How to address malpractice in sports: The issue of compliance
Dolf Segaar of CMS Netherlands examines some of the ways in which malpractice in sports is handled from a societal and legal perspective.
Sports enable individuals to exercise their bodily talents. They galvanise communities, energise people, are an outlet for communal sentiments, shape national and local identities, produce shared stories, and gather people of all kinds of backgrounds for a common cause. Sports are also good for drawing attention and are increasingly a source of income, if not financial richness.
The financial factor however, has become a threat for sports as well. While young people all over the world are running across fields, wrestle, jump, skate, play, compete to enjoy themselves, we witness more and more financial malpractices, forms of abuse and exploitation, the influence of drugs, corruption, sexual abuse, and other practices that spoil the game.
The question is how to respond to such malpractices. Who should respond? Should that be governmental institutions like courts, or should sports organizations be the ones to take responsibility? And what kind of rules should those responding agencies have to issue?
When all those questions are answered, we can deal with the issue of compliance: that is, how athletes and sports clubs are held to the rules and are controlled for their adherence to, or complying with, the rules.
Sports are firmly rooted in the social sphere. Kids go out of the house to play with each other. They play games and, at one point, will join a club or form a club to develop their skills and enter a competition with members or teams of other clubs.
When someone plays false, others will admonish him, or even banish him from the game. In informal games, players will referee themselves. When there is a general agreement that someone committed a foul, they will correct the action. When the games become more serious or take place in the context of an organized competition, certain individuals, usually members of the clubs, will be disciplinary agents, usually called referees. When more serious faults are committed, that cannot be regarded as "rules of the game" such as more serious misconduct on the pitch, or forms of corrupt behaviour, clubs will do the disciplining, usually by way of specially appointed disciplinary committees, that need to apply rules and regulations of its (national and/or international) Federation.
The important question related to compliance is whether the social sphere is sufficiently equipped by itself to address malpractices in sports as we have seen it in the recent past. Sports Federations are clearly not warmly welcoming external influences when it comes to matters of compliance. Court cases before the European Court of Justice and discussions with the European Committee have made clear that Sport Federations embrace what they call "the sporting autonomy". Sport belongs to the sport and there should not be too much interference from the outside world.
However, we have seen several examples of malpractices in professional sports, which couldn’t be addressed adequately by the Federations themselves. Where FIFA and UEFA implemented regulations with regard to Financial Fair Play, Third Party Ownership and protection of minors, it became clear that the enforcement of such rules by the Federations and the compliance to the rules by its members is not at all an easy task. And what about doping in cycling and athletics or the exploitation of athletes: "We are treated like sporting slaves" was the heading of an article in The Guardian newspaper of August 3, 2017. The article explained how athletes were bought by rich Arab and Middle Eastern nations and had their nationality changed against the promise of a good salary, housing and the like. There are numerous examples, however, of such athletes that were "routinely mistreated, denied prize money and sometimes housed in filthy conditions".
The question is then justified: how long will it take before people lose interest in sports dominated by financial interests, bribes, abuse and unfair competition? How to address malpractices and safeguard a positive outlook for sports in the future? Who should do what?
Other sectors will call for governmental rules and laws. If they do not do so, politicians may implement them. The challenge is the right design of such laws and the enforcement of compliance, as the latest crisis in the financial sector has made clear. Like that sector, the sports sector calls for better laws and for better compliance.
The point of departure remains that the most important rules are social and that compliance has to be that, too. Yet, with the overheated trading of players, the dominance of the market of television rights, and the danger of the winner takes it all, which undoes the competitive principle of sports, the design of better rules and laws has become critical.
In an article that will be published in the September 2018 edition of the Global Sports Law and Taxation Report Arjo Klamer, Professor of Cultural Economics, Erasmus University Rotterdam, The Netherlands and I will argue that Sport Federations should maintain as a principle the concept of sporting autonomy. Like the EU lawmakers, we recognize the danger of the imposition of laws on the world of sports. Such laws may undo the social fabric that gives sport its special characteristics. Even so, current practices make clear that certain interventions are necessary.
A good option is the creation of organisations in which (international) governments and sports organizations collaborate to address practices that have a reverse impact on the game and to come up with best practices on how to enforce compliance with rules that were implemented to safeguard the characteristics of sports and fair play. The foundation of the international anti-doping agency, WADA, is a good example of such collaboration that deserves copying.