Sport and politics - a legal angle

Published 19 April 2012 By: Charles Maurice

Sport and politics - a legal angle

A modern take on Beauty and the Beast? Certainly, the relationship between sport and politics is not an easy coalition by anyone’s standards, but given the commercial age in which we live, the distinction between the two bears constant examination. Of particular interest is the legal basis on which sport’s governing bodies attempt to separate political interference from the sporting sphere. This article looks at this issue in the context of football and FIFA. 

2012 has seen at least two high profile political interventions in world football, to which FIFA has reacted by invoking the provisions of its governing statutes, and it is these instances which set the backdrop for this article. Firstly, the Egyptian Port Said stadium disaster which led to the sacking of the board of the Egyptian Football Federation by the Egyptian government and the subsequent FIFA campaign to reinstate the board, and secondly FIFA’s recent statement on rumours that the Argentian Football Federation (“AFA”) is to change its name to Crucero General Belgrano, after the Naval ship sunk by British forces in the Falklands War. These have both shown that when pushed FIFA is able to take a hard line with its constituent member organisations. “FIFA bashing” has become de rigeur in the UK of late, and it is easy to let that shape a view of FIFA’s response, but looking at the consistency behind these decisions, there is a trend apparent that warrants further comment. 

A question of jurisdiction

FIFA’s response in both cases has been to maintain its party line that politics has no place in sport, which is an almost verbatim quote from Article 3 of the FIFA governing statutes. As tested by governmental reaction post 2010 World Cup (Nigeria and France spring to mind), FIFA’s jurisdictional recourse is against its member associations through the dual threats of suspension and expulsion set out in its governing statutes. In spite of this, it is easy to lose sight of how little additional weight FIFA carries, at least on paper, outside of enforcing its rules against its members. The FIFA statutes are in themselves a set of industry specific regulations which have little legal application outside of the game of football. What FIFA must therefore rely upon to bring its opinions to bear on the world more generally, is the weight of moral force that accompanies the world’s most popular sport. 

Here, FIFA itself treads the fine line between sport and politics and the political intent behind its own actions is often hard to deny. A lack of legal jurisdiction to make or enforce a decision or comment against third parties suggests that the only influence it can exert is on a political basis and via engagement with the politicians from which it attempts to distance itself. This is, of course, nothing new. FIFA and its constituent federations worldwide spend a vast amount of time and money on attempting to bring about changes to laws on which they otherwise would have no influence. A good example of this is UEFA’s 2008 campaign to restrict the transfer of players under the age of 18 - essentially a lobbying exercise to change EU employment law. A laudable notion perhaps (and Michel Platini’s rhetoric invoking Dickensian exploitation of child labour did nothing to dissuade this) but questions were and still are raised over whether this is an example of a sports governing body ignoring its own rules for the good of its own business. If sport should be free from politics, it presumably should follow that politics should be free from sport – the line is a blurred one.

A difficult position

Legally therefore this places governing bodies in a difficult position – politics invariably has the final say when it comes to deciding the really big issues in sport, and it is this that risks devaluing the influence of the governing body. One of the biggest challenges facing the sporting community (and the sports lawyer by proxy) in 2012 is the issue of morality, reputation and legal compliance within the sporting arena, especially considering recent highly publicised racism rows and betting scandals. These issues threaten the governing bodies almost as much as the integrity of the sport in question, as they are (rightly) areas where governments have assumed the mantle of authority. For example, John Terry’s ultimate fate is largely out of the hands of the FA, and it must wait for the outcome of his court case before understanding what their response will need to be. It is easy to see how the FA’s response might look somewhat secondary when it eventually does come.

It is this uneasy relationship between political and legal systems that means that a governing body must pick its battles carefully, or at least this is one explanation. Alternatively, these bodies take an inconsistent approach because in some instances it suits them to. It is worth turning again to the FIFA statutes to illustrate this. Article 13 (g) states that members of FIFA have the obligation to “manage their affairs independently and ensure that their own affairs are not influenced by any third parties” and violations of this provision may lead to sanctions, even where the third party influence was not the fault of the member. This is also confirmed by Article 17.

Clear enough. What is less clear in practice is whether this applies to the FIFA voting processes such as those relating to the World Cup and the election of its President. Article 7 states that “Officials” (which, relevantly, includes board members, committee members and other persons responsible for technical and administrative matters in FIFA) must “observe the statutes, regulations, decisions and Code of Ethics of FIFA in their activities”.  So it would appear that these provisions bind the likes of Mr Blatter and the other members of the FIFA hierarchy. Supporting this view is the FIFA Code of Ethics which acts as a moral compass to guide Officials in their FIFA business and includes obligations on Officials to disclose conflicts of interest of which they become aware. The disclosure of Secretary General Jerome Valcke’s astonishing email admitting his private view that Qatar “bought” the 2022 World Cup, for example, raises questions over whether Mr Valcke should have been disclosing this information in accordance with the provisions of the Code of Ethics. Explanations as to why he neglected to do so have not been convincing.

This should not be viewed in isolation. The FIFA statutes and governing rules exist (as we are repeatedly told) to safeguard the spirit and ethics of world football. Any accusation of an arbitrary approach by FIFA towards its own compliance with the rules that it has set for its members therefore damages its own legitimacy . This is the premise behind most of the reputational issues  with which FIFA is presently faced, and is also particularly evident in the way in which the FIFA President is appointed. A 2011 report commissioned by FIFA compared the FIFA President to the CEO of a multi-national company and highlighted how the procedures that corporations of an equivalent size have in place to appoint a CEO and benchmark his actions are lacking within FIFA. As the report points out, a lot of power is placed with one individual, which is in itself a situation that will always attract unfavorable comment.

A natural reaction?

Perhaps this is simply a reaction to an ever growing trend and one which governing bodies such as FIFA need to make to maintain their legitimacy and members’ interests. High profile sport brings high profile investment – this is something which we cannot escape. Put simply, the governance of sport is necessarily high profile as a result, and in order to protect and underline its jurisdictional power over its members, FIFA and other equivalent organisations need to flex their muscles from time to time and pull their members into line. 

It is the inconsistency in application though that irritates. Returning to the Argentinian example highlighted at the beginning of this article, FIFA has seemingly ignored that the AFA is largely government-funded, so for FIFA to pull the AFA in line for changing the name of their premier division (as potentially inflammatory as that change may be to British readers) seems all the more inconsistent when the underlying financial influence of the government over the AFA is arguably the root cause. However, maybe this should be seen as a pragmatic response to a difficult situation: FIFA has jurisdiction to force the AFA to comply with its statutes. However it has no ability to force the Argentinian government to do anything, and could end up looking rather  foolish if it tried to do this through footballing channels. The distinction then is a subtle, but important one, and probably will only be properly tested when a FIFA edict is challenged by a government with an agenda to pursue – as so nearly happened before FIFA backed down on its stance on the presence of Poppies on England shirts last November.

Irrespective of a governing bodies’ stance on outside influence in a sport, its role  to represent the interests of its members and its sport to the public. This can only be achieved through a combination of it having the legal basis on which to represent these interests combined with a legitimacy that comes from making key decisions in a way which does not rancour with those observing. Recent memory is littered with examples of FIFA getting this latter aspect wrong. If FIFA is to regain its tarnished reputation, it needs to focus on increasing transparency and the consistency of its responses. A pragmatic revision of just what it considers to be third party influence and political motivation on an internal and external basis would also not go amiss, especially as the spotlight turns on sport in 2012.

SOURCES

Pieth, M “Governing FIFA”, September 2011

FIFA Statutes August 2011 Edition

FIFA Code of Ethics 2009 Edition

FIFA Disciplinary Code 2011 Edition

Author

Charles Maurice

Charles Maurice

Charlie is a senior associate at Stevens & Bolton LLP and specialises in the sports, media and entertainment sectors. Charlie advises on a wide range of sporting issues and has particular experience in the motor racing and football industries. 

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