to negatively influence a player’s best efforts or failing to report such an incident. Mr Jakupovic’s career-high ranking was No. 267 in 2008.
What remains to be seen is whether this is the tip of the iceberg, or the iceberg itself.