Is whistleblowing in sport fit for purpose? Part 1 – The current picture

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 below explains the importance of whistleblowing in sport and sets out the current legal protections offered in cycling, football and athletics. Specifically, it looks at: 

  • The importance of whistleblowing in sport
  • The prevailing culture: breaking the “Omerta” (code of silence)
  • Existing protections for whistleblowers
    • Sport Specific Rules and Policies
      • Cycling
      • Football
      • Athletics
    • Pan-Sports Rules
    • Local Employee/Labour Protections 

Part 2, available here, asks if enough is being done and explores what further steps can be taken to encourage whistleblowing in sport in the context of the Lance Armstrong1FIFA2 and Russian Anti-Doping Agency (“RUSADA”) scandals3.

 

THE IMPORTANCE OF WHISTLEBLOWING IN SPORT

The integrity of sporting endeavour and competition is critical to the popularity and success of sport. "Integrity" is, of course, a broad term and a lack of integrity can encompass all forms of corruption and cheating, from doping and physical abuse; through to match fixing and tapping up. In his 2015 speech, David Howman, the World Anti-Doping Agency ("WADA") Director General said: 

"The intrinsic values of sport, often referred to as “the spirit of sport” is the celebration of the human spirit, body and mind, and is characterized by values such as ethics, honesty, respect for rules, self-respect and respect for others, fair play and healthy competition. If sport is void of these values (and others) it might be argued it is no longer sport".4

Whilst specifically in relation to doping, this comment could equally refer to other breaches of the integrity of sport. If the participants in sport cheat; the supporter, the spectator and the sponsor are cheated. This result is in addition to the other risks associated with a lapse in integrity, notably the health risks to athletes associated with doping.

One of the principal ways in which a lack of integrity in sport can be brought to the attention of regulators, other participants and the public is by participants, their coaches, agents, team mates or anyone associated to a competitor blowing the whistle on malpractice. It is therefore of the utmost importance that sport creates a legal mechanism, to promote, encourage and protect whistleblowers. Promoting a culture that encourages individuals with legitimate concerns to raise them at the earliest possible stage (either internally or externally) without fear of intimidation, retribution or recrimination from the sport itself should become one of the foundations upon which any sport can seek to maintain its integrity.

 

CULTURE: BREAKING THE "OMERTA"

Whilst it is recognized that within any team dynamic the code of silence can be important for the protection of tactics or technological development, this can of itself make it easier to cover up, or more difficult to speak out. To build a culture that encourages whistleblowing, the importance of integrity requires that this concept must be pre-eminent over any code of silence. The so-called "omerta"5 (code of silence) in professional cycling is a recent example of an extreme inhibitor in one sport that enabled a corrupt culture to exist, if not flourish. In the wake of the United States Anti-Doping Agency ("USADA") Report6 on Lance Armstrong (which itself relied heavily on what USADA described as a number of "courageous riders" who were willing to break the "omerta") ("USADA Report"), the Union Cycliste Internationale ("UCI") commissioned the Cycling Independent Reform Commission ("CIRC") to produce a Report7 on the causes of the "pattern of doping" and the allegations against UCI and other bodies and officials ("CIRC Report")8. The CIRC Report, published in 2015, quoted the pertinent evidence of one rider who stated: 

At the moment, confessing is not encouraged and it is then difficult to find another team. Effectively a life ban is imposed by the teams (not by the relevant authority). Teams run by the same people - all in cycling for a long time and part of the omerta. At the moment the incentive to confess is zero.9 

Even more disconcerting for professional cycling were the allegations levelled at senior members of the UCI itself. For example, the CIRC Report noted that:

"Pat McQuaid [the then UCI President] is alleged to have qualified Tyler Hamilton and Floyd Landis, the two cyclists whose revelations did a lot to bring Lance Armstrong down, as “scumbags"."10

The Report summarised:

"the general attitude [of the UCI] in the context of disciplinary sanctions was to be strict on whistleblowers. There was no general strategy to actively encourage whistleblowing. Instead, riders reported that the message sent out by UCI leadership in case they went public was ambiguous and hostile."11

Whilst specific to professional cycling in the US (and historic), such a situation is clearly unacceptable, inhibits whistleblowing and is an environment that will enable corruption to become endemic. The steps taken by UCI to improve whistleblowing protections in light of the CIRC Report are discussed further below. 

There are other examples of the culture of sport being tarnished by the same issues. The whistleblower, Pheadra Almajid, who raised concerns over the bidding process for the Qatar 2022 Football World Cup described the "culture of self-protection" that she encountered12. She raised a complaint with FIFA's Disciplinary Committee that FIFA had breached confidentiality promised to her and in doing so had put her safety at risk. The Disciplinary Committee dismissed her complaint that Ms Almajid described as “a transparent avoidance of a clear violation of its own rules13

It is vital to ensure that a culture exists that encourages whistleblowers. Sport must be accepting of and recognise the intrinsic value of whistleblowers in cleaning up sport. In addition to culture, it is critical that sports offer internal and legal protections for whistleblowers. What are some examples of existing protections for whistleblowers in sport?

 

EXISTING PROTECTIONS FOR WHISTLEBLOWERS

There are three primary sources of whistleblowing protection in sport:

Sport Specific Rules and Policies 

As a matter of good practice, each national and international federation, regulator, league, club or other institution or association should adopt a formal and clear whistleblowing policy setting out its position in relation to whistleblowing. There is however currently no obligation to do so. The examples of cycling, football and athletics are discussed briefly below.

Cycling 

In cycling, the UCI Anti-Doping Rules came into force on 1 January 2015 at the same time as the new WADA Code (discussed below) and they include a requirement on riders and support personnel to report any circumstances they become aware of that may constitute an anti-doping rule violation14. Section 21 states:

"21.1 Roles and Responsibilities of Riders

21.1.7 To report to Anti-Doping Organizations any circumstances they become aware of that may constitute an anti-doping rule violation.

21.2 Roles and Responsibilities of Rider Support Personnel

21.2.7 To report to Anti-Doping Organizations any circumstances they become aware of that may constitute an anti-doping rule violation.

21.3 Consequences of Non-Compliance with the Responsibilities of Riders or Riders Support Personnel

Where it considers so warranted, the UCI may initiate disciplinary proceedings against Riders or Rider Support Personnel for non-compliance with Articles 21.1 or 21.2, as applicable.

The disciplinary proceedings will be referred to the UCI Disciplinary Commission in accordance with UCI Disciplinary Rules."

The cycling "National Federations" are under an obligation to include within their regulations the rules necessary to effectively implement these Anti-Doping Rules15. The National Federation must also cooperate with investigations conducted by any Anti-Doping Organization (in the UK, it is the UK Anti-Doping ("UKAD")).

However, the obvious criticism of these cycling specific Rules are that they only relate to anti-doping and not broader corruption (as set out above) and, in addition, the rules are silent on the protections offered (if any, beyond national legislation) for those who raise such concerns.

The UCI Anti-Doping Rules appear more focused on its ability to admonish those associated with doping once it is discovered, as opposed to providing clear protections and cultural changes to encourage a cleaner sport.

The CIRC Report recommended that in order to encourage people to come forward with information, UCI set up an "independent whistleblower desk" and that absolute confidentiality16 must be guaranteed17

"3.2.2. Independent whistleblower mechanism

CIRC recommends that in order to encourage people to come forward with information, UCI should set up an independent whistleblower desk, where the processes and systems are fully outlined to a potential caller. Absolute confidentiality must be guaranteed. The whistleblower mechanism would deal with information related to all forms of corruption and cheating, including doping, outcome fixing, and technical cheating.

UCI should ensure the risk of being ostracised or legal repercussions are minimised by providing structural support and help to people who come forward with material information. The attitude towards whistleblowers should be shifted to highlight the positive role they play in cleaning up cycling."

The UCI in conjunction with the Cycling Anti-Doping Foundation set up a 24-hour confidential anti-doping helpline for professional riders to "encourage the sport's professionals to come forward and reveal, in the strictest confidence, anything they know about doping practices within the peloton"18. However, as with the UCI Anti-Doping Rules and contrary to the “all forms of corruption” proposal of the CIRC, the helpline appears to be doping specific and not to cover other forms of corruption and cheating.

The authors have not seen any evidence of the frequency of use or success of the helpline, neither has such information been published. In other large organisations (such as the NHS) or in heavily regulated industries (such as the Financial Services sector) it is now common, if not a forthcoming requirement19, for whistleblowing procedures to be reviewed annually and their effectiveness examined. It would be wrong to assume that a rarely used whistleblowing procedure was effective because there were no concerns to be raised. Likewise, an often used procedure which resulted in many concerns being raised which were without substance or that contained inadequate information, would equally be of concern. 

A word search of the UCI website and the 2013, 2014 and 2015 Annual Reports for "whistleblowing" returns no references. The UCI Code of Ethics20 is very clear on confidentiality21 and that any person may address a complaint or report an alleged breach of the Code to the Ethics Commission22. However, there is a conspicuous lack of any specific protection for whistleblowers in the Code of Ethics.

Recommendation 8 in the CIRC Report states:

"8. CIRC recommends that in order to encourage people to come forward with information, UCI should set up an independent whistleblower desk. UCI should also proactively make full use of substantial assistance provisions (every athlete who is sanctioned should be approached to enquire whether he is interested in providing substantial assistance)."

In March 2015, Brian Cookson, UCI President, stated that following the CIRC Report recommendations, one of the steps that the UCI would take was to:

"Re-launch our whistleblower programme, through an independent agency, in support of the 2015 World Anti-Doping Code which places a duty on riders and team staff to report any circumstances they become aware of that may constitute an anti-doping rule violation."23

The authors are not aware of any further steps taken in this respect. These efforts have also not resulted in any publicity supporting its effectiveness. In the vacuum of information, one must assume that the effect has been insubstantial. We consider that if such procedures had been successful then it is most likely those stories would have been publicised to encourage others, perhaps unaware of such procedures, as to their effectiveness. 

Football 

In relation to English football, the Premier League Handbook for the 2015/16 and 2016/1724 seasons make no reference to "whistleblowing". The FA Rulebook for the 2015/1625 and 2016/1726 seasons make one solitary reference to whistleblowing:

"Any concern about the welfare of a young player will be managed in line with The FA’s Safeguarding Children Policy and Procedures. It is essential that staff recognise it is not their responsibility to decide if abuse is happening but to refer the concern on for the professionals to manage. If any staff member has concern about the way a concern is being managed they may make use of the FAs Whistle Blowing Policy which is stated below.

"Whistle-blowing” 

Whistle-blowing is an early warning system. It is about revealing and raising concerns over misconduct or malpractice within an organisation or within an independent structure associated with it. Any adult or young person with concerns about a colleague can also use whistle-blowing by contacting The FA Case Management Team on 0844 980 8200 Ex.6400. Alternatively you can go direct to the Police or Children’s Social Care and report your concerns there."

This is the quote in its entirety and appears to relate to Safeguarding Children only27. There is a short page on the FA website28 which refers to the requirement of any individual to report any "Approach or Suspicious Activity" but this appears to relate to match fixing and betting only and makes no reference to the protections offered to any potential whistleblower. It is the authors' view that by making such conduct a “requirement”, there is some focus on a disciplinary sanction for failing to report such conduct, as opposed to encouraging someone to raise it because it is the right thing to do.  

The FIFA Audit and Compliance Committee was set up to advise and assist the Executive with the monitoring of FIFA's financial and compliance matters. The FIFA 2012 Financial Report29 stated that the Committee would:

"Take on cases of alleged non-compliance by FIFA employees with the laws and rules on ethics as well as with the FIFA internal rules submitted by the body operating the whistle-blowing hotline for FIFA."

In relation to European football, UEFA’s Professional Football Strategy Council adopted a position paper entitled: "Joint action plan for the integrity of the game"30 along with the European Club Association, European Professional Football Leagues and FIFPro. The Code of Conduct under the Joint Action plan included the proposal for the “Implementation of whistle-blowing procedures in each football organisation”. However, this was specifically in relation to one form of corruption, match-fixing, following high profile examples of such corruption.

There is very little publicly available information on the existence or success of the UEFA or FIFA hotlines. 

On 6 February 2013, FIFA announced the launch of a “Reporting Mechanism31 whilst at the same time updating its Code of Conduct and Code of Ethics. The purpose of the Reporting Mechanism is to “ensure that all statutory rules, rules of conduct and internal guidelines32 are respected and complied with and it is stated to be a system:

"by means of which inappropriate behaviour and infringements of the pertinent regulations may be reported. This portal offers an opportunity for employees, persons bound by the FIFA Code of Ethics, and others to notify FIFA of potential violations. 33:"

There are a number of potential criticisms in relation to the FIFA Reporting Mechanism. First, the information is not particularly detailed. Specifically, the portal does not provide the users with guidance or worked examples as to the sort of concerns that should be raised.

Secondly, the authors are not aware of any comments online or any publicity recording either its successes or failures. There is no mention of any Reports being made regularly (at least annually) as to the effectiveness of the mechanism, which bearing in mind it has been in place for three years, may call into question its effectiveness given its success in encouraging employees or any other person concerned with potential FIFA violations to come forward is wholly unknown and unreported.

Thirdly, there remains a potential problem in the practical application of the procedure because it is made clear that, as might be expected, the system is only for violations that fall under the jurisdiction of FIFA, as opposed to the jurisdiction of a local entity, such as any specific confederation or association. The system is limited to FIFA's jurisdiction which is essentially match manipulation impacting upon cross-confederation misconduct or misconduct which "has not been or is unlikely to be dealt with appropriately at [confederation or association level]". This is vague and suggests that the matter must be raised at a confederation or association level before it can be escalated to FIFA.

Fourthly, no mention is made as to the specific protection offered to whistleblowers. Indeed, the website and portal appears to recognise that whistleblowers may not be permitted to remain anonymous:

"Whether you submit your report anonymously or are asked to include your name, your information will be handled promptly and treated with the strictest confidentiality available under the applicable laws and regulations."

It is our view that this restrictive approach substantially limits the role of FIFA and would inhibit disclosures by those with critical information from coming forwards.

Finally, whilst it is perhaps better for a confederation or association to have the opportunity to address concerns themselves first, to require users to have exhausted or even used that process before being entitled to raise matters with FIFA themselves will act as an unnecessary obstacle to critical information being obtained and acted upon. 

The dearth of specific and publicly available whistleblowing material, reporting on its effectiveness and clear policies encouraging the reporting of concerns in football is perhaps surprising in light of the recent revelations of the long standing corruption in FIFA34.

Athletics

In athletics, the All-Russia Athletic Federation (“ARAF") scandal led to the International Association of Athletics Federations (“IAAF”) establishing a Taskforce that had Terms of Reference that included setting the Reinstatement Conditions and Verification Criteria concerning the suspended IAAF Member Federation of ARAF35. This included a specific requirement (Verification Criterion No 6.2) for RAAF to “actively promote an open environment that encourages whistleblowing”. However, as the Interim Report to IAAF Council dated 17 June 2016 states:

For example, one young athlete specifically states that he would never blow the whistle on anything he saw, because it was not his place to do that. There has been no meaningful whistleblowing from Russian athletes."36

The IAAF Code of Ethics in force from November 2015 provides that it is a Principle of the Code (clause 8) that: "Persons subject to the Code shall immediately report any breach of the Code to the Chairperson of the IAAF Ethics Commission.” Clause 10 makes it a breach of the code for failure to report:

Persons subject to the Code who knowingly assist, fail to report or are otherwise complicit in any act or omission that constitutes or culminates in the commission of a violation of the Code shall themselves be treated as having committed a violation of the Code."37 

In this respect, the Code is strict. However, there is no clear statement, as far as the authors can see, of the policy in relation to whistleblowing and the protections offered to whistleblowers. As with football, the lack of any clear statement of policy and laws for whistleblowers in light of recent revelations is surprising38

The absence of specific easily accessible rules and policies in relation to whistleblowing in the three example sports mentioned above is in the authors’ opinion both unacceptable and surprising.  

Pan-Sport Rules

The second source of whistleblowing rules are pan-sport rules. The most obvious example of these are those set in the doping sphere by the World Anti-Doping Agency (“WADA”). In professional cycling, the CIRC Report stated: 

"The proper policy seems to the CIRC to be to routinely contact and invite riders that have tested positive to give “substantial assistance” on helping to prosecute other athletes or athlete support personnel in return for a reduction on sanctions. The substantial assistance strategy has been further enhanced in the new WADA Code."39 

The "substantial assistance" provisions of the 2015 WADA Code were the subject of a LawInSport article by Sir Anthony Hooper and Andrew Smith in December 201440 and are not set out in any further detail here. In summary, Article 10.6 of the WADA Code allows for a participant who blows the whistle on a previously unknown anti-doping rule violation to be entitled to a reduced ban. Anti-Doping Organisations are given the power to agree reduced bans where a participant gives "substantial assistance" in relation to other doping offences. 

In the UK, UKAD adopted Rules on 1 January 2015 (UK Anti-Doping Rules 2015) to implement the requirements of the WADA Code including those relating to substantial assistance41

Another example of pan-sport action is provided by the IOC which, following the implementation of the Agenda 2020, established a whistleblower hotline which was announced on 16 April 201542 (the "IOC Hotline"). This new initiative, called theIntegrity and compliance hotline43 appears helpful and directs users to other sport’s reporting mechanisms (such as FIFA, UEFA and WADA). The IOC Hotline is intended to enable the reporting of 

  1. suspicious approaches or activities related to competition manipulation”;
  2. "Infringements of the IOC Code of Ethics"; and
  3. "incidents when you feel that you may have been the victim of an incident of harassment / abuse, or have witnessed something during Games Time which concerns you regarding harassment and abuse”. 

It is clear that by using the process, an informer’s identity will not be disclosed beyond those responsible for investigating the report, without their explicit consent. Anonymity is offered, but confidentiality is encouraged. As for protections, the IOC Hotline "Welcome" page states:

The IOC will take appropriate measures to ensure protection from any harassment, retaliation, or adverse employment consequences of individuals who use this Hotline on reasonable grounds and in good faith to report an integrity breach. Any person who retaliates against a whistleblower may be subject to appropriate disciplinary action. The IOC will provide protection against any unjustified treatment in the form of providing confidential advice to whistleblowers so long as there is an honest and reasonable belief of wrongdoing, but will provide no protection for knowingly false disclosure of information. Protection will extend to disclosures made anonymously, if later identified. If physical protection is needed, the case is referred to the police44”.

Unfortunately, there is no guidance to users as to what is an “adverse employment consequence” to an individual, how and in what manner “the reasonable grounds” will be determined, or the extent of protection really being provided. It is also not clear whether the protection will be provided to volunteers, who play a huge part in the Olympic movement.

In addition, it is not clear in what circumstances an individual will engage these protections. Taking the current allegations against British Cycling as an example45, had the individuals raised their concerns through the IOC Hotline, it may be that they would have been offered enhanced protections in comparison to the British Cycling current procedures which, apart from safeguarding46, make no reference to the specific protections offered to whistleblowers.

As a final point, a further concern with the wording of the IOC Hotline protections is that it might exclude protections for those that are not in “employment”, for example, the participants themselves. 

Whilst pan-sport whistleblowing rules are to be encouraged, the piecemeal situation that exists at present is confused and its effectiveness may be questioned as it currently stands. 

Local Employee/Labour Protections

The third source of rules is national legislation, regulations or rules in the jurisdiction in which the individual whistleblower is employed or contracted. In considering the protection afforded to whistleblowers in the UK, this is restricted only to workers and potential claims can only be presented within an Employment Tribunal (who have exclusive jurisdiction) and claims are pursuant to the Public Interest Disclosure Act 1998 (as amended) which placed the protection for whistleblowers within the Employment Rights Act 1996. Whistleblowers are only protected if they make protected qualifying disclosures, which in summary means they must have a reasonable belief that a criminal offence, breach of legal obligation, miscarriage of justice, danger to health and safety, damage to the environment or an attempt to conceal any of the same has, is or is going to take place.

This particular protection has recently been criticised by BluePrint for Free Speech, in their Report which found “PIDA contains only 37 percent of [international] standards for whistleblower protection legislation47. Whilst there are many potential protections available for purported violations of confidentiality under the public interest defence, there is not within the UK any whistleblower specific protection to compensate for the impact of retribution, other than that provided to workers. 

The UK does provide the potential for a claim by one worker against another for any victimization caused as a result of whistleblower, however at present in the case of Royal Mail Group Limited v. Jhuti,48 the Honourable Mr Justice Mitting has held that a declaration was the only available remedy to a worker for any victimization caused by a co-worker and no financial remedy was available49. Accordingly, if a sportsperson was held to be a worker and they were victimized by their colleagues because they had blown the whistle, they could only receive a recommendation. Their employer may be liable, but the route to protection is not simple. However, the damages are uncapped which is particularly valuable if the whistleblower is looking at a career loss in sport.

Of course, this legislation only applies in England and Wales and does not offer protection to those who are not workers. As one would expect, the extent to which local jurisdictions offer protections varies around the globe.

That concludes Part 1. In Part 2 of this article, the authors will examine if enough is being done to protect and assist whistleblowers, and explores what further steps can be taken to encourage effective whistleblowing in sport in the context of the Lance Armstrong50, FIFA51 and RUSADA scandals52.

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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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