A blueprint for the future of sports governanceKevin Carpenter
On the morning of Wednesday 27 May 2015, FIFA, the world governing body of football, was plunged into the deepest and most high profile crisis in its 111 year history.1 This came hot on the heels of a number of other sports facing governance problems including (but by no means limited to):
- Cycling – the unravelling of the Lance Armstrong doping affair and the publication of the Cycling Independent Reform Commission’s report;2
- Cricket – controversial changes to the division of power with the International Cricket Council giving Australia, England and India far greater control over the world game;3
- American football – the handing by the all-powerful NFL Commissioner of various scandals, most troubling of which being domestic violence by some of its players.4
Sport has over a number of years exhibited on too many occasions chronic failures in its governance meaning many sports governing bodies (‘SGBs’), be they international federations or national governing bodies, are unfit for purpose and have forfeited the right to have a pragmatic attitude to the integrity of sport be it on or off the field of play. Sport can no longer believe it should be treated differently than any other sector in society, that it is in some way unique, because good governance engenders trust between all stakeholders allowing sport to flourish from both competitively and commercially. Only the highest possible standards of ethics and governance can now suffice.
This article sets out what are, in the author’s view, the broad actions that SGB’s need to implement (to the extent that they have not done so already) to reform sports’ governance to a gold standard, which must be the objective in this most important sector of society. All of the areas are underpinned by the guiding principles of: transparency, accountability,5 neutrality, co-operation and proactivity. It is acknowledged that a one-size-fits-all approach is not appropriate for all SGBs and that governance must be tailored to any organisations’ financial and human resources. Therefore, SGBs should consider working with a broad range of stakeholders on some of these reforms to share the cost and risk but at the same time enhance the expertise applied. This could mean stakeholders within the sport, cross-sport, nationally and internationally.
Separation of powers – The powers vested in and exercise by the legislature (the organ of the sport that makes the rules), the executive (the organ responsible for the day-to-day running of the sport) and the judiciary (the disciplinary body that enforces the SGB’s rules) must be clearly separated to ensure legitimacy of the SGB.6 Not all sports have this in place or the lines are blurred. The separation of powers is a fundamental tenet of democracy which applies equally to sport to provide ‘checks and balances’ on the powers exercised by an SGB.7
Appointment of a chairman - To both work alongside and supervise an executive leader of the governing body (i.e. the president). When appointing the chairman there should be no requirement that the candidate has played an active role in the sport previously (see cf. art. 24 par. 1 of the FIFA Statutes for an example of such a requirement8), however there will of course be a published specification and objective criteria for evaluating the candidates.
The addition of independent members to the executive9 - each SGB executive board must have at least 25% specialist non-executive members (‘NEMs’).
Voting by the legislative arm of the SGB changed to enhance transparency and lessen the risk of corruption – When matters reserved to the sport’s legislature occurs an appropriate balance needs to be struck between the need for a representative and democratic process and the need to avoid a concentration of power/influence. For instance, here is an example I have devised which I believe would work for the FIFA Congress which currently has a one vote per member system for its 209 member associations. On matters reserved to the Congress, there could be 60 votes split equally between the six Confederations which cover each of the members. To determine how each individual Confederation’s 10 votes will be cast, their member associations will vote and the percentage split will be reflected in the number of votes. For example, where there are two candidates (A and B) for the Presidency or countries to host the World Cup, the Confederation for Africa CAF holds a vote with the outcome that 36 of their member associations vote A and 18 vote for B. This would translate into CAF’s 10 votes at the Congress being cast 7 votes for A and 3 votes for B.
Specialist committees – A number of specialist committees should be considered for two reasons: to enhance compliance with universal good governance principles and to reflect a broader range of stakeholders in the decision making processes. Such committees should include:
- Athletes Committee – athletes must be integral to the governance of the SGB as without them there is no sport and they have traditionally been under-represented and appreciated. For guidance as to how to devise an effective Athletes Committee an SGB can look to International Olympic Committees' Guide to Developing an Effective Athletes' Commission10 or engage with the recently formed UNI World Athletes union.
- Commercial Committee – includes sponsors, marketing partners and broadcasters.
- Competitions (Organising) Committee
- Equality Committee – representing the interests of under-represented participants in the sport which includes shaping the agenda for the fight against racism, sexism, homophobia and supporting other oppressed groups.
- Finance and Budgetary Committee – responsible for, amongst other matters, budgets being drawn up which will be included in the SGBs end of year financial reports/statements and measured against actual spending.
- Legal, Ethics & Governance Committee – shall provide basic legal advice and opinion on key legal issues relevant to and affecting the sport, undertake initial investigations of any SGB participant in breach of the code of ethics and constantly review the effectiveness of the governance structures of the SGB.
- Match Officials’ (Referees’) Committee - shall implement and interpret the rules of the sport and may propose amendments to the rules to the legislative and/or executive. It shall also appoint the officials for competitions organised by the SGB.<11
- Medical Committee
- Nomination Committee –remit will include finding and proposing suitable NEM candidates for the Congress to vote on.
- Remuneration Committee – they will decide upon an appropriate wage for all senior employees/consultants of the SGB and make recommendations for the legislature to vote on.
- Rules Committee – to make the on-field rules of the sport and provide interpretations on those rules where required.
- Supporters’/Fans’ Committee.
The Chairperson and/or Deputy Chairperson of all committees must be external to the sport and will be appointed by the new Nomination Committee. The Chairman of each committee should also be a voting member of the legislature. The committees deemed appropriate for each sport should have their duties, powers and responsibilities (aka. terms of reference) decided upon by reference to other sports and embrace independent input. To keep costs to a minimum, it should be considered whether the meetings of committees can effectively be held by telephone or via Skype, particularly for international federations/SGBs.
The creation of a fully-fledged integrity unit- An SGB’s integrity unit will be responsible for fight against the two major threats of match-fixing and doping, as well as any other form of cheating. It will have guaranteed funding through a mechanism of a fixed percentage of all commercial and broadcast deals and be staffed with specialists (such people will be sought from law enforcement, the legal profession, academia or any other relevant field) who will design and operate a unit which can identify, investigate and successfully bring cases against those covered by the applicable regulations. The unit will also be responsible for delivering integrity education and training to all participants and developing, documenting and implementing incident (crisis) plans. This unit could be the catalyst for a national platform for integrity issues as stated in the Council of Europe Convention on the Manipulation of Sports Competitions12 and an example of the aforementioned benefit of a number of stakeholders co-operating and working together.
An independent appeals process – Each sport must have an independent appeals process for participants to fully exercise their rights once they have been subject to a disciplinary decision by the SGB’s disciplinary body. Ideally this would be fully independent from the SGB being administered by an external body, for instance internationally the Court of Arbitration for Sport or nationally an organisation such as Sport Resolutions (UK), but as a minimum the SGB should have in place an Appeals Committee whose independence is guaranteed by all of its members being appointed by the Nomination Committee overseen by the Legal, Ethics & Governance Committee .
Salary and expenses policies, monitoring and enforcement – One particular element of governance which has been a significant concern for many stakeholders in sport are the levels of expenses claimed by executives and the general culture of largesse. In response to this a robust published expenses policy must be drawn up by the Finance and Budgetary and Remuneration Committees, monitored by the Legal, Ethics & Governance Committee, and, where required, disciplinary action will be taken for breaching that policy. The new policy will be drawn up on the basis of proportionality and reasonableness in all the circumstances. The Remuneration Committee will be responsible for producing a report containing the salaries and expenses claimed for any executives of the SGB and anyone who sits on a committee which will then be published in the annual financial statements.
Term limits for serving on any committees – An individual can only serve on the legislature or any one of the committees for a three year period. At the end of that term the individual may stand for re-election for one further three-year period. The same time limits apply to the executive leader of the SGB.
Invite outside bodies to audit all aspects of the organisation on an annual basis and where requested for specific issues (i.e. executive leader elections) – Organisations to audit will be determined by a transparent tender process with the invitation open to all. Bodies who it is envisaged may tender include: the International Olympic Committee (using its principles of good governance13), Transparency International, academic institutions, the United Nations and the Council of Europe. The first task put out to tender should be a full risk assessment of all an SGB’s operations with recommendations as to what measures should be introduced to best manage those risks.14
Implementation of transparent procurement procedures – These will be applied to the purchase of all goods and services at all levels of the SGB as procurement as an area of high risk in any sector in any jurisdiction.15
Integrity checks for all committee members16 – An independent integrity check will be carried out, and a report produced, by an organisation not connected to the SGB for all candidates standing for positions on any committee. Each report will then be passed to the Legal, Ethics & Governance Committee who will make a recommendation to the Nomination Committee in accordance with new to-be-drafted ‘integrity and character criteria’ whether or not that person’s candidature can proceed. The Nomination Committee can depart from the Legal, Ethics & Governance Committee’s recommendation but only if it has good reason to do so.
Publication of all rules, policies and disciplinary decisions – A central principle of the rule of law is that each participant within a state must know their rights and any restrictions on those rights imposed by the law. In sport this means that the SGB must have all rules and policies available both in print and online when requested. As regards publication on the SGBs website, these must be easy to locate. As a matter of best practice and transparency all disciplinary and appeal rulings should also be published.
Publication of committee minutes and reports17 – Within 7 days of a meeting of any of the committees being held, including the new Council, the minutes of that meeting will be publicly available on the SGB’s website. The 7 day period is required for the minutes to be reviewed by the Legal, Ethics & Governance Committee and/or an external legal provider and redacted/anonymised only if strictly required by law.
Conflicts of interest register – All conflicts of interest, of whatever nature (i.e. personal or financial) must be strictly declared and noted in the minutes of the relevant committee meeting. These will then be recorded on a central register which will be published on the SGB’s website and updated on a quarterly basis.
Law and/or disciplinary changes to improve and protect the image of sport – It has not only been off-the-field of play where the view of sport globally has been denigrated over a number of years. Participant behaviour in terms of cynical conduct contrary to the best interests and image of sport has reached unacceptable levels. For instance, the abuse of match officials in football, sledging (aka. verbal and sometimes physical abuse between participants) in cricket18 and feigning injury in rugby. Therefore an ad-hoc working group headed by the SGB President and comprising representatives of the Athletes’, Commercial, Media, Match Officials’, Rules and Supporters’ Committees, as well as the disciplinary body, will be formed with a mandate to come up with strong proposals on how to change the nefarious on-field culture in time for the start of 2016 or the next season. These may include amendments to the on-field rules and/or sanctioning regime as well as education programmes.
Reporting mechanism at arms-length from the organisation – The Legal, Ethics & Governance Committee, working with the integrity unit, will be asked to propose the appropriate independent yet secure reporting mechanism open to all stakeholders to report any integrity concerns be they related to corruption by members of the SGB, match-fixing, doping or bribery, for instance.
Better working relationships with sovereign national governments - The need to change sport’s approach to international relations encompasses a number of issues but chiefly stems from the abuse of the principal of the autonomy of sport. Instead of an interventionist approach, sport must work closely with national governments and respect the sovereignty of states. For some of the larger SGB’s, one such key area is to remove all of the onerous demands for countries who express an interest in hosting an international tournament, for example the current insistence that the SGB is largely exempt from paying local taxes in the host country. Each SGB should also openly and actively support any proposals in the country in which they are based (and elsewhere if applicable, for example Switzerland19) to introduce legislation and regulation which acts as a supervision and accountability mechanism.
There are three reasons (or a combination of them) why inappropriate conduct within any organisation occurs: personal greed, a breakdown in systems and a lack of ethical and moral culture.20 Sport has regrettably become beset by the perfect storm of all three. That is not to say that there is not a lot of good work done by SGBs, and many good people working for them, however countering those three issues can no longer be paid lip service and the strategy I have outlined above are the key actions that will restore the faith of all stakeholders in the leadership and governance of sport across the world. To complete such comprehensive and wide ranging cultural change will take years and not months, but it is imperative these actions are put into action as soon as possible and persevered with.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: American Football | Court of Arbitration for Sport (CAS) | Cricket | Cycling | FIFA | FIFA Statutes | Football | Governance | International Cricket Council (ICC) | International Cycling Union (UCI) | National Football League (NFL) | Regulation | United Kingdom (UK) | United States of America (USA)
- Why should sports governing bodies take allegations of corruption seriously? Lessons from the FIFA investigations
- FIFA arrests: it’s all kicked off, but what’s next? A legal perspective
- “Watchgate”- can sports officials be bribed without knowing it?
- Can FIFA legally publish the Garcia corruption report?
- Combating match-fixing in sport - a guide to the Council of Europe’s Convention on the Manipulation of Sports Competitions
About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.