Sports law workshop
raises provocative questions:
Who should govern sports?
Is there a role for the State?
Can we expect private sporting bodies to regulate themselves?
Two stories by SHEREEN ANN ALI
Published in UWI Today, May 2018
Sports is a multi-billion industry, spanning athleticism, big business, marketing, entertainment and legal contracts of many kinds. Sports issues that arise make headlines worldwide. From the thrill of sporting triumphs to the taint of doping scandals or the challenges of governance of hugely popular and lucrative spectator sports such as football, what goes on in sports extends much further than just the playing field. Recognizing this, the UWI Faculty of Law recently hosted its inaugural sports law workshop, “Lex Sportiva – Beyond the Game”, on April 12, 2018 at the Queen’s Park Oval Century Ballroom in Port of Spain.
Corruption in sports is a huge issue. Here, outgoing FIFA president Sepp Blatter appears frazzled after British comedian Lee Nelson, unseen, throws banknotes at Blatter just before the start of a news conference for the Extraordinary FIFA Executive Committee meeting in Zurich, Switzerland in 2015. Photo: Reuters
Professor Rose-Marie Belle Antoine, dean of the UWI Faculty of Law. She asked whether decisions by private sports bodies should be subject to review.
Former West Indies wicketkeeper/batsman Deryck Murray. He believes all public sporting bodies should have financial reports, an organizational charter, an annual activity report, and a code of conduct. But most public sporting bodies in T&T do not do this, raising serious questions of accountability.
Professor Rose-Marie Belle Antoine, dean of the UWI Faculty of Law, launched the workshop, noting that the Faculty now offers several new legal courses, including, for the first time, sports law, as part of its efforts to provide high calibre continuing legal education to lawyers and other professionals.
Among the presenters were eminent international British sports lawyer, author and lecturer Professor Ian Blackshaw; former West Indies wicketkeeper/batsman Deryck Murray; Dr Jason Haynes who is senior Legal Officer of the British High Commission in Barbados; Dr Justin Koo, a lecturer in the UWI Faculty of Law; Tyrone Marcus, Senior Legal Officer in the Ministry of Sport and Youth Affairs; Regan Asgarali, an attorney attached to the Intellectual Property Office of T&T; and Stefan Fabien, an experienced corporate lawyer who is a member of the T&T Anti-Doping Committee.
Participants paid keen attention to the workshop topics, learning about the rapidly evolving field of sports law which can draw from several different legal areas. The first presenter, Dr Jason Haynes, gave examples of sports cases involving many different types of law, including Tort law (e.g. players, clubs, governing bodies or referees finding themselves subject to legal action for negligent liability for sports injuries), criminal law (e.g. players fighting each other, hostile fast bowling, spot-fixing/match-fixing, corruption); and contract law (e.g. the “no disrepute” clause which is frequently included in sports contracts. Players have often been penalized for violating it – e.g. drinking alcohol, fighting, or the case of Mohammed Ali refusing to be in the US army, or Michael Phelps’ three-month suspension for smoking marijuana, or the extra-marital affairs of Tiger Woods leading to the revocation of his Gillette sponsorship deal).
The sports law workshop touched on many interesting issues, including a business sports proposal by Dr Justin Koo of streaming local grassroots community sports online in order to make more money from local sports.
Easily one of the highlights of the workshop was the contribution of Deryck Murray during the lunchtime panel discussion open to the public. He gave some spirited and forthright opinions on the state of Caribbean sports management, which sparked much interest.
Professor Rose-Marie Belle Antoine chaired this public discussion, whose topic was: “Autonomy, good governance and state intervention in sport.” She opened by observing that in the early days, sport was not about money but about the games, and administration was done by friendly, voluntary bodies as an act of service, and by private bodies by mutual consent. But she said those days are long gone, as sport is now not just a big business, but rife with conflict.
In this context, who should govern sports? Is there a role there for the State? Can we expect private sporting bodies to regulate themselves? It made for some interesting debate.
Belle Antoine alluded to just a few contentious TT sports issues, such as the selection of Caribbean cricket teams, the periodic calls to fire the regional cricket board, and the case of gymnast Thema Williams, who is seeking millions in compensation for what she says is the TT Gymnastics Federation’s “harsh and oppressive” actions against her which shattered her dream of qualifying for the 2016 Olympic games. Other, very different examples of local sports cases involve fee disputes before the Industrial Court.
In this contentious context, Belle Antoine asked whether decisions by private sports bodies should be subject to review (she thinks so, for reasons of better accountability). She also asked whether we should move entirely away from the voluntary organization of major sports and create State-funded national bodies to oversee administration.
“All of us participate in sport, whether we play, watch, or support, we are involved, and we are passionate about it,” began Deryck Murray in his own contribution. He spoke of sporting ideals of commitment, dedication, and the purity of competition, with participants observing the rules and upholding the spirit of the game: “Whether win or lose, we play by the rules, shake hands with our opponents, and walk away until the next time. Those values should never change.”
But he acknowledged that those values do in fact change, because money is involved.
He referred to a document from Transparency International on FIFA, and said: “FIFA is the most corrupt body in the world.” He quoted from a November 2015 document which stated that there were 209 football associations around the world, and between 2011-2014, FIFA distributed a minimum of US$2.05 million to each of those sporting organisations. Yet 81% of them had no publicly available financial records, and 85% of them published no activity accounts of what they did.
He said public sporting bodies should have financial reports, an organizational charter, an annual activity report, and a code of conduct. But as of November 2015, he said T&T had published none of those. The results of this, he said, was: “Very much the consequences for any offence committed in TT – nothing. It will be in court, and continue.”
“Sport is a global phenomenon engaging billions of people and generating some US$150 billion annually. And yet we continue a laissez faire attitude to it still,” he said.
He said that sports can powerfully influence social values, allowing people to experience great emotion, learn the importance of rules, and develop respect for others. Those at the top of sports therefore have a duty to set high standards and lead with integrity, he said.
Murray mentioned other important issues affecting sports: conflicts of interest, trading and influence and insider information, cronyism & nepotism, sale of TV rights, venue and hosting arrangements, sponsorships and hospitality, remuneration and bonuses, payments to officials, ticket sales and distribution, procurement, the role of agents and intermediaries, and elections to governing bodies. He later praised sporting bodies for continuing to have sports despite all the issues.
Murray was of the opinion that international organisations such as FIFA, the International Olympic Committee, and the International Cricket Council hide behind the “non-interference rule” as a pretext to defend national associations (or in the Caribbean case, regional federations) from legitimate demands for transparency and accountability in the spending of public resources.
“We say governments must not interfere in the running of sports. But of course, we want the government to fund every sport across the board. If my taxpayer’s dollars go to some association running sport in T&T, or in the region, am I not entitled to know what they are doing? Bodies must be answerable, whether it is to the Court of Arbitration in Switzerland, or to local courts. But they must be specific to what our circumstances, our laws are. Private bodies cannot be allowed to operate with impunity.”
He referred to the recent March 2018 cricket ball tampering scandal in the third Test Match between Australia and South Africa in Capetown in which three Australian players were banned. For him, the important thing about that was that the first meaningful call for action came from the Prime Minister of Australia – not to interfere, not to hand down a judgement, but rather to say to the Cricket Board of Australia that it had to take strong and decisive action for making Australia look like a country of cheats internationally. Overnight, in the middle of a Test Match, the captain and vice captain of the team were stripped of their positions. And by the end of the Test Match, three of the Australian players were sent home, banned. “It is instructive to me that each of the three players accepted those punishments, and there is no appeal. This is a case of a government speaking out, and a sporting body being able to take action that is accepted by the players,” he said. He concluded:
“We are at a juncture, particularly in T&T and the region, where we need to understand the value of sport, not in terms of dollars and cents but in terms of the national psyche, and focus on laws that will help the administration of sport to benefit all of us in society.”
In a later comment, Murray clarified that he does not advocate for the Government taking over any sport. And with regard to the role of the West Indies Cricket Board (which rebranded itself as Cricket West Indies in 2017), he commented: “When the West Indies Cricket Board registered itself as an incorporated company, to me, it has to be treated like Clico, and Clico can be treated in different territories in very similar ways under corporate law. The WICB and other sporting organizations cannot have their cake and eat it… They must be treated as a corporate body, and therefore answerable to somebody. The shareholders of the TT cricket board are the public. And now that we have the introduction of franchises, we have a maze of companies designed to obfuscate the real issues of good governance.”
High stakes and lots of temptations
are making corruption in sports more common
Professor Blackshaw here leads a class on sports arbitration at Seoul National University, Korea in 2017. An expert in the field of sports law who gives lectures worldwide, he visited Trinidad in April 2018 to participate in a conference on sports law held by UWI's Faculty of Law, which is offering courses in the subject.
“Sport is now an industry in its own right and worth more than three percent of world trade. It is not surprising, therefore, that a specific body of sports law – a so-called Lex Sportiva – is developing to deal with this global phenomenon. There is now so much at stake, on as well as off the field of play. This has led to pressures – sporting and financial ones – on sports persons and teams to compete vigorously and, in some cases, to do so at all, or any costs, including cheating in its various forms, such as doping, match-fixing, illegal betting and other forms of corruption that are undermining the integrity of sport.”
These are comments by Professor Ian Blackshaw, the international feature speaker at the UWI Faculty of Law’s first sports law workshop aimed at lawyers and other professionals seeking to learn more about this expanding field. Held on April 12 at the Queen’s Park Oval Century Ballroom, Prof Blackshaw gave two knowledgeable presentations: one on “Sports Governance and the Russian Dilemma: Welcomed by FIFA, banned by the IOC” and one on “Sports Disputes Resolution: The Role of the Court of Arbitration for Sport and Lessons for the Caribbean.”
Prof Blackshaw is a Solicitor of the Supreme Court of England and an international sports lawyer with over 30 years' experience of practice in this field. He is also an academic, holding a Doctor of Laws Degree and a number of visiting professorships at several universities in Europe and beyond, including Seoul National University. He is a prolific author of books and articles on sports law, including his latest book entitled International Sports Law: An Introductory Guide published by the Asser Press in The Hague, The Netherlands. He is a member of the Court of Arbitration for Sport (CAS), where he specializes in sports mediation and conciliation. In many respects, he is a pioneer in the practice and teaching of sports law, which, he says, is an ongoing, developing and ever-challenging branch of the law.
Prof Blackshaw touched on several sports issues, including the controversies surrounding the granting of the World Cup to Russia (coming up in June this year), and later on, to Qatar in 2022.
He gave several examples of fraud in sport, such as doping – a form of cheating that is anathema to the ideals of fair play. In the sport of cycling, he noted that “mechanical doping” or the concealing of motorized equipment in the frames or wheels of bicycles was an issue of technological fraud. A recent example from cricket was the issue of ball tampering by Australians in the Third Test Match in Cape Town. And even the genteel sport of tennis is also under the microscope for being lenient with people alleged to be using prohibited substances, he said.
So what are international sports bodies doing about these issues?
He discussed the International Olympic Committee’s introduction (following the 2002 Salt Lake City bidding scandals) of an independent Ethics Committee, which has now been divided into two bodies following the allegations of systemized doping by Russia in relation to the 2014 Winter Olympic Games in Sochi.
In the wake of FIFA’s corruption scandals, he noted that FIFA has established its own independent ethics committee, with investigatory and adjudicatory arms. He commented on the demise of Sepp Blatter as president of FIFA, and the fall of Michel Platini (who in 2015 was banned from all football-related activities for eight years for accepting a payment of two million Swiss francs from Sepp Blatter).
On the issue of illegal betting, Prof Blackshaw noted that on May 9, 2011 FIFA signed a 10-year collaboration agreement with Interpol to try to identify illegal betting patterns: FIFA has put 20 million Euros into this collaboration, he said, which was significant, because Interpol has almost 200 member countries around the world.
Prof Blackshaw also spoke of several bodies set up to police or regulate different aspects of sports, including the ESSA (European Sports Security Association, based in Brussels, Belgium, set up to identify irregular sports betting patterns); and the ICSS (International Centre for Sports Security, based in Doha, Qatar, which does event security design, and provides services in good governance, investigations and intelligence).The ICSS aims to galvanise international support for integrity in sport globally, he said.
Prof Blackshaw also spoke of SIGA (Sport Integrity Global Alliance), formed in November 2015, a not-for profit international private-public partnership aimed at fixing many governance challenges in sport.
In his second presentation, Prof Blackshaw discussed the work of the Court of Arbitration for Sport which is based in Lausanne, Switzerland, and of which he is a member. The CAS has played an important role in developing the field of sports law since it began operations on 30 June 1984, having been specifically set up to settle sports-related disputes outside the ordinary courts' system, in other words, “extra-judicially”. Such a form of alternative dispute resolution, Prof Blackshaw pointed out, saves time and money and enables disputes to be settled “within the family of sport.”