An assessment of the Council of Europe’s recommendations on the promotion of good governance in sportLeigh Thompson
On 12 December 2018 the Council of Europe’s Committee of Ministers issued a set of recommendations for member states on the promotion of good governance in sport.1 The recommendations set out a range of actions Council of Europe member state governments are encouraged to take to improve sports governance – both domestically and internationally – with a particular focus on tackling corruption.
This article examines:
The role and significance of the Council of Europe (CoE) as an international entity;
The role and activities of the CoE in the field of sport;
The Committee of Ministers recommendations on the promotion of good governance in sport and;
The wider implications of the recommendations for the future governance of sport.
The Council of Europe as an international entity
Established in 1949 under the London Treaty in the immediate aftermath of the Second World War, the CoE is an intergovernmental organisation that exists to promote human rights, democracy and the rule of law.2
The CoE is therefore very much an international organisation and is entirely distinct from the European Union and its associated institutions, notably the European Council and the Court of Justice of the EU (CJEU).
The cornerstone of the CoE’s work is the European Convention on Human Rights (ECHR), an international treaty which establishes a series of fundamental rights, including the rights to life and respect for private and family life and – important in the sports law context – the right to a fair hearing.4 The ECHR also prohibits torture, slavery and forced labour as well as any discrimination in the enjoyment of its rights and freedoms.5 All CoE member states are signatories to the ECHR and are subject to judgements of the European Court of Human Rights (ECtHR) which rules on alleged breaches of the rights and freedoms enshrined in the convention.6
In terms of structure, the CoE has five main constituent bodies:
The Parliamentary Assembly (PACE) - is the CoE’s deliberative body. The PACE comprises 324 members drawn from the national parliaments of member states.7 While it cannot pass binding laws, the PACE plays an important role in setting the CoE’s agenda – it can formally demand action from member state governments in the form of recommendations, influence the development of national laws by proposing new treaties, request legal opinions on the laws and constitutions of member states and, if necessary, sanction a member state by recommending its exclusion or suspension.8 It also has formal responsibility for electing the CoE’s Secretary General, the Commissioner for Human Rights and judges to the ECtHR.9
The Committee of Ministers - is the CoE’s decision-making body and is comprised of the ministers of foreign affairs of CoE member states (or their permanent representatives).10 The Committee of Ministers adopts binding conventions and formally responds on behalf of member states to resolutions made by the PACE. In addition, the Committee decides on CoE policy and approves its activities and budget.
The European Court of Human Rights - is the permanent judicial body. Established in 1959 under the ECHR, the court rules on individual or state or applications alleging breaches of the rights enshrined in the convention.11
The Congress of Local and Regional Authorities - is responsible for strengthening local and regional democracy in CoE member states and facilitating dialogue between national governments and local and regional authorities, through cooperation with the Committee of Ministers.13
While beyond the scope of this article, the CoE is also responsible for a wide range of other international conventions and related activity in the fields of human rights, democracy and the rule of law.14
The role and activities of the Council of Europe in the field of sport
Much of the CoE’s activity is carried out through partnerships of member states known as partial agreements. In instances where activity also involves non-member states, these are known as enlarged partial agreements.15 The advantage of enlarged agreements of this sort is that they enable a much wider group of non-member countries to be involved in the CoE’s work in particular fields.
“…provides a platform for intergovernmental sports co-operation between the public authorities of its member states. It also encourages dialogue between public authorities, sports federations and NGOs. This contributes to better governance, with the aim of making sport more ethical, more inclusive and safer.
EPAS…[also]…develops policies and standards, monitors them and helps with capacity-building and the exchange of good practices.” 17
The EPAS encompasses 38 countries drawn primarily from the core EU member states but also includes Switzerland, Russia, Morocco and Israel.18 Interestingly, the UK is not a member of the EPAS despite being a member state of the CoE. Similar to structure of the CoE itself, the EPAS has three statutory bodies which enable it to carry out its activities, including a consultative committee comprised of organisations from the sport movement, athlete representative bodies and NGOs.19
Prior to the formal establishment of the EPAS, the Council of Europe had already developed a number of influential conventions and standards for sport in a wide range of areas including the European Sports Charter20, the Code of Sports Ethics21, the European Convention on Spectator Violence22 and the Anti-Doping Convention.23 The EPAS monitors member states’ compliance with a number of these conventions and standards and also develops recommendations for adoption by the Committee of Ministers.24
The most recent and high-profile achievement of the EPAS has been the development of the Convention on the Prevention of the Manipulation of Sports Competitions (the "Macolin Convention").25 The Macolin Convention is to date the only binding international instrument of its kind which places obligations on signatory governments to assist public and private entities in their efforts to tackle the manipulation of sports competitions. Over 30 countries have now signed the convention including the United Kingdom.26 While a fuller examination of the Macolin Convention is beyond the scope of this article, two excellent LawInSport summaries can be found here and here27.
The EPAS also organises Conferences of Ministers of Sport which enable formal dialogue between member state sports ministers on topics including match-fixing, human rights in sport, gender equality, corruption and governance.28
More broadly, the EPAS engages with a wide range of external stakeholders to further its objectives, including the European Commission, UNESCO and INTERPOL as well as sporting organisations such as the World Anti-Doping Agency (WADA), the International Olympic Committee (IOC), FIFA and UEFA.29 The EPAS also undertakes activities designed to tackle specific challenges and is currently leading a task force under the auspices of the International Partnership Against Corruption in Sport (IPACS) to improve compliance with good governance principles to minimise the risk of corruption.30
The CoE also has a significant influence on sport – and indeed the development of sports law – through judgements issued by the ECtHR which is from time to time asked to rule on the compatibility of sports rules with the fundamental human rights enshrined in the ECHR. Most recently, the court has delivered two important rulings on cases brought by athletes alleging infringements of their right to privacy and right to a fair hearing.31,32 While a full examination of these cases is beyond the scope of this article, two excellent LawInSport analyses can be found here and here33.
The Committee of Ministers recommendations on the promotion of good governance in sport
The Committee of Ministers recommendations set out ten specific actions member state governments are encouraged to take to improve sports governance:
“1. Ensure that their national legislation effectively allows for investigation, prosecution and mutual legal assistance, including police and judicial co-operation, in cases of corruption offences in sport;
2. Apply a zero-tolerance policy regarding corruption in sport;
3. Ensure that the competent authorities use the relevant anti-money laundering and anti-corruption provisions and mechanisms to prevent and respond to cases in the field of sport;
4. Monitor directly or indirectly progress towards the implementation of good governance principles by their national sport movement;
5. Consider introducing compliance with good governance principles as criteria for the awarding of public grants to sports organisations and for sports events;
6. Encourage the leaders of their national sport movement to comply with and actively promote good governance principles while acting within the framework of international sports organisations;
7. Encourage sports organisations acting on their territory to:
- apply the principles of democracy in their decision-making and operations, and further strengthen their transparency, inclusiveness and democratic ways of functioning, as well as their accountability;
- develop and implement appropriate good governance measures within their own regulations and procedures;
- foster a good governance culture through educational initiatives;
- achieve a balanced representation in the diversity of their members – including gender equality – within their decision-making processes;
- co-operate with independent experts reviewing the good governance of sports organisations, where appropriate;
- publish the results of any self-assessment on good governance;
- establish external evaluations and audit policies, as appropriate;
- share information on corrupt practices with law-enforcement authorities;
8. Encourage co-operation with all key stakeholders to address any kind of corruption in sport;
9. Prevent conflicts of interest within bodies – public or private – which are in charge of both elite sport performance and sport integrity, particularly as regards the fight against doping and the manipulation of sports competitions;
10. Make sure that whistle-blowers benefit from effective protection, and in particular are covered by national frameworks for protection, as defined in Recommendation CM/Rec(2014)7, irrespective of their contractual relation with their organisation.”34
While it is not possible to provide a comprehensive analysis here, what follows is a brief assessment of some of the key recommendations and their potential application in the context of recent domestic (UK) and international developments in sports governance.
Of particular significance is Recommendation 1 which seeks the introduction of national legislation to support effective investigation, prosecution and cross-border cooperation in sports corruption cases. This is without doubt aimed squarely at enabling a more robust and coordinated response to corruption by officials of international sporting organisations who have, until relatively recently, been viewed as operating beyond the reach of the law.35
Indeed, the Explanatory Memorandum to the Recommendations notes that a review by the CoE’s own Group of States Against Corruption (GRECO)36 found existing national anti-corruption laws to be deficient, notably:
“…the scope of application of criminal provisions on private corruption is sometimes limited to business activities. Therefore, sport organisations - which are often established as non-profit associations - may fall outside the remit of these provisions.”37
Of course, it remains to be seen whether governments do in fact enact effective anti-corruption legislation, but it seems reasonable to think CoE’s focus on this area will maintain political pressure for further reform in territories which have historically taken a benign approach to the international sporting bodies and officials they host.38
From a UK perspective, the Bribery Act 2010 is sufficiently wide ranging to catch corrupt conduct involving officials within sports bodies.39 The Act also has extra-territorial effect: it applies to conduct which takes place in the UK and to conduct overseas where such conduct would constitute an offence in the UK and where there is a "close connection" to the UK.40 However, the use of the legislation in a sporting context is not straightforward; the UK’s Serious Fraud Office did consider its potential application to the 2015 FIFA allegations but could not find a sufficiently strong link to the UK to take further action.41
More broadly, while Brexit should not affect the UK’s continued involvement in the CoE as a whole, the UK’s exit from the EU may make it more challenging in practice to fulfil those elements of Recommendation 1 relating to police and judicial cooperation on criminal matters.42 Recommendation 5 encourages member state governments to tie the use of public funds more closely to improved governance and reflects the approach already adopted domestically in the UK through the Code for Sports Governance which makes the receipt of public funds by sports bodies conditional on compliance with mandatory governance standards.43 While it is perhaps too early to judge the overall success of this approach, it has been the catalyst for far-reaching governance changes in a large number of UK sports.44
Recommendation 5 also identifies compliance with good governance principles as a precondition of awarding of public funds for sports events. Analogous to the approach underpinning Recommendation 1, this is aimed at bringing member state governments’ financial (as opposed to legislative) influence to bear on those international organisations seeking public support for the hosting of major sporting events.
Recommendation 9 encourages member state governments to take steps to prevent conflicts of interest arising between the pursuit of performance on the one hand and the protection of integrity on the other. Importantly, this conflict arises not only in private sports bodies which often have responsibility for both promoting and policing sport but also in public bodies charged with delivering elite sport success whilst overseeing the integrity of the sports they fund.
Recommendation 9 has particular resonance in light of recent reviews of allegations of bullying, harassment and anti-doping violations within the UK high performance sport system and the sexual abuse of young athletes by former USA Gymnastics doctor Larry Nassar.45,46 Both illustrate the very real dangers which arise when responsibility for funding, performance and oversight are too closely intertwined. Governments thus have an important role to play in ensuring effective checks and balances are in place to address potential conflicts of interest, including through the operational independence of bodies charged with investigating and prosecuting allegations of wrongdoing.47
Moreover, the recommendation reflects the fact that governments (or their agencies) often set the overarching "rules of the game" which drive organisational and individual behaviours within the elite sport system. For example, tying funding too closely to narrow measures of success such as medal targets creates a risk of incentivising individuals to push the boundaries of integrity.48
Recommendation 10 is also highly relevant in the domestic context since the legal protections afforded to whistleblowers are currently only available to workers making a protected disclosure under the Public Interest Disclosure Act (PIDA) 1998.49 In practice, elite athletes in Olympic sports are not considered workers and in all probability most disclosures relating to alleged breaches of sports rules or codes of conduct would not qualify for protection under PIDA.50,51 As such, the UK’s existing legislative framework would appear to fall short of the bar set in Recommendation 10.
Internationally, while some progress has been made, many sports still do not have consistent or effective mechanisms in place to encourage whistleblowers to come forward and to protect them when they do. Different sports have adopted a variety of approaches to confidentiality, the prevention of victimisation and the provision of adequate redress for any such victimisation should it occur.52 Governments therefore have an important role, through the legislative and financial leverage they possess, in promoting more robust protections for whistleblowers in sport.
Ultimately, while it remains imperative sport takes responsibility for its own governance, delivering sustained improvement also requires concerted action by governments. The Committee of Ministers recommendations thus provide the basis for a more consistent and coordinated international approach to sports governance by public authorities.
The wider implications of the recommendations: towards an international convention on good governance in sport?
On a superficial level, the Committee of Ministers recommendations might be considered a fairly dry statement of policy with limited impact. Indeed, the recommendations themselves are merely advisory – they do not bind member states – and are drafted in such a way as to encourage rather than prescribe action.
However, as is often the case with such policy pronouncements, it is necessary to consider the recommendations within a broader context to discern their true significance. The preceding discussion has hopefully demonstrated that the CoE is an established actor in in three key respects:
It is a body with a track record of bringing member state governments and the sport sector together to tackle sport-specific issues, typically in the form of international conventions or standards.
It is a body with international influence – it can bind state parties to conventions and monitor their compliance and, through the judicial rulings issued by the ECtHR, safeguard fundamental rights.
It is a body with expertise in a wide range of areas encompassing human rights, democracy and the rule of law, all of which have a direct bearing on the governance of sport. Of particular relevance is its work on anti-corruption and international cooperation.53
In the author’s view, the Committee of Ministers recommendations should properly be assessed against this background and seen as an important staging post in an ongoing process of engagement by CoE with the challenges presented by international sports governance.
This engagement dates back many years through the various conventions and standards outlined above but of most recent and direct significance is the resolution and associated recommendations set out by the PACE to the Committee of Ministers in December 2017 on a framework for modern sports governance.54,55
The resolution is notable for the very clear sense that the PACE believes much more urgent action is needed to address what it perceives to be significant failings in sports governance:
“The Parliamentary Assembly deplores the fact that the recent scandals…have tarnished the image of international sport and brought into the spotlight the lack of transparency and accountability in major sports governing bodies. The crisis in confidence seems far from over. The failures are systemic and call for a major overhaul of sports governance structures and practices…
…The Assembly believes that the sports movement cannot be left to resolve its failures alone. It needs to accept to take on board new stakeholders to embrace the necessary reforms.”56
Moreover, the PACE is specific about what it believes the solutions should be – a binding convention on sports governance combined with the creation of a new sports ethics rating system to provide an independent, objective assessment of governance:
“…the Assembly considers that it is necessary to draft a Council of Europe convention on good governance in sport, building on the same set of harmonised good governance criteria. This new convention could complement the existing conventional basis covering doping, match-fixing and spectator violence, bind its member States by the observance of the same harmonised standards and enable the monitoring of their implementation…
…The Assembly therefore urges the sports world to set up an independent sports ethics rating system, which should be created and operated by independent professional agencies with an impeccable international reputation, similar to existing environmental, social and governance rating agencies.”57
While the Council of Ministers does not (yet) appear to share the PACE’s view that a convention is necessary, continued pressure from the PACE for more radical reform is almost certain.58 In this context, the Committee of Ministers recommendations represent a shot across the bows for sport; continued failure to make demonstrable progress on governance will invite concrete action.
It is a statement of the obvious to say that further CoE intervention, in and of itself, will not be a panacea for sports governance.
However, in the author’s view, more coordinated action at intergovernmental level to drive reform is an important piece of the jigsaw. As an international entity with a track record in sport, the CoE has both the influence and the legal and administrative means to bring governments together to address failings in sports governance.
In this context, the Committee of Ministers recommendations have laid the groundwork. The next logical step – a binding international convention on sports governance – could be just a matter of time.
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- Tags: Anti-Corruption | Anti-Doping | Anti-Doping Convention | Bribery Act 2010 | Code for Sports Governance | Code of Sports Ethics | Council of Europe | European Convention on Human Rights (ECHR) | European Convention on Spectator Violence | European Sports Charter | Governance | Group of States Against Corruption (GRECO) | Public Interest Disclosure Act 1998 (PIDA) | the European Court of Human Rights (ECtHR)
- A guide to UEFA’s good governance reform
- Why ‘national platforms’ are the cornerstone in the fight against match-fixing in sport: the Macolin Convention
- Combating match-fixing in sport - a guide to the Council of Europe’s Convention on the Manipulation of Sports Competitions
- Is whistleblowing in sport fit for purpose? Part 1 – The current picture
- The legality of the anti-doping whereabouts rules: an analysis of the FNASS v. France human rights case
- The right to a fair hearing in sports’ cases: lessons from the ECtHR’s decision in Mutu & Pechstein
About the Author
Leigh is a Policy Adviser at the Sport and Recreation Alliance, the umbrella organisation for the governing and representative bodies of sport in the UK.
His main areas of focus include sports betting integrity – principally providing support to the Sports Betting Group – as well as broadcasting, tax and fiscal policy and EU sports policy. He has a background in policy and regulation having held similar posts in other sectors prior to joining the Alliance.
Leigh holds degrees in Economics and Public Policy and recently completed a Postgraduate Diploma in Sports Law. He has a keen interest in the legal and regulatory aspects of sport.