Is whistleblowing in sport fit for purpose? Part 2 – Analysis and recommendations

Published 16 September 2016 | Authored by: Chris Davies, Jack Mitchell

This two-part article explores whether the existing cultures and regimes of whistleblowing in sport are fit for purpose.

Part 1, available here, explains the importance of whistleblowing in sport and sets out the current legal protections offered in cycling, football and athletics. 

Part 2 below asks if enough is being done to protect and assist whistleblowers, and explores what further steps can be taken to promote effective whistleblowing in sport in the context of the Lance Armstrong1FIFA2 and RUSADA scandals3. Specifically, it looks at:

  • Is enough being done to protect and assist whistleblowers?
  • What more can be done to encourage whistleblowing: conclusions and recommendations from the authors. 

 

Is enough being done?

The three sports discussed in Part 1 - cycling, athletics and football – have all experienced recent scandals that relied upon the evidence of whistleblowers within the sports. In all three examples, the vast majority of the whistleblowers (with the exception of a few brave individuals) only came forward once the malpractice had been uncovered and many years after the event.

In relation to the UCI, whilst the steps taken by the 11 "courageous" teammates4 of Lance Armstrong ought to be applauded for speaking so candidly about the doping practices5 and we should recognise the apparent coercion that took place6,  it is worth noting that many (but not all) of the whistleblowers only came forward to give evidence once the cat was out of the bag and many years after the practices had begun - the allegations related to the years 1998 to 2009 and only in 2012 USADA decided it had enough evidence7. The USADA Report noted the number of enablers (including team officials, employees, doctors8 and cyclists) and that "twenty of the twenty-one podium finishers in the Tour de France from as early as 1998 through to 2005 have been directly tied to likely doping". This must be seen as a failure of the integrity within the sport which could have been stopped earlier had whistleblowers been given the right protection to encourage them to come forwards, particularly given the scale of the doping operation and the involvement of so many individuals. 

In relation to the Russian state-backed doping scandal, Mr Vitaly Stepanov, a former employee of RUSADA and his wife, Yuliya Stepanova, a former 800m runner exposed widespread doping practices within RUSADA. Mr Stepanov only came forward and spoke with American CBS newsmagazine’s, 60 Minutes, and The New York Times about systematic doping and, specifically, doping at the Sochi 2014 Games by Russian athletes9 after the initial revelations by German Broadcaster, ARD, from the two whistleblowers10 and after the Pound Report11.

In that case, the Stepanovs12 (ignoring any legal or other protections) fled to America fearing for their lives following the recent unexplained death of two of Mr Stepanov’s former colleagues13 just three months after WADA released its initial Report by Richard Pound revealing state-backed doping cheating14. Physical intimidation and threats have often been a response to whistleblowing internally (both in sport and elsewhere) but this shows the level of fear within which some whistleblowers must operate. If we are to hope whistleblowers will do the right thing, the least sport can do is to provide the mechanisms to protect them. Again, whilst the whistleblowers themselves should be applauded, there is clearly a failure in the whistleblowing infrastructure given the scale of the doping practices and the fact that it took so many years for the whistle to be blown. The safety of whistleblowers should be protected and it is for governments and governing bodies to ensure their safety.

In relation to football, the longstanding corruption at the top of FIFA (now subject of an FBI investigation15 and Swiss criminal investigation16) was on-going for years and apparently many were aware of the practice.

All of the above suggests that more can be done to change cultures to encourage and protect potential whistleblowers so that they report malpractice at an earlier stage. The very fact that these events were on-going for such a long period of time and that so many appear to have been aware of the events without any substantive whistleblowing evidence (with the exception of a few brave individuals) is damning for the integrity of sports.

In addition to the problems in uncovering these scandals (and that word is used appropriately in this context), sports must ensure that they act on the information given to them by whistleblowers. In so doing publicly, this will further encourage individuals to come forward knowing that their concerns will be taken seriously and that the risks they have taken have not fallen on deaf ears. By way of example, the IOC’s failure to apply a blanket ban on all Russian athletes for the Rio 2016 Games17 has been heavily criticised by WADA18 (although the IPC have applied a blanket ban at the time of writing).

 

What more could be done?

Conclusions

The authors advocate that each sport must provide a clear process to enable whistleblowers to come forward with their concerns. Sports should look to other sectors with greater experience of successfully harnessing the benefits of whistleblowing and implementing mechanisms to do so. In particular, we would make the following recommendations: 

  • Each sport must provide the necessary administrative support to enable disclosures to be investigated and where necessary action taken. If we take the lead from the NHS or FCA, appointing someone in the organisation who is responsible as a Whistleblowing Guardian or Champion, with specific responsibility to report on the effectiveness of any procedures, together with oversight of any reporting procedure, is a good start.

  • These procedures should be simple to use, with information triaged upon receipt and policies made clear so users understand that they can make contact confidentially, and that this will be maintained as far as is possible, to protect them from victimisation. Whilst a procedure could accept anonymous information, every effort must be made to encourage those making disclosures to do so confidentialy, as anonymity is the cloak of the malicious and it is difficult to obtain further information from someone unknown, or perhaps relevant to the whistleblower – to provide them with protection. 

  • Each body should make it clear that the victimisation of a whistleblower will result in those responsible being punished. Whether those responsible for the victimisation of a whistleblower should be punished by their expulsion or suspension from the sport should be carefully considered (noting that expulsion is provided for by the IOC), but in some instances mere expulsion may be insufficient (or may be ineffective if the perpetrator is not a participant in the sport). Bearing in mind the financial damage that may be caused to a whistleblower by their victimisation, it would be proper to consider any scope for the imposition of financial penalties - arising from victimisation. Each body should carefully consider whether it should provide a mechanism to make those responsible for any losses caused by their wrongful conduct liable to the whistleblower. Why should the sport that properly protects the whistleblower be liable for the costs of that indemnity when the person responsible is only expelled? If we consider that the IOC provides for protection for “unjustified treatment” and “adverse employment consequences” it appears that a tortious approach to losses is envisaged, which could include compensation for injury to feelings or damages assessed on a compensatory basis. The potential losses could be significant and perhaps shared by the perpetrator.

  • Any policy must not be restricted to one area of vulnerability, such as doping. The policy should be open to all people (not just those within the sport), but particular emphasis should be provided to potential sources, be they participants, coaches, support staff or officials.

    Whistleblowers should be encouraged to raise their legitimate suspicions and not to wait until they have substantive proof of wrongdoing The IOC has provided that no protection will exist for disclosures that have not been made in good faith or where there is not an “honest belief”, appearing to draw from the same tests as used in the Public Interest Disclosure Act 1998. Whilst that test has since changed to remove good faith as a condition precedent to protection, there remains scope to ensure that malicious allegations are not protected. Whilst some advocate that malicious allegations should likewise lead to action, the reality is that if too much emphasis is placed in a policy it will more likely act to discourage disclosures then prevent malicious conduct. Whilst disclosures based on a mere suspicion may make it harder to act, it will enable further action to be taken or consideration as to what further evidence is required and enable communication to continue with the whistleblower. By way of example, the FCA records all instances and maintains a “whistleblowing intelligence log”. Some organisations have implemented a screening mechanism to balance against vexatious reporting, however, we consider the focus should be on the factual basis of the allegation and the ability to investigate those facts. To dismiss a concern because it is anonymous could have unfortunate consequences. Any procedure that encourages the user to give information confidentially, when accepted by the informant, will enable them to be protected whereas it is practically impossible to protect an anonymous source.
  • Whilst there may be specific matters of confidentiality to bear in mind, the whistlebower should receive confirmation that their disclosure will be kept confidential, which should be maintained as far as is legally possible within the process, to ensure they feel safe in raising their concerns. Interestingly, within FIFA’s procedure this is the stance, whereas the IOC states clearly that the users’ identity will not be disclosed, beyond those investigating the concern, without explicit consent. Of the two, the IOC’s procedure is the clearest and likely to encourage users to seek confidentiality. Indeed, the IOC’s roadmap when considered by Kevin Carpenter on 13 May 2015 in LawInSport notes “an anonymous reporting system means that the SGB and/or law enforcement body may not be able to follow-up with or check the veracity of the information provided by a participant, or indeed any other person outside the sport (i.e. a fan or member of the public), and the SGB cannot monitor whether participants are complying with their duty to report which is present in a number of SGBs rules/regulations”. There is precedent for confidential reporting and the use of confidential evidence should charges be brought up to and including a trial by the Court of Arbitration for Sport (“CAS”) in FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v UEFA (CAS 2009/A/1920). A quick analysis of the approach to such evidence in criminal matters is insightful. In Europe, the case of Kostovski v Netherlands (1990) 12 EHRR 434, the European Court of Human Rights considered (at [42] and [44]) Article 6 of the European Convention on Human Rights and held “The Convention does not preclude reliance at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction … is a different matter”, but a subsequent case held that evidence from anonymous witnesses can be relied upon, where justified, provided steps are taken to balance this so as to protect the defendant in Doorson v Netherlands (1996) 22 EHRR 330. Within the UK, considering the use of such evidence in a criminal arena, the House of Lords reviewed the use of anonymous witnesses in Davis [2008] 1 AC 1128, which led to the passing of the witness anonymity provisions in the Coroners and Justice Act 2009, (sections 86 to 90) which specifically enable witnesses to give evidence anonymously.

  • The process should ensure that those raising concerns feel that their concerns have been taken seriously.The importance of feedback and care to ensure they are aware as to what steps have been taken as a consequence of their disclosure will help them feel engaged in the process and that they have been listen to and taken seriously.

  • Each body should have at least two members at Board level who have responsibility for the oversight of the policy and to ensure that matters are reviewed and the effectiveness of the policy monitored at least biannually.

  • Each governing body must report annually on the effectiveness of its whistleblowing procedures and look to learn from its experiences, whilst at the same time publicising the important role any whistleblowers have had in maintaining the integrity of the sport. The lack of any communication is more likely to be a result of a lack of awareness, than a clean sport.

  • Overarching bodies, responsible for many sports, such as the IOC (or for many bodies responsible for many organisations under one sport, such as FIFA) should consider their responsibilities and likewise ensure not only that they have an overarching whistleblowing policy, but that those falling under their responsibility have their own whistleblowing policy but that therein there is a specific right for members to raise matters direct with the overarching body, be they the IOC and or FIFA as applicable. The encouragement to raise matters first directly however should not be used as an obstacle to prevent the overarching body from acting upon the information.

  • The overarching body (IOC or FIFA for example), should make it a condition of all sporting bodies working with them, to have in place effective whistleblowing procedures. Whilst not all sporting bodies will have substantial resources available to it, such as FIFA, all sporting bodies will have someone who is capable of assuming this responsibility, even if it an additional role provided to one person, whose contact details are provided within the policy.

  • Each sport should consider adopting a procedure to enable whistleblowers to receive compensation for any victimisation arising as a consequence of their disclosures.

  • There needs to be explicit protection in the event that a whistleblower makes an honest error in raising their concerns.This is preferred, in our view, so as to encourage the provision of information as opposed to warnings that the dishonest use of the procedure will attract punishment.

  • There should be some mechanism within each sport to enable whistleblowers to seek to stop victimization from starting, when it is threatened, but before it has occurred.

  • Each sport should ensure that no person can enter into a contract prohibiting their disclosure of wrongdoing or any conduct which undermines the integrity of the sport.

  • Each sport may consider a jurisdiction wherein legal rights and obligations can be enforced. The procedures for claims to be made needs to be clear and accessible.

  • Each sport should ensure that all members of that body enter into a contractual obligation to always act to maintain the integrity of the sport and for each member to confirm that they will raise any conduct that undermines the integrity of the sport through the whistleblowing procedure.

It is only once critical information is made available to governing bodies that any sport can take action to prevent the integrity being impugned before such behaviour becomes endemic whether in a team, a national team or in the upper echelons of the governing body itself.

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About the Author

Chris Davies

Chris Davies

Chris is a commercial litigator in Burges Salmon's dispute resolution team with specialised experience in sports sector disputes. He has advised players, agents, clubs, national and international associations and governing bodies.

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Jack Mitchell

Jack Mitchell

Jack Mitchell called to the Bar in 1994, is a Barrister at Old Square Chambers. OSC has a reputation for success in football and rugby litigation issues, and is a popular choice for claimants and defendants in all sports including athletics, boxing, motor racing, horse racing and cycling.  OSC advise players, coaches, agents, physiotherapists and team healthcare professionals on all employment and contractual matters. More information can be found at https://www.oldsquare.co.uk/practice-areas/sport .

 

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