How game theory can help us design more effective whistleblowing polices for sports (Part 1)

Published 02 October 2019 By: Louis Weston, Sarah Crowther QC

Whistleblower Law

“Whistleblowers1 can play a vital role in protecting the integrity of sports. They have they been responsible for uncovering some of the highest profile cases of corruption in recent years, from the Lance Armstrong case in cycling to the Russian doping scandal in athletics.

That said, the authors are of the view that the prevailing environment can be made significantly more conducive for “Whistleblowing”, i.e. the reporting of a suspected wrongdoing to the relevant authority (which in a sporting context includes match fixing, doping, bullying, abuse, or other breach of the sports’ governing body’s (SGB) rules).

This two part article examines how this might be achieved, with a specific focus on how to design more effective whistleblowing policies. Part 1 (below) is largely theoretical. It looks outside of the law to three interesting scenarios from the behavioural field of game theory to try to give us a better understanding of how decisions are made in difficult circumstances, analogous to that a potential Whistleblower may face when debating whether or not to "report" a suspected wrongdoing. It then identifies ways in which the "rules of the game" might be changed to better incentivise a certain behavioural outcome (i.e. in our case, encouraging more effective Whistleblowing).

Part 2 (available here) is more practical. It first examines the current state of Whistleblowing laws in the UK to ascertain the current "lay of the land" and the lessons we may learn from within the law. It then combines this with the learning from Part 1 to examine why Whistleblowing policies (i.e. the "rules of the game") are necessary and how they might be best drafted or optimised to incentivise effective reporting. Part 2 can be read in isolation for those wanting an overview of key drafting tips.

For more background and information on Whistleblowing in sport, please also see these LawInSport articles:

    1. Whistleblowing in sport – maintaining public confidence in the integrity of sport2; and
    2. Is whistleblowing in sport fit for purpose?3

In addition, the research undertaken by Leeds Beckett University into the athlete’s experience of Whistleblowing is also highly valuable. For a summary and link to the research, please see: Whistleblowing: athletes shouldn't have to choose between their careers and the truth.4

Part 1 - Understanding the difficult decision making position of a potential Whistleblower

In fact, and by definition, Whistleblowing requires both;

  1. a decision to report wrongdoing and then;
  2. the act of reporting itself.

So it requires a positive decision followed by a positive action.

The circumstances in which such a positive decision and a positive action are made deserve consideration; it is not a typical, everyday decision, nor one that is made lightly.

The consideration starts with the basic problem: whether consciously, or otherwise, a decision to be a "Whistleblower" involves evaluating and then judging the consequences of action against inaction on both the Whistleblower and the wrongdoer.

What may be those consequences?

First, the Whistleblower may not have any idea as to what the SGB will do in response to their report.

If we assume that an SGB does not have an established, public and accessible Whistleblowing policy, that decision of a Whistleblower will be made in circumstances of considerable uncertainty. That is obviously so, because most people are not habitual Whistleblowers and will make the decision without personal prior experience. Working on our assumption of "no policy", Whistleblowers will have little or no means by which to predict the reaction of the SGB.

Even with a detailed and well publicised policy, the Whistleblower may not be in a position to predict for certain the reaction of the SGB, because each case and report will merit a different reaction and at any rate a measure of discretion is likely to be given to the SGB. In analytical terms - there is a scarcity of information available to the Whistleblower about the consequences of their actions, in particular, the reactions of the SGB. Their knowledge is imperfect and so the outcome of the positive decision to report will be unknown.

Second, that uncertainty of outcome is not the only issue that affects the ultimate decision. Concerns as to the consequences of Whistleblowing on the Whistleblower exist independent of the SGB’s action on the report and create many and varied barriers to reporting. Concerns a prospective Whistleblower may have include:

  1. A basic concern that by making contact with the SGB the Whistleblower may themselves be at risk of a breach of an obligation under the SGB’s rules (for example, on timely reporting) or a breach of a rule by being involved in the activity (a co-conspirator).
  2. So-called ‘non-disclosure agreements’ or confidentiality clauses in compromise settlements and other contracts which can be complex and carry risk of sanction such as repayment of settlement monies or claims for damages or injunction.
  3. Cultural and social pressures, from the ‘don’t be a grass’ to strong, justified reluctance over discussion of physical/sexual abuse or shame arising from conduct, demand recognition. Sport, particularly team sport, builds relationships of close trust and confidence, courage to break a confidence is not easily built up.
  4. More complicated concerns arise to the Whistleblower from the risk of not being believed, trusted or accepted as telling the truth. Overcoming the barriers may be tolerable but the risk of not being believed is more than a slap in the face, it has been a root cause of years of failings in sex abuse inquiries – a perceived culture of ‘you will not be believed’ is an overwhelming deterrent to reporting5 6.

Finally, a Whistleblower’s decision will take account of the actions and reactions of others to it. The Wrongdoer’s reaction, and the sport’s reaction in general is uncertain and can only, at best, be predicted in general terms. Fear of consequences, particularly unknown consequences is a powerful force.

So, in circumstances of uncertainty, with some barriers to action of variable force, what can a lawyer look at to help inform the writing of a good and effective Whistleblowing policy?

How an understanding of game theory might help

Game theory is a tool of, amongst others, philosophers, economists, mathematicians and logisticians to structure how decisions are made by rational persons by modelling decisions and the consequences of them. It aids an assessment of what the likely or best outcomes of decisions made in circumstances of uncertainty might be. Given that is the circumstances in which a Whistleblowing decision is made, it is an obviously good seam of knowledge to mine. The following section describes three classic “games” that illustrate how decisions are made in various high-stakes situations. We will look at the solutions afterwards.

The Prisoners’ Dilemma

In this game, there are two players. They are both in a prison awaiting trial. Each prisoner knows that the other prisoner is guilty of a crime and each has the evidence to prove it.

The game has these rules. The prisoners cannot communicate, they cannot therefore discuss or plan their decision. Both prisoners have these options: either they could inform on the other, or they do nothing and say nothing.

The consequences of the choices are these: if both inform on each other they both will stay in prison for 2 years, if only one informs on the other then the informant will be free and the informed upon will be imprisoned for 3 years, if both stay silent then each serves only one 1 year.

What would a rational prisoner do: inform or stay silent?

In real terms, this is the issue for any sport where there is a sanction for failure to report, particularly in conduct where a player is involved with that conduct. Do you report and risk being caught? Or keep quite and hope to be free of any risk? So in the case of David John and Jamie Jones for the World Professional Billiards and Snooker Association (WPBSA), Jones failed to report John’s involvement in corruption, John was detected and then reported Jones and at the hearing both John and Jones were seeking to inculpate each other to lessen their sanction.

The Stag Hunt

In this game there are two players. They are starving and need to go hunting for food for their survival.

The hunters cannot communicate, they cannot therefore discuss or plan their decision. The players can either go hunting for a stag or a hare. If they hunt for a stag, then both need to go together otherwise the stag will not be caught. If they hunt for a hare, then only one needs to go and will be able to catch it7.

To make it more interesting, each player must catch at least a hare in order to avoid starvation, but a stag will bring many days of food.

So, if both go hunting for a stag the stag will be caught, but if only one goes stag hunting and the other hunts a hare, then the player who hunts the stag will starve, if both go hare hunting they both eat.

What would the rational hunter hunt: the hare or the stag?

In a sporting context, the occasions where a sport has moved away from investigation into limited conduct by a few individuals to tackling the big fish are relatively few. Imperfect examples are top down with WADA and the Russian Anti-Doping Agency (RUSADA) saga, the Hans Cronje match-fixing scandal and the King Commission, and for those with long memories the Black Sox Scandal of 1919 and the investigation of Commissioner Landis that followed the trials.

 The Volunteer’s Dilemma

In this game there are an infinite number of players.

The players cannot communicate or discuss their decision. The players are stranded. In order to secure their survival, at least one player must volunteer to act to save them. The volunteer (depending on the rules) will suffer a substantial disadvantage in volunteering but will by doing so save all others. Without a volunteer all will suffer a small disadvantage.

For example, 10 people stuck in a snow bound village, one person needs to walk to town to call the snow plough but will suffer frost bite in doing so. Does anyone volunteer?

Having people come forward is not easy, encouraging them to do so even less so.  An example of a sport removing as best it is able barriers to reporting is found in the International Cricket Council’s Amnesty in Sri Lanka in 2019 (discussed in this article) in which in order to encourage all to come forward to report instances of corruption and match-fixing the incentive was offered to waive any historic failure to report for a short time window.

The solutions and key lessons

The games directly demonstrate that the action of another player in the game have consequences, and in circumstances where you cannot know what the other player will do you must make an assessment of their likely conduct.

The games work because the intentions of the participants are not known to the other, the best assessment is that they will act rationally in their best interests. Were it otherwise, and we could barter with the other player, we would all stay silent in the prisoner’s dilemma or go stag hunting.

Instead the solution to the games is that:

  1. In the Prisoners’ Dilemma, the rational prisoner will betray the other to secure the benefit of at most 2 years in prison and perhaps freedom, because staying silent would risk the other player informing on you and a 3 year sanction.
  2. In the Stag Hunt, and the rational hunter will eat only hare rather than risk starvation.

In both cases that is the best outcome (a "Nash Equilibrium"8) for both players in the circumstances.

The Volunteer’s Dilemma is more nuanced; the game depends upon self-sacrifice and rational self-interest, which should lead to inertia and inaction – someone else will step up, why should it be me?

That leads to the position that in practice the more players there are, the more likely it is that there will be no volunteer, because each will think it more likely that someone else will come forward. The outcome of the Volunteer’s Dilemma is also not dependent on a lack of communication; if the rules were changed to allow them to communicate, they would only try to cajole each other to action.

What should be learnt from all of these games is that mutual cooperation should lead to mutual benefit in a society capable of providing the benefit. However, the barriers of cooperation and rational self-interest demonstrated in the games (variously risks of greater punishment to the prisoner, risks of losing out to the hunters and inertia of action to the volunteer) all highlight the concerns and problems that a Whistleblower might have when trying to reach a positive decision to take a positive action to report.

Applying the games to Whistleblowing

How might these games be applied to Whistleblowing?

From the perspective of an SGB, an SGB’s approach to Whistleblowing can be considered as reactions to the problems raised by those games.

In an immediate way the Volunteer’s Dilemma is a model of the problems faced by the Whistleblower. The decision to come forward and ‘blow the whistle’ is the decision to volunteer. The inertias of action, i.e. the disadvantages of doing so, are the disadvantages the Whistleblower as Volunteer will suffer. The reaction of the SGB and its Whistleblowing policy must be to remove the inertias and reduce the disadvantages.

So far so obvious, but what appears is the realisation that to resolve the Volunteer’s Dilemma for the Whistleblower, the SGB must change the rules of the game. What game theory teaches is that the game will have an outcome if played rationally and that each game’s rational outcome cannot be changed other than by changing the rules of the game.

If, for example in the Prisoners’ Dilemma, the rules are changed so that there is no sanction for the first to inform, there will be a rush to inform as there is no downside, only upside.

Changing the rules and circumstances in which the game is played also allows a game to be used in a different way. If instead of a state-imposed period of detention, the negative consequences in the Prisoner’s Dilemma are the consequences of retribution from others, or an adverse reaction from the public or within the sport, the same game can be used to model different concerns.

Conceptually, (and in practice), an SGB can change the rules of the Whistleblowing game and the rewards and losses within it, and a Whistleblowing policy is the means by which to do that.

By modifying the positive and negative outcomes in each game through a Whistleblowing Policy the issues confronting the Whistleblower can be addressed. In these ways:

  1. An SGB might offer protection from (or amelioration of) sanction. The SGB seeks to take away the risk to the informant to encourage him to come forward; if the risk of providing information is lessened there is more likely to be information provided. If the rules of the game are such that by providing information, there is no sanction, then in every case it makes sense to provide information. This is both a reaction to the Prisoners’ Dilemma and to the Volunteer’s Dilemma. Ethically that solution has obvious and serious problems – there must be some sanction – “Lance” cannot be allowed to go free of sanction in cycling if he informs on all around him9. A balance is the best result with the balance struck by ‘plea bargain’, ‘without prejudice discussion’ and tempered sanction. A Whistleblowing Policy must therefore strike that balance calculating that by lessening the risk or disincentive of providing information the greater the likelihood it is that the Whistleblower will come forward.
  2. An SGB should make it easier to report10. This a reaction to the Volunteer’s dilemma, the personal cost of bringing about the general good is reduced or eliminated. A Whistleblowing Policy must have as its aim the ease of making the report and an approach to issues of anonymity.
  3. An SGB can provide protection from retribution by imposing rules and/or anonymity11. This is seen as a reaction to a modified Prisoners’ Dilemma, where the disincentive is not the prison but the retribution of Wrongdoer. Not only is this achieved by anonymity, but also by including in any Rules a prohibition under the Rules of the SGB of taking retributive action directly or indirectly against a Whistleblower. A Whistleblowing policy must reduce by disincentivising taking retribution against a Whistleblower the risks of retribution.

Other measures that we consider an SGB should take can be seen as reactions to both the Volunteer’s Dilemma and the Prisoner’s Dilemma:

  1. Publishing a policy openly and available to all on how the SGB will manage and react to a report from a Whistleblower can address both the inertia of reporting and also alleviate the unknown risks of reporting that drive the decision making in the Prisoner’s Dilemma away from mutual benefit.
  2. For example, if an SGB has a policy which states as its founding principles:
    1. Any report that is made under this policy will be treated in absolute confidence and will be dealt with only by John Smith or Jane Doe at your election.
    2. Neither John Smith nor Jane Doe can share the information (including with the disciplinary department) with any other person without your express consent.
    3. No report will be dismissed out of hand.

It would create a framework that removes the disincentive to the Volunteer and the Prisoner.

Worry later, whether such a statement of principle is practical and/or desirable, the point at present is to demonstrate how the SGB addresses the problems thrown up by the models and consideration of the problems. It does so by changing the rules of the game by imposing an appropriate Whistleblowing Policy.

But what about the Stag Hunt?

Hereto the focus has been on removing disincentives to reporting because in both the Prisoners’ Dilemma and the Volunteer’s Dilemma the driver for the decision is avoiding a negative consequence. The limitation of that approach is that removing disincentives does not give a positive reason to act. In Whistleblowing a positive decision needs to be made, and to encourage positive action requires positive reward.

The Stag Hunt game helps address that problem: No matter how small the hare becomes; rational analysis should always lead to the decision to chase the hare rather than risk no reward at all. It makes no difference to the game if the reward becomes bigger. No rational person will chase the Stag in circumstances of uncertainty where the odds are high enough.

The Stag Hunt game demands consideration of how an SGB needs to model a Whistleblowing Policy to encourage positive action by positive reward; increasing the win rather than decreasing the disincentive, and it depends on the fact that unless the player can be certain of a positive outcome, the minimum will be done.

Using the Stag Hunt game should drive to this conclusion. If the bigger prize (the Stag) in Whistleblowing is the disruption, detection, deterrence and then prevention of wrongdoing, the SGB and the informant must work together to secure that outcome and to ensure so far as it is able that outcome by the SGB and the Whistleblower cooperating to achieve it, rather than letting doing nothing (the Hare) continue.

Our enthusiasm for this game model is based on this thought: a driver to Whistleblowing is that it leads to sanction, disruption, or prevention of action of the Wrongdoer; the wrong from which the Whistleblower has suffered, or perceives others might suffer, or perceives to be a breach of the Rules is capable of being stopped. That is obviously a mutual benefit to the SGB and to the Whistleblower and it is, at the least, a base point for the purpose of any regulation.

Following that analysis should lead to the position to secure a good outcome for both the SGB and the Whistleblower one needs to work out a Whistleblowing Policy that secures cooperation not only by removing disincentives but by promoting the positive benefits. Go after action; do not just discourage inaction.

An SGB will of course have some difficulties and barriers in the manner in which it can encourage. It cannot promise a particular outcome from a disciplinary hearing. It can only promise that it will take matters raised seriously and fairly, but that should not stop it looking for encouragement and a place to look for encouragement for action is in the #Metoo movement.

A comparison to the #MeToo movement

Harvey Weinstein produced many films, some good films, and much money and (now tarnished) happiness for many people, but, whatever the outcome of his trials, his legacy of any worth or value is the #MeToo Movement.

We summarise #MeToo for the purposes of this article this way.

Assume these facts:

  1. For many years, on many occasions, person X has acted improperly.
  2. Person X has always acted in private.
  3. Person X’s victims have been subjected to his improper behaviour alone.
  4. Person X is well regarded and has a position of power over his confederates or victims.

No one who has worked in crime, sport or any area of safeguarding or abuse investigation will fail to see that Person X will be able to get away with the improper behaviour for eternity because no victim or confederate is willing to come forward and be the Whistleblower in Person X’s case.

Why would they? On the assumed facts they will not be believed, and Person X will have the power to take substantial retribution. If Person X has colleagues who act in the same way then on each occasion there is a victim or a confederate the power, the control and the ability to impose or force improper conduct on a confederate or victim is easier, the power of silence is reinforced.

#MeToo destroys this self-perpetuating concealment of bad behaviour. It does it in theoretical terms by turning Person X’s control and coercive power on its head. It empowers the confederate or the victim.

This is how it works:

  1. If a single person’s coming forward is known to the population at large, that first reporter drives others who have fallen victim to X to know these things:
  2. If a single person comes forward to report X’s conduct, the single report is not enough and the reporter knows that and so does not come forward, but
    1. They are not alone.
    2. They will give each other corroborative support.
  1. The more that are capable of coming forward the better, the worse the conduct of X the more persons there are to come forward the more the evidence, the more that can be revealed the stronger the case.
  2. The extent of the Wrongdoer’s misdemeanours becomes the Wrongdoer’s weakness.

In short form, our view is that #MeToo creates the tipping point that means it is sensible, rational and achievable to come forward together and pursue the difficult prize. Using games – it provides the incentive to go after the Stag.

It does so because it removes the barrier to all the games outlined above and in the Stag Hunter game in particular, it removes the uncertainty that there will be co-operation between persons who will have common interests in pursuing action against the Wrongdoer.

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That concludes Part 1. Part 2 (available here ) takes this learning and explains how it can be applied in a practical sense to the drafting of effective Whistleblowing policies.

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Author

Louis Weston

Louis Weston

Barrister, Outer Temple Chambers

Louis is a Barrister practising from chambers at Outer Temple. He is expert in corruption and misfeasance in sport.

Sarah Crowther QC

Sarah Crowther QC

Barrister, Outer Temple Chambers

Sarah Crowther QC has a broad practice with areas of focus in personal injury, private international law, clinical negligence and public law and discrimination cases.