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“Protecting Sports Integrity: Sport corruption risk management strategies”

Thesis by Published Works submitted for the degree 180JA Doctor of Philosophy in Health

(8703 Thesis)

Catherine Ordway u3094835

University of Canberra

Author Note:

This PhD has been completed with the support of a Commonwealth HDR RTP Fees Offset and a

University of Canberra HDR student allocation for RTS and conference funding

Protecting Sports Integrity: Sport corruption strategies CATHERINE ORDWAY

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Abstract

Doping, match-fixing and corruption are challenges to the integrity of sport. Rather than

imagining that there is a single “magic wand” solution, drawing on lessons from other industries

and contexts, the culture of corruption rife in both Olympic and professional sports can instead

be tackled through a range of tools. Inspired by the idea of “moral repair”, and the Ethics of

Care approach, a number of risk reduction strategies, including: engaging in collaborative

partnerships with law enforcement, strengthening legislative and regulatory frameworks,

prioritising athlete welfare and supporting good governance, including promoting gender

equality and ethical leadership, have been outlined.

Keywords: sport; integrity; corruption; governance; ethics; gender; collaboration; welfare


Table of Contents

Title Page i

Abstract ii

Form B (Certificate of Authorship of Thesis) iii

Table of Contents iv

Preface and Acknowledgements vi

List of Publications ix

1. Over-view and Introduction: Sports Integrity Definitions and Solutions 1

Chapter 1 Over-view and Introduction

Publication #1: Ordway, C. and Opie, H. (2017). Integrity and corruption in sport.

2. Good Governance: independence and gender equality

Chapter 2 Over-view

Publication #2: Nehme, M. and Ordway, C. (2016). Governance and Anti-Doping:

Beyond the Fox and the Hen House.

Publication #3: “Gender Equality Achieved Through Love: promoting an Ethics of Care

[EoC] Approach in Football (FFA)” [manuscript ready to be published].

3. Partnerships: information-sharing and inter-agency collaboration

Chapter 3 Over-view

Publication #4: Ordway, C. (2013). Why Being a World Leader Means Staying Ahead of

the Game: Supporting ASADA’S Enhanced Powers.

Publication #5: Ordway, C. (2017). Police and investigative co-operation on match-

fixing: the Australian experience.

4. Legislation and Regulatory Measures: National and International

Chapter 4 Over-view

Publication #6: Ordway, C. (2013). Doping: ACC Report: Why ASADA Needs Teeth.

Publication #7: Ordway, C. (2018). Sports Integrity: Legislating into a Position of

Strength.

Publication #8: Passas, N. and Ordway, C. (2016). Sports Corruption: Justice and

Accountability through the Use of the UNCAC and the UNTOC.

5. Asset Protection (Athlete Welfare): Financial Security and Inclusion

Chapter 5 Over-view

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Publication #9: Ordway, C. (2014). Why this Australian Supported Germany to Win the

World Cup.

Publication #10: Ordway, C. (2018). Does sex segregated sport still hold value?

6. Conclusion: Recommendations and Afterword

Annexure A: Administrative Documentation

Annexure B: Additional Publications

Annexure C: Conference Presentations

Annexure D: Media Interviews

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“Protecting Sports Integrity: Sport corruption risk management strategies” CATHERINE ORDWAY

Preface and Acknowledgements The life of a writer is absolute hell compared with the life of a businessman. The writer has to force himself to work. He has to make his own hours and if he doesn’t go to his desk at all there is nobody to scold him. . . . A person is a fool to become a writer. His only compensation is absolute freedom. Dahl, R. (1984). Boy: Tales of Childhood. London: Jonathan Cape p222-223

For anyone who has attempted a PhD, then you know that the expression: ‘it takes a village to

raise a child’ equally applies to the PhD candidate on the long journey to final submission.

Unlike Roald Dahl, who was permitted the luxury of escaping to his writer’s cottage at the

bottom of the garden, emerging only at the ring of a bell for the magical appearance of meals

and clean and ‘shushed’ children, my experience resonated more with that described by

Kathy Lette (2019) who exclaimed: “I think that any mother who manages to finish a novel

should get the Booker prize just because she finished that goddamn thing!”1 Squeezing this

writing in and around life, plus consulting, teaching and travelling to produce a final product

is prize enough. I am very grateful to numerous family, friends, colleagues and students who

encouraged me, gave me ideas, sent me articles and talked me through the ups and downs.

The overwhelming feeling left from the experience is how privileged I am to have been

surrounded by a very large, inter-connected group of well-wishers who believed in me, and

believed it was possible to see this massive undertaking through. Thank you to my glorious

international garden of goodwill!

A huge hug of a thank you is reserved for my Mum, Wendy. My mother came from a family

of sporty women; my Grandma and her sisters played representative hockey for my home

town of Whyalla, South Australia, and, like me, my mum played A-Grade and representative

tennis and netball in her youth. Mum encouraged me to play sport; ferrying me around to

various training sessions, coaching camps, and tournaments, standing for hours on the

sidelines in all weather, and hitting me baskets of tennis balls. From before I was old enough

to play competitive sport, I remember watching my Mum at netball and tennis, or from the

back of the squash courts with my brother, Ben. My Dad, Bill, brought home our first colour

TV in time for the opening ceremony of the Moscow 1980 Olympic Games, and I was

mesmerised. My parents planted the seed for my fascination for sport, for hard work, a drive

to always do your best with the talents you have, and an over-riding desire for fairness, which

I have carried with me throughout my life: “Nothing is impossible!”.

1 “Kathy Lette on motherhood and women writers”, A Podcast of One's Own with Julia Gillard, episode 2, 27 June 2019, Global Institute for Women's Leadership, King's College London https://www.kcl.ac.uk/giwl/podcast (at 20mins approx)

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https://www.kcl.ac.uk/giwl/podcast


My next group of thank yous are for my kaleidoscope of formal and informal supervisors. I

am grateful to my original primary supervisor, Allan Edwards, for first suggesting that I

could do my PhD: to create a “bonsai” project and to “follow the bouncing ball”! To John

Dodd and Anthony Beaton for agreeing to be on my first supervisory panel. Thank you to

Vanessa McDermott, for reading my draft chapters and for bringing her anti-doping “moral

panic” sociology expertise, and to James Skinner for introducing me to his Loughborough

University students. Thank you to all the friends and colleagues who read various drafts of

my papers, gave guest lectures, triggered good ideas without knowing it, nagged, encouraged,

poked and provoked, lent me your guest rooms/ counches, and/or were included in robust

discussions via email, Twitter, LinkedIn, and ideally, glasses of red wine and/ or dark

chocolate – a big thank you! A special thank you is reserved for Adele Pavlidis for

encouraging me to submit by publication, which has been life-changing!

Thank you to the intelligent and pragmatic women who sit on national and international

sports boards, who agreed to be interviewed and so cannot be named, and whose ideas are

further explored, and peppered throughout, each of my articles. Thank you to my examiners,

and to my advisor, David Pyne. Most of all, I am grateful to ethicist, Richard Lucas, my

stand-in primary supervisor, who is still not quite sure how he has managed to end up being

so involved. Richard started out, with the wonderful Kim Rubenstein from the Australian

National University, as my confirmation seminar examiners. Richard: I owe you a special

thanks for living the Ethics of Care - it is you who cajoled, encouraged, badgered and

challenged me every step of the way over the years. Thank you!

Thank you to my brilliant mentor and ‘Uncle’ Hayden Opie who, on the back of the Masters

course we created at The University of Melbourne, “Sports Integrity & Investigations”, we

co-authored the book chapter that has become the backbone of this thesis. It was Hayden and

Tracey Green, from Charles Sturt University, who provided references to support my PhD

application and kick off this journey. To my other colleagues at The University of

Melbourne, La Trobe University (especially Emma Sherry and the Professors of Practice), the

University of New South Wales (especially Richard Redman), Charles Sturt University, and

the University of Canberra (especially Jennie Scarvell, Rae Butler, Dean Michelle Lincoln,

Tracey Dickson, Stirling Sharpe, the Health Admin team, the Faculty of Health Research

office, and Dr Mel and the HDR “Shut Up & Write” students), thank you. Thank you to my

students, and conference organisers, who allowed me to test my ideas. Thank you to my

other co-authors, Marina Nehme, law enforcement advisor Phil Van Dissel, and to Nikos

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Passas. Nikos introduced me to the Anti-Corruption Academic Initiative, and the world of

the United Nations Office on Drugs & Crime (UNODC), which led to my involvement in the

Education for Justice initiative. Thank you to Sigall Horowitz, Ronan O’Laoire, Maria

Adomeit, and to Dimitris Vlassis who will be missed. The UNODC community provides a

wonderful learning environment, filled with gifted and passionate people, similarly engaged

in having a positive impact on the next generation of leaders.

One of the many incredibly generous people I met through the UNODC is Speedy Rice.

Speedy facilitated and arranged for me to further my studies via a Visiting Scholarship at

Washington & Lee University, Virginia USA. Thank you to Dean Brant Hellwig, Mark

Drumbl, Beth Belmont, Matt Tuchler, and all the academics and students at W&L who were

so kind; feeding me intellectually and physically. I hope to have the chance to visit again.

Thank you for the advice and editorial support from all the editors and publishing house staff

who contributed to refining and shaping my ideas: Stephen Frawley, Nico Schulenkorf,

Deborah Healey, Ulrich Haas, Stacey Steele, Deborah Unger, Joel Bates, Sophie Cameron

and Gerry Glennan. They can credit my obsession with footnotes to my Y8 English teacher,

Miss Knight, who created my plagiarism aversion condition. Thank you to the many

journalists whose probing questions often piqued my curiosity to dig deeper and explore even

more rabbit holes and shiny ideas, particularly the ever-inspiring Tracey Holmes. A big

thank you to the Snedden, Hall & Gallop team including my SHG Sport colleagues, Alistair

Twigg, Richard Faulks, Jan Jessop and Diana Tozer. A big thank you too, for her eternal

optimism and support, to the one-of-a-kind Principal of St Anns College, Rosie Brooks (DB).

Finally, last but certainly not least, to my son Joshan, and my man Sandy, a heartfelt “sorry”

and enormous “thank you”: “sorry” for all the times I have not been present, and “thank you”

for all your support and sacrifice, and for allowing me to see where this path takes me.

Having started in this journey in 2013, Joshan probably does not remember a time when I

wasn’t doing “the PhD”! I have grown and learnt a terrific amount throughout this

experience, and hope that you both feel it has all been worth it. I look forward to having

more fun, better ‘integration’,2 more fruitful collaborations and, ultimately, sports

organisations and ethical leaders we can all feel proud of.

Canberra, Australia: 31 July 2019

2 As distinct from “balance”: Maria Clarke, sports lawyer

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List of Publications

Publication #1: Ordway, C. & Opie, H. (2017). Integrity and corruption in sport. In N.

Schulenkorf & S. Frawley (Eds.), Critical issues in global sport management (pp. 38-63).

London, England: Taylor & Francis, Routledge

Publication #2: Nehme, M. & Ordway, C. (2016). Governance and Anti-Doping:

Beyond the Fox and the Hen House. In U. Haas and D. Healey (Eds.), Doping in Sport

and the Law (pp. 207-231). Oxford, England: Hart Publishing

Publication #3: Ordway, C. “Gender Equality Achieved Through Love: promoting an

Ethics of Care [EoC] Approach in Football (FFA)” [manuscript ready to be published]

Publication #4: Ordway, C. (2013). Why Being a World Leader Means Staying Ahead

of the Game: Supporting ASADA’S Enhanced Powers. The ANZSLA Commentator, 87

(29 Apr 2013), 9-12

Publication #5: Ordway, C. (2017). Police and investigative co-operation on match-

fixing: the Australian experience. In S. Steele & H. Opie (Eds.), Match-fixing in Sport:

Comparative Studies from Australia, Japan, Korea and Beyond (pp. 171-186). London,

England: Taylor & Francis, Routledge

Publication #6: Ordway, C. (2013). Doping: ACC Report: Why ASADA Needs Teeth,

World Sports Law Report, 11(3) (Mar 2013), 13-16.

Publication #7: Ordway, C. (2018). Sports Integrity: Legislating into a Position of

Strength, World Sports Advocate, 16(9) (Sept 2018), 16-19.

Publication #8: Passas, N. & Ordway, C. (2016). Sports Corruption: Justice and

Accountability through the Use of the UNCAC and the UNTOC. In ACAD Symposium

Compendium 30-31 Oct 2015 (pp. 120-137). Vienna, Austria: United Nations Office on

Drugs and Crime

Publication #9: Ordway, C. (2014). Why this Australian Supported Germany to Win the

World Cup, Sport & EU Review, 6(2) (Aut Nov 2014), 6-12.

Publication #10: Ordway, C. (2018). Does sex segregated sport still hold value? World

Sports Advocate, 16(5) (May 2018), 16-18.

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Chapter 1: Overview and Introduction - Sports Integrity Definitions and Solutions

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“Protecting Sports Integrity: Sport corruption risk management strategies” Catherine Ordway

Overview and Introduction

This thesis by published works is an empirical study primarily based on document analysis

and a priori direct observation within the critical sport management research tradition (Frisby

2005). This thesis by publication consists of ten publications, nine of which have been

published, and the remaining publication, Publication #3, is ready for submission. As the

thesis title suggests, Protecting sports integrity: Sport corruption risk management strategies,

a multidisciplinary approach has been adopted to identify a number of regulatory measures,

policies and programs, tested through case studies, to protect the integrity of sport. To date,

academics and administrators alike have tended to view threats to sport, including doping,

match-fixing, and corruption, in isolation. Each threat has been responded to using different

methodologies. The originality and impact of this work lies in looking at what commonality

presents in relation to both the motivations and the responses to these threats. Drawing on

learnings from around the world, in different sports and different industries,

recommendations have been made about how sports integrity can be supported more

holistically. Some of the strategies suggested here are new, most are adaptations of existing

approaches, but the importance lies in emphasising that they should be refined and moulded

to suit the specific target group and cultural setting. In this way, stakeholders in the sports

industry are encouraged to selectively access a range of ‘tools’ from an ‘integrity toolbox’.

These tools are intended to work together, to be shared and improved over time, to prevent

and detect ‘cheating’ in sport.

In the field of sports management, a distinction is made between what is referred to as

“Scientific research” and “Professional Practice research”. This thesis falls into the

“Professional Practice research” category. This introductory chapter, each of the chapter

overviews and the conclusion, critically places the published works in the context of this

professional practice field of study and provides an overview of the thesis topic as a whole.

This ‘golden thread’ or mis en scenc draws all of the research strands together to clarify:

(a) the need for the research; (b) how the publications are linked to create a cohesive

argument; and (c) the contribution of the thesis as a whole. Rather than having a single key

research question then, this thesis presents the professional practice research analysing a

range of anti-corruption risk management strategies aimed at reducing the risk of threats to

sports integrity.

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1. Aim:

Sporting institutions and organisations are increasingly under threat from those seeking to

disrupt or unfairly profit from sport, both from within and outside. Not limited to “cheating

to win” (doping) and “cheating to lose” (match-fixing), corrupt behaviours, as defined in

Publication #1 (Ordway and Opie 2017), challenge the integrity of sport.1 Using an Ethics of

Care (EoC) approach (Gilligan 1982), the aim is to reframe anti-corruption efforts in sport by

advocating for the creation of an environment focused on fairness, transparency,

accountability, collaboration, diversity and inclusion. It is proposed that using a range of

tools appropriate to the sport and setting will both allow sports organisations and individuals

to be more resistant to corruption, and to restore trust in the sporting public. Without seeking

to be an exhaustive list, a range of risk mitigation strategies were identified and analysed in

Publication #1, and expanded on in this thesis, for consideration by policy makers and

legislators, sports participants and ethical decision-makers, committed to protecting the

integrity of sport.

This thesis seeks to identify the risks, the possible causes of those risks, and outlines

recommended strategies for minimising those risks through a holistic, EoC approach. An

EoC approach, alternatively called Care Ethics, which traces its origins from a feminist

perspective (Gilligan 1982; Noddings 1984; Held 2006), focuses on creating greater empathy,

mutual respect, justice, equality, fairness, trust, solidarity and responsibility for those

marginalised and more vulnerable in our community. The EoC creates a positive moral

obligation to care. Where the people in a position of influence and power are the

beneficiaries of a system established and perpetuating historical and/or current inequities

(racism, sexism, colonialism, slavery etc), as is the case for sports organisations, then through

this lens those organisations have a higher duty to be inclusive and care for members of our

community who have been excluded from decision-making positions in our sports (for

example, women in Publication #3 and transgender athletes in Publication #10). Full

inclusion requires leaders to embrace four ethical elements: attentiveness, responsibility,

competence and responsiveness (Tronto 2010). The lack of ethics in sport leadership and

poor structural governance creates a culture where cheating through doping and match-fixing,

and external and internal corruption threats, are not only permitted, but may also be

encouraged, to thrive. Many of these solutions are further explored in the following chapters.

1 Publication #9 (Ordway 2014) also set out definitions of the term “match-fixing”, which were later refined in Publication #1 (Ordway & Opie 2017 pp40, 53 and 54).

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The case studies were chosen through opportunities presented to be personally involved,

which allowed for greater insights to analyse the strength of the EoC approach, and to create

impact in real time.

2. Purpose and Background

Inspired by the idea of “moral repair” (Walker 2001), a number of risk management

strategies have been assessed, through original case studies, to promote the idea that, in

combination, a range of ‘tools’ can be used by stakeholders to protect the integrity of sport.

In combination, it is proposed that these strategies will strengthen resistance to corrupt

influences and serve to restore trust in the sporting public. Corruption and poor on-field and

off-field choices by players and officials directly impact on the ability of organisations to

promote the “spirit of sport” (WADA 2015 p14). By adopting an EoC approach, it is

expected that participation rates will increase, and support through sponsorship, broadcasting,

ticketing and merchandising will continue to grow, and in turn encourage the community to

embrace healthy lifestyles. The non-exhaustive list of risk reduction strategies explored

include: engaging in collaborative partnerships, strengthening legislative frameworks and

sport policies, (including international conventions), prioritising athlete welfare and

empowerment, and promoting concepts of ethical leadership and good governance, including

transparency, accountability, independence, diversity and inclusion. These strategies are

aimed at combating a tendency in sport to resist transparency, leading to the monopoly of

control and homogeneity of ideas.

As clarified in Publication #1, merely focusing on “cheating to win” and “cheating to lose” in

isolation means that sports organisations and regulators will miss seeing that these are

symptoms of larger, more complex, challenges, requiring a holistic, risk reduction, and

prevention approach. In line with the sport-specific definition of “corruption” proposed by

Masters and Graycar: “the deviation from public expectations that sports will be played and

administered in an honest manner” (Masters & Graycar 2015 p57), this thesis distinguishes

between ‘on-field’ manipulation and ‘off-field’ corruption (as defined by UNCAC 2005).

This is also the line drawn by the candidate and Opie in dividing the subjects: “Sports

Integrity & Investigations” and “Corruption in International Sport” in the Master of Law

(specialising in sports law) at The University of Melbourne. This is also reflected in the

framing of Publication #1, Ordway & Opie (2017) and by authors including Misra et al

(2013). Publication #1 reflected our thinking at that time, namely that: “the audience is

entitled to rely on the outcome of a match or competition on the basis that it has been played

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in accordance with the sport rules. This suggests that the outcome, or elements of the

competition leading to the outcome, have not been affected by either cheating to win (e.g., by

doping) or cheating to lose (e.g., match-fixing). In that sense, not only does the competition

have integrity, but so do the athletes who participate in it. This provides a normative, formal,

or rule-based definition of the integrity of a sporting competition” (pp40-41).

Some of the initial ideas on how to address sport integrity threats were explored in “Sports

Governance: Doping and Integrity Measures” (Ordway 2013 Annexure B(b)(i) p2) and in the

conference presentation to ANZSLA:

Until now, integrity in sport was primarily defined by anti-doping efforts . . . . An understanding of anti-doping though is not sufficient when looking at strengthening the integrity of sport. You don't have to look further than Dr Bruce Reid's appeal to the Victorian Supreme Court last month for a recent example. Dr Reid claimed that the AFL Commissioners were not sufficiently independent to provide him with a fair hearing. Dr Reid argued that, as the AFL was actively involved in the ASADA investigation into the Essendon supplements regime, the AFL was conflicted out of then hearing his code of conduct case. The Essendon case study, and the AFL's response to it, continues to raise issues around governance, integrity and the concept of the "spirit of sport", and their interplay with the doping rules.

The newly expanded Commonwealth Government National Integrity of Sport Unit (NISU), has already galvanised the various State and Territory Attorneys-General to harmonise match-fixing legislation throughout Australia. Going beyond ASADA's remit in performance enhancing drugs, NISU plans to review the use of alcohol and illicit drugs in sport, as well as drugs not yet approved by the Therapeutic Goods Administration for human use, and other integrity challenges around ethical behaviour, including corruption and fraud. This will obviously require close collaboration with other State and Commonwealth agencies, NGOs and academics to achieve these outcomes.” (Ordway 2013 Annexure B(b)(ii) p2)

Aimed at highlighting that Australia is not immune from the threats to sports integrity, these

early publications began to make recommendations on proposed solutions,2 which have been

developed further throughout this PhD research.

3. Design and Implementation

In the second part of Publication #1, Ordway & Opie (2017) outline a range of possible risk

management strategies, headed: “Solutions: anti-corruption strategies and their application to

sport”. The solutions outlined are:

i. Leadership: ethical decision-makingii. Partnerships: information-sharing and inter-agency collaboration

iii. Good governance: transparency and accountability (including Gender equity)iv. Awareness and education

2 See for example Ordway 2016: Annexure B(k); Annexure B(g); Annexure B(h) and Annexure B(i)

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v. Sport industry regulatory frameworksvi. Early warning systems

vii. Whistleblowing and reporting systemsviii. Integrity units, officials and networks

ix. Legislation and the role of penal measuresx. Asset protection: athlete welfare; and

xi. Research and facilitation of new ideas and approaches

Each of the counter-measures were defined and case study examples cited throughout. In

Chapter 2 of this thesis, two aspects of ‘good governance’, namely, independence and gender

equality are examined. As was highlighted in the 2016 Opinion piece published by

Transparency International, (Ordway 2016 Annexure B(j)), the International Olympic

Committee [IOC] and the World Anti-Doping Agency [WADA] are inextricably linked,

which is impacting on WADA’s ability to fulfil its mandate. In Publication #2, Nehme &

Ordway (2016) consider what ‘good governance’ means in the context of WADA’s hybrid

public-private governance structure. This analysis suggests that WADA’s lack of structural

independence and conflicts of interest have contributed to the highly publicised international

criticism of WADA, particularly in response to allegations surrounding alleged doping by

Russian athletes and the corruption alleged by members of the International Association of

Athletics Federations [IAAF]. As was outlined in Ordway (2011), these scandals and the

resulting criticism suggests that WADA is failing in relation to two crucial strategic

measures, namely; “organisational credibility” and “stakeholder acceptance” (Ordway 2011

pp2-3).

One of the recommendations made by Nehme & Ordway (2016) in Publication #2 to assist

WADA in strengthening its governance, is for WADA to improve its transparency and

accountability, including introducing measures aimed at improving gender diversity on

WADA’s Foundation Board and Executive Committee (Nehme & Ordway 2016 pp228-230).

The argument mounted is that good governance assists organisations, such as WADA, to

achieve their mission, and is a risk reduction strategy against corruption and doping. This

recommendation leads into Publication #3 “Gender Equality Achieved Through Love:

promoting an Ethics of Care Approach in Football (FFA)” [unpublished], which reviews the

equity measures adopted by the Football Federation of Australia [FFA] to comply with the

Fédération Internationale de Football Association [FIFA] Statute. This article cites the

gender equity measures adopted by the IAAF reform process as one of the examples

considered by the independent body established to assist the FFA. A number of these ideas

were also explored through 2014 contributions, including Annexure B(c) and Annexure B(d),

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and in several conference presentations, as summarised by Annexure B(n). The idea of

gender equity measures developed through an EoC approach was also explored through

consulting work done on behalf of the United Nations Office on Drugs & Crime (UNODC)

Education for Justice initiative (Ordway 2018 Annexure B(p)).

Chapter 3 of this thesis reviews the information sharing and inter-agency collaboration efforts

adopted by the Australian Sports Anti-Doping Authority [ASADA] (Publication #4 Ordway

2013(a)) and by the Australian Federal Police (AFP) in the lead up to the major sporting

events held in Australia in 2015 (the men’s Asian Football Cup and the International Cricket

Council men’s World Cup) in Publication #5 (Ordway 2017). This chapter argues that

information-sharing and inter-agency collaboration can be used effectively to help reduce the

risk of both anti-doping and match-fixing through deterrence and detection. For example, an

understanding of the benefits of information sharing and inter-agency collaboration efforts

was developed through working over many years with a number of NADOs, cities bidding

for events, and those hosting major sports events, prior to commencing this research.

Establishing relationships of trust through an EoC approach is shown to be crucial to create

an environment where inter-agency collaboration can be successfully incorporated into

traditional sports integrity efforts, whether or not information-sharing has been enshrined in

legislation or other agreements. In Publication #5 (Ordway 2017), it was described how

partnerships between law enforcement agencies, Government and sports organisations were

forged based on respect and a shared integrity purpose. The leadership and staff at each of

the organisations proactively cultivated relationships at different levels based on mutual

understanding and trust. Annexure B(m) explored this concept further by summarising a

presentation made at the 2018 LawAccord conference on how cities bidding on major events,

including the summer and winter Olympic Games, can respond to the new IOC requirement

that inter-agency collaboration considerations are incorporated into traditional sports integrity

efforts.

Chapter 4 of this thesis reviews national and international legislation and regulatory measures

as tools for improving sports integrity. As flagged in Publication #4 (Ordway 2013(a)), and

further explored in Publication #6 (Ordway 2013(b)), ASADA struggled to meet its

obligations as the National Anti-Doping Organisation for Australia without information-

sharing legislation. The ASADA Act was amended to allow law enforcement agencies (State

and Federal), and the Commonwealth Government bodies responsible for reviewing imported

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goods, the Therapeutic Goods Administration and the Australian Customs and Border

Protection Service (now called Australian Border Force), to share information with ASADA.

This power is important for ASADA to gather information relating to the possession and

trafficking of prohibited substances (as defined by WADA 2015).

In Publications #7 (Ordway 2018(b)) and #8 (Ordway & Passas (2016)), the extent to which

international conventions can, and should, be applied to reduce the risk of sports corruption

were reviewed. This tool is particularly relevant for international sports organisations, which

are otherwise relatively unaccountable. Publication #7 (Ordway 2018(b)) considers whether

the recommendations made following the recent review into the integrity of Australian sport,

including ratifying the Macolin match-fixing convention, support enacting national anti-

match-fixing legislation. Publication #8 (Ordway & Passas (2016)) suggests that the UN

conventions on anti-corruption (UNCAC 2005) and transnational crime (UNTOC 2000)

could be more widely applied to sport.

Chapter 5 of this thesis presents the unique application of the anti-corruption concept of

“asset protection” to sport by recommending that sports organisations prioritise athlete

welfare to minimise the risk of integrity threats. Thought of in the integrity context, ‘athlete

welfare’ is an original adaptation of an established anti-corruption strategy (ACLEI n.d.). An

EoC approach empowers marginalised people, so that their vulnerability cannot be so readily

exploited by organised criminals and those within the sporting community seeking to

maintain the status quo. Hill (2008) stressed that approaches to fix matches are much less

likely to be accepted if players feel they are fairly paid and treated. An EoC approach does

not simply involve money, but also requires creating an environment of inclusion. The case

studies examined focused on gender equality measures, the participation of transgender

athletes, athletes serving anti-doping bans, and match day officials. It is clear that people

with drug, alcohol and gambling addictions have been targeted by forces seeking to

manipulate sporting events for financial and positional gains (Hill 2008). It is also

hypothesised that female athletes are at greater risk of being targeted by match-fixers as they

are generally poorly paid and supported (Douglas 2016). In Publication #9 (Ordway 2014),

and then reflected on four years later in Annexure B(o), the importance of financial security

in supporting athlete welfare was highlighted. It was suggested there that the education and

other strategies employed by the administrators for the German national football team, and

the professional league, to support their male players were extremely robust and would likely

be felt through a cultural change that would have a ripple effect into the other national team

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https://en.wikipedia.org/wiki/Australian_Customs_and_Border_Protection_Service

https://en.wikipedia.org/wiki/Australian_Customs_and_Border_Protection_Service


members represented in the league. It was particularly anticipated that any approaches from

former athletes, administrators or external criminal elements to fix matches would be much

less likely to be accepted if players felt that their welfare was prioritised.

The second aspect of athlete welfare examined in this Chapter 5 is inclusion. The EoC idea

of vulnerable athletes requiring greater care, and thereby starting from a position of inclusion,

was first explored in Annexure B(k) (Ordway 2017). This article, “Should A Doping Ban =

A Life Sentence?”, served as an appeal to WADA to relax the rules to allow athletes serving

anti-doping bans to return to their sporting communities, during their exclusion from

competitive sport, to support their mental health. The EoC approach was then also used to

review the AFL’s decision to exclude transgender athlete, Hannah Mouncey, from the

women’s league. The ideas were first developed in this context with legal colleague, Alistair

Twigg, in Annexure B(l), before being expanded on in Publication #10 (Ordway 2018(a)).

The inspiration for these articles came through having personally witnessed the experience by

Mouncey in her transition from male handballer to female footballer, and the way that binary

sport structures created additional barriers for already marginalised people.

4. Outputs/Outcomes, Reflections and Future Development

As set out in the concluding chapter of this thesis, further research is required on the

application of the identified risk reduction strategies, and in the development of new

strategies, to determine whether they can achieve the aim of assisting the various elements of

the sporting eco-system to become more resistant to corrupt approaches, both internal and

external, and to restore trust in the sporting public.

Literature Review and Theoretical Framework:

While Publication #1 (Ordway & Opie 2017) serves as a useful summary of the literature at

that time, as sports integrity is an emerging field, it is also useful to survey the literature from

an historical perspective here. As will be set out below, the concepts associated now with

sports integrity have been subject to significant change over a very short period of time.

Beyond what is consistently agreed as ‘wrong-doing’ within the sports integrity “core of

certainty”, namely ‘doping’ and ‘match-fixing’, the types of behavior potentially falling

within the “penumbra of uncertainty”, as described by Gardiner’s Model of Sport Related

Corruption, is extremely broad and is unlikely to be universally agreed on in the near future

(Gardiner 2018 p10). As a sports lawyer, and noting that to date most solutions have

primarily had a regulatory focus, this thesis relies heavily on a legal perspective, but has also

9


utilised approaches and perspectives from sports management. Sports law and sports

management are also relatively new academic fields of endeavour. This thesis contributes to

assist in both defining ‘sports integrity’ and in a holistic, multi-disciplinary approach, makes

recommendations on how to prevent, or at very least, reduce the risk, of threats to the

integrity of sport.

Genesis of Sports Law and its contribution to Sports Integrity

To understand how and why ‘sports integrity’ has been defined the way it has in this thesis, it

is important to consider the role lawyers and legal thinking have played in the sports industry.

While the American Sports Law Association (SLA) was established in 1975 and recognised

by the American Bar Association in 1978 (Shefsky n.d.), the Australian and New Zealand

Sports Law Association (ANZSLA) was not founded until 1990 (ANZSLA n.d.).3 Mitten

and Opie (2010) identified that: “the first treatises on sports law in both the United States and

Australia were not published until the late 1970s and 1980s” (F/N5 p272). This timing

reflects what Parrish (2003) describes as:

The increasing frequency of legal disputes involving sport throughout the 1970s and 1980s led to closer academic scrutiny of how law affects sport. As the volume of disputes increased further and as courts began to develop a line of legal reasoning concerning sport, so academics identified the emergence of a field of law- sports law. Slowly attention began to focus on the dynamics driving the birth of sports law. The commercialisation of sport emerged as a leading explanation. Commercialisation and juridification are therefore considered parallel developments (p20).

The first Australian sports law textbook was written by legal practitioner/ academic Maurice

Kelly in 1986. In re-reading the Preface of Sport and the Law: An Australian Perspective,

(Kelly 1986) it was delightful to discover that this thesis is a continuation of Kelly’s legacy.

Kelly stated that his text: “stems immediately from a pioneering course I conducted on that

subject at the Canberra College of Advanced Education [now the University of Canberra]. . .

. There were no Australian precedents for a syllabus and no texts with the required emphasis

and range. Scattered through the journals there was good legal writing relating to sport, but

the total was fairly meagre. One had to start pretty much from scratch.” (Kelly 1986 p vii).

In the UK, Edward Grayson’s Sport and the Law appeared in 1988 (Grayson 1988), while

Deborah Healey’s first edition text of the same name was published in 1989 (Healey 1989).

Healey is also one of the editors of Doping in Sport and the Law (2016), which is the text that

Publication #2 appears in (Nehme & Ordway 2016).

3 ANZSLA was founded by several gentlemen, including Kelly (1986) and Publication #1 co-author Hayden Opie.

10


‘Sports integrity’ however was not referred to in those early works, except to include

‘doping’ and ‘discrimination’, both of which will be addressed below. As the role of lawyers

in the sports integrity space has grown in recent decades, then this has been reflected here by

using a legal lens to inform the majority of the publications in this thesis. Most obviously

this can be seen through the inclusion of the solutions identified in Publication #1 (Ordway &

Opie (2017)): (v) “Sport industry regulatory frameworks” and (ix) “Legislation and the role

of penal measures”, which were explored in several other publications, including on:

enhancing ASADA’s powers (Publications #4 and #6 Ordway 2013(a)(b)), inter-agency

collaboration (Publication #5 Ordway 2017), expanding Australia’s sports integrity

legislative framework (Publication #7 Ordway 2018(b)) and the application of international

conventions to sport (Publication #8 Passas & Ordway 2016).

“Sports Management” Approach

Historically, sports management has come from a physical education tradition which

recognised in the early-mid 20th century that successful sports programs and events required

an emphasis on sports administration training (Zeigler 2007). Schulenkorf and Frawley

(2017) note that: “While in the past sports management was often seen as a by-product of

business education, today . . . research in sport management has developed into a well-

respected and rigorous field of study.” (p1-2) The North American Society for Sport

Management (NASSM) was founded in 1985 (NASSM n.d.), and the European Association

for Sport Management (EASM) was established in 1993 (EASM n.d.). The first edition of

“Sports Management in Australia: An Organisational Over-view” was published in 1995

(Shilbury 1995), and its author helped found the Australian and New Zealand equivalent of

NASSM and EASM, SMAANZ, the same year (SMAANZ 2017). Shilbury referred to the

field of sports management as being still in an “embryonic” stage, when he conducted his

study of journal articles published over the period 1987-2007. Shilbury noted that: “The field

of sport management has clearly made progress in this regard, but there is some way to go.

From essentially a no-journal “state” in 1986, to seven ranked sport management and

marketing journals, plus a number of others in related fields such as finance, law, economics,

sociology, and history, considerable progress has been made.” (Shilbury 2011 p438)

Originally dominated by sponsorship and marketing research, sports management has

expanded in recent years to include aspects of sports integrity, particularly in relation to how

poor governance practices can impact on an organisation’s revenue stream and/or the on-field

athletic performance. This thesis takes this approach a step further, and suggests that good

11


governance can improve integrity outcomes. In Publication #1 (Ordway & Opie (2017)), it is

argued that if ‘good governance’ is understood to include transparency, accountability and

ethical decision-making, then the creation of a culture led by these principles will reduce the

risk of integrity breaches: “Corruption cannot occur without the involvement of people who

lack integrity. The higher up the leadership ladder corruption occurs, the more evil it

becomes” (p42).

For this reason, Ordway & Opie (2017) Publication #1, identified the third solution as “Good

governance: transparency and accountability (including gender equality)”. However, as

acknowledged by Adriaanse, Cobourn and Frawley (2017): “Sports governance is a relatively

new concept and relates to the governance of sport organisations. As a field of study, it

emerged approximately a decade after the commencement of research into corporate

governance” (p12). Mainstream management theories, corporate governance and anti-

corruption research have been applied throughout this thesis, and particularly in the case

studies of WADA (Publication #2) and the FFA (unpublished Publication #3) as set out in

Chapter 2.

Sports integrity in also increasingly being expanded to include considerations from the athlete

perspective. This has been reflected through the novel application of the anti-corruption idea

of “asset protection” to athletes and other key stakeholders in the game as set out in Ordway

& Opie (2017) Publication #1 as solution (x) “Asset Protection: Athlete welfare”. In

“Chapter 5: Asset Protection (Athlete Welfare): Financial Security and Inclusion” the

integrity risk of financial insecurity and a culture of corruption identified by Hill’s research

(Hill 2008; 2013) is explored in the context of the German men’s football success in the 2014

FIFA World Cup in Publication #9 (Ordway 2014). The integrity risk of exclusion created

via restrictive eligibility criteria is also examined through the case study of the AFL and

Mouncey (Publication #10 Ordway 2018(a)).

This new athlete-centric focus is demonstrated through the establishment of player

associations, such as UNI Global Union and the Global Athlete alliance, and organisations

supporting elite athletes transitioning out of sport, such as Crossing the Line Sport

(https://crossingthelinesport.com/). Athletes are increasingly demanding, and receiving, a

seat at the table. Global Athlete, launched in March 2019, is focused on improved athlete

rights and compensation, including athlete welfare (Global Athlete, n.d.). The World

Players Association, Executive Director, Brendan Schwab, has written extensively on athlete

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https://crossingthelinesport.com/


rights (eg: Schwab 2017; 2018). The UNI Global Union and World Players Association has

published a Universal Declaration on Players Rights which includes as its first principle:

“Every Player . . . HAS THE RIGHT to a sporting environment that is well governed, free of

corruption, manipulation and cheating and protects, respects and guarantees the fundamental

human rights of everyone involved in or affected by sport, including the player.” (UNI Global

Union 2017). The new Centre for Sport and Human Rights similarly promotes that human

rights: “should also be the starting point for engaging with critical issues such as integrity,

equality, development, and fair play.” (Centre for Sport & Human Rights 2018 Principle 1)

Defining ‘Sports Integrity’

Serving both as an extensive literature review, and in reframing the discussion around sports

integrity to create a holistic solutions-based focus, Publication #1, Ordway & Opie (2017),

demonstrates how sporting institutions and organisations are increasingly under threat from

those seeking to disrupt or unfairly profit from sport. Sports integrity is exceptionally

difficult to define. While there seems to be general agreement about the positive attributes or

values sought to be emulated, the understanding of the types of ‘wrong-doing’ encapsulated

by the term ‘sport integrity’ varies wildly – both within Australia and internationally.

The idea to examine the philosophy of sport has been around since the late 1960s, and the use

of the term “Sports Ethics” soon after (McNamee 2007). The IOC concept of “Olympism” is

expressed to include:

1. . . . Olympism seeks to create a way of life based on the joy of effort, the educationalvalue of good example, social responsibility and respect for universal fundamentalethical principles

4. . . . Olympism seeks to create a way of life based on the joy of effort, the educationalvalue of good example, social responsibility and respect for universal fundamentalethical principles (emphasis added: IOC 2013 p11)

It is not clear what these “fundamental ethical principles” are, or in fact if they are

“universal” (Mazanov et al 2019). The WADA Code takes ‘Olympism’ a step further

through the creation of the “spirit of sport” defined through a range of values, including:

• Ethics, fair play and honesty• Health• Excellence in performance• Character and education• Fun and joy• Teamwork• Dedication and commitment

13


• Respect for rules and laws • Respect for self and other participants • Courage • Community and solidarity (WADC 2015 p14)4

As outlined in Publication #1 Ordway and Opie (2017), this thesis on sports integrity

solutions has chosen to use the narrow, rules-based focus on ‘cheating’, deviance or ‘bad’

behaviour to frame the discussion. Bowen et al (2017) observed that, outside of the sporting

realm, people don’t generally use the term “cheating”: “One working definition of cheating in

sport is: “Acting with the intent to gain an advantage by acting outside the stated rules and

context of the sport with the hope of going undetected”. According to this definition,

cheating requires that the following three criteria are met:

1. Rule breaking 2. Intent to gain an advantage. 3. Attempt to avoid punishment.” (Bowen et al 2017 at p25)

In what appears to be one of the earliest uses of the phrase, Senator McCain introduced the

bill which became the Amateur Sport Integrity Act into the U.S. Senate in 2001 (S.718). This

Act provided research funding for detecting performance enhancing drugs and addressed

gambling related match-fixing (Ordway and Opie 2017 F/N4 at p40). ‘Sports integrity’ at

that time then was understood to encapsulate only doping and match-fixing.

In an attempt to simplify and create a catch-phrase reflecting these core elements, particularly

when commenting in sport forums or in the media, the candidate coined the terms “cheating

to win” to refer to doping and “cheating to lose” to include match-fixing.5 This is obviously

over-simplistic, and Publication #1 Ordway and Opie (2017) outlined key terminology and

definitions that are considered throughout the thesis, including “Integrity of sport”,

“Corruption”, “Doping”, “Match-fixing” and “Sports betting”. While this behaviour-driven,

focus on ‘wrong-doing’ could be criticised for being ‘negative’, it is preferred over the

‘positive’ and values-based approach in defining sports integrity, which does not clarify what

behaviour is prohibited. For example, the National Sport Integrity Unit [NISU], established

by the Australian Government in 2012, defines sports integrity as:

The manifestation of the ethics and values which promote community confidence in sports, including:

4 The “Spirit of Sport” concept is attributed to Angela Schneider: cited in Mazanov (2009) and Mazanov & Connor (2010). 5 These phrases were first featured in Publication #9 (Ordway 2014 at p7 and repeated in Publication #2 (Nehme & Ordway 2016 at p209), Publication #8 (Passas & Ordway 2016 at p126), and Ordway 2016: Annexure B(k); Annexure B(g); Annexure B(h) and Annexure B(i)), and it was pleasing to see it was also picked up in the Wood Review at p41.

14


• fair and honest performances and outcomes, unaffected by illegitimateenhancements or external interests; and

• positive conduct by athletes, administrators, officials, supporters and otherstakeholders, on and off the sporting arena, which enhances the reputationand standing of the sporting contest and of sport overall. (AustralianGovernment Department of Health 2016).

NISU’s website then follows this definition with “What is match-fixing in sport” and “What

is doping in sport” clarifying that sports integrity is defined through these two forms of

‘wrong-doing’. (Australian Government Department of Health 2016).

In the Sport Australia “Clearinghouse” resource on “Integrity in Sport”, the NISU definition

above is referred to, together with the earlier Australian Sports Commission [now Sport

Australia] statement, which, while not using the term ‘sports integrity’, states that:

the main responsibility for this lies with decision makers at every level of sport, who should ensure that all policies, programs and services are based on the principles of fairness, respect, responsibility, and safety. (Australian Sports Commission, The Essence of Australian Sport, (2012) cited by Sport Australia 2019).

As this statement also does not clarify the prohibited behaviours, the Clearinghouse goes on

to explain that: “some of the key integrity and ethical issues facing sport include:

a) Child & Member Protectionb) Drugsc) Ethical Sponsorship and Advertisingd) Match-Fixing and Illegal Sports Bettinge) Sexuality and Gender Perspectives on Sports Ethicsf) Sports Governance Principles and Resources”

The Integrity in Sport “threats” are identified as: “match fixing, results manipulation,

gambling, doping, corruption, discrimination, general member protection issues, and

unethical behaviour.” The Clearinghouse also addresses the breach of sport rules and

“gamesmanship” under another heading in this Integrity in Sport section, “Ethical decision-

making” (Sport Australia 2019).

This values-based definition approach mirrors the much earlier Canadian response to the

positive drug test of sprinter, Ben Johnson, at the 1988 Seoul Olympic Games. The Dubin

Inquiry and Dubin Report (Dubin 1988) recommended that the Canadian Centre for Ethics in

Sport (CCES) be established. Necessarily focusing on anti-doping, the CCES Vision and

Mission are also stated in the positive format:

Vision: Sport in Canada that is fair, safe and open to everyone.

15


Mission: With the knowledge that true sport can make a great difference for individuals, communities and our country, the [CCES] will work collaboratively to: — Activate a values-based and principle-driven sport system; — Advocate for sport that is fair, safe and open; and — Protect the integrity of sport”. (CCES, n.a (a))

What ‘The integrity of sport’ means is not clarified, except by reference to doping as defined

by WADA (2015) and behaviours addressed in the template Code for Prohibited Conduct in

Sport (CCES n.b.(b)). This Code prohibits conduct including broadly defined sexual

misconduct offences (including between a coach and an athlete), drink driving offences (e.g.:

by coaches), illegal drug offences, “deliberate cheating which is intended to manipulate the

outcome of a competition” (Art 7), bribery limited to that “intended to manipulate the

outcome of a competition” (Art 8) and an “attempt to cover up or conceal any conduct”

covered by this Code (Art 9). (CCES n.d. (b)).

In 2004, former UK anti-doping chief executive, Michele Verroken, called her new

consulting business, “Sporting Integrity”. Verroken perceives that sports organisations

increasingly require assistance in: “identifying, adopting and managing best practice

procedures relating to risk, ethical and integrity standards and issues

(http://sportingintegrity.com/2.html). In Japan, the Sport Integrity Unit, was established in

April 2014 to address “doping”,6 “match manipulation in sport, and promotion of good

governance in Japanese sports organizations” which it defines to include: “cheating”,

“harassment”, “racial discrimination”, bribery”, “pressure of autonomy of sport” and

“corruption in sports governance” (Japan Sports Council n.d.). More recently, the Finnish

Centre for Integrity in Sports (FINCIS) has been created to incorporate the Finnish anti-

doping agency (FINADA), and: “to reinforce an ethically sustainable sports culture in co-

operation with other parties.” While continuing the theme of defining sports integrity

through doping and match-fixing,7 somewhat uniquely, FINCIS states that its third priority is

“spectator comfort and safety” (FINCIS n.d.).

A values-based approach is critical, but this thesis argues that, at some point, these

expressions of the positive behaviours, attitudes and aspirations for stakeholders to be “good

citizens” have to clarify the prohibited or sanctionable behaviour in order for the motivations

to be understood, and appropriate policies and programs of prevention and/or enforcement to

6 Presumably in concert with the Japan Anti-Doping Agency [JADA], which has existed since 2001: http://www.mext.go.jp/sports/en/b_menu/policy/transparency/jada.htm 7 Consistent with other European organisations, such as the Council of Europe, FINCIS refers to match-fixing as ‘match manipulation’. See discussion below.

16

http://sportingintegrity.com/2.html

http://www.mext.go.jp/sports/en/b_menu/policy/transparency/jada.htm


be introduced and resourced. This necessity was also recognised by the Review of Australia’s

Sports Integrity Arrangements (known as the Wood Review). The Wood Review accepted

that the NISU definition above was appropriate, but noted that:

The [NISU] definition purposely involves a multifaceted concept that is capable of capturing the full range of corrupt activity within sport. A wide definition is required because the threats to sports integrity can be identified across a broad spectrum of activities, ranging from those involving serious and organised crime through to minor issues of ethics and behavioural values. It can impact on all manner of stakeholders and reach almost every aspect of the sporting environment, including the sporting contest itself, the way that athletes are managed and developed within sporting organisations, player transfers, the governance and general management of sporting organisations and clubs, appointment of individuals to governing bodies of sporting organisations, sponsorship, media, the marketing for sporting events, and the bidding process for the right to host major international tournaments. (Australian Government Department of Health 2018 at p28)

In Publication #7 (Ordway 2018(b)), it was observed that: “While the Wood Review

acknowledges that “sports integrity” is much broader than match-fixing and doping”, it is not

clear whether sports integrity should include the issues outlined under [Wood Review] Key

Finding 6: “Equally important is the ability of governments and the sport sector to adequately

respond to other integrity issues in the sporting sphere including: harassment, bullying and

discrimination; child protection; health and safety issues; accreditation of athlete support

personnel; regulation and supply of performance and image enhancing drugs, including in

sporting and dietary supplements; gender issues; and corruption of new and emerging sports

without identifiable controlling bodies (for instance, e-sports).” (Ordway 2018 p17 citing

Australian Government Department of Health 2018 p28 and p37).

The Wood Review states that a new national sports integrity body should focus on: “possible

doping activity and manipulation of sports competitions and related corruption” [emphasis

added] (Australian Government Department of Health 2018 p11). This suggests, as was

observed in Publication #7 Ordway (2018(b)), that the Wood Review appears to unduly

emphasise the corrupting effect that sport betting, wagering and gambling can have on sport,

rather than considering other forms of corruption (Australian Government Department of

Health 2018 p17). As expressed by McNamee (2013): “there is a dire and pressing need for a

lexicon of corruption in sport. Much of it may be gambling related but surely not all is”

(p174). This emphasis on the gambling threat to sport is also reflected in a recently published

sports law book by Haynes and Marcus (2019) which includes chapters on both doping and

the: “Criminal liability, ethics and integrity in sport”. The section on “Ethics and Integrity in

17


Sport” also suggests that “integrity” is defined through gambling fraud, as it is an update of

Marcus’s 2012 article on sports betting in the various Caribbean countries (pp209-235).8

Bowen et al (2017) also include a section on the “History and dangers of sport gambling”, but

note that: “although sports gambling does not always lead to corruption and scandal, there are

many instances where it has (p186).

If the Wood Review concept of “related corruption” is limited to match fixing (rather than

manipulation – see below) and wagering, it leaves untouched, issues such as eligibility and

classification cheating (whether via age, weight, gender and para-sports), and athlete and

official protection against abuse and exploitation (whether financial, legal, physical, sexual or

emotional for example). Publication #7 (Ordway 2018(b)) also notes that the Wood Review

does not clarify whether it is intended to included UNCAC (2005) defined corrupt behaviours

(as set out in Publication #8 Passas & Ordway 2016), and therefore whether the new body

would have power to investigate and regulate behaviour including: vote-rigging, extortion

and bribery (e.g.: in the awarding of event hosting rights or player transfers), fraud and

misappropriation of membership organisation funds (e.g.: through property, procurement,

staffing, salary cap breaches, expenses and remuneration), nepotism, favour swapping, undue

influence resulting in ‘pork barrelling’, or impacting on sports development/ infrastructure

grants processes, media rights, sponsorship and ticketing impropriety, and/or poor

accountability and governance (Publication #7 Ordway 2018 p17).

In the Australian Government response to the Wood Review, the Commonwealth recognised

the external and internal threats to sport, and recommended that a new body be established in

July 2020 to ensure that Australian sport is: “clean, fair, safe and inclusive” (Australian

Government Department of Health 2019 p9). However, if a broader “safe sport” scope is

attributed to sports integrity, then the idea of ‘wrong-doing’ must necessarily also be

significantly broadened. The Government’s aspiration is clarified as follows:

The Government acknowledges the Wood Review finding that sports are challenged by a range of mounting integrity threats, which include the increasing sophistication and incidence of doping, the globalisation of sports wagering particularly through rapidly growing illegal online gambling markets, the infiltration and exploitation of the sports sector by organised crime, corruption in sports administration and growing participant protection issues – particularly the sexual abuse of minors in sporting environments (including recent revelations of a systematic sexual abuse of US gymnasts). Australian sport has been affected by major sports integrity scandals in

8 This chapter is also expanded to include a case note on bribery relating to the “cash gifts” provided to several Caribbean football associations by Mohamed Bin Hammam in lead up to the FIFA presidential election, together with commentary on ‘gamesmanship’ in the context of ball tampering in cricket (Haynes & Marcus 2019).

18


recent years – representing the local impact of a globally deteriorating sports integrity environment. We have had major doping scandals in professional sporting codes, convictions for matchfixing involving international match-fixing cartels targeting community football clubs through to local Australian tennis champions, and serial illicit drug scandals involving elite athletes. The findings of the recent Royal Commission into Institutional Responses to Child Sexual Abuse underlined the need for an ongoing commitment to protecting children in sporting environments. Ball tampering in cricket shocked the nation and raised questions about our commitment to fair play in sport. (Australian Government Department of Health 2019 p4)

The concern is that if sports integrity is not tightly defined to be limited to the wrong-doing

that directly impacts on the game being played on-field, then it will end up being a ‘catch-all’

phrase to incorporate all the “bad and ugly sides of sport” (Frisby 2015). As Frisby (2015)

correctly observes, many of these “ugly sides” are the same as the:

societal ills that concern us more generally . . .: from corruption, bribery, greed, and abuse, among other scandals; to athletes and workers forming unions to protect their rights; to the environmental destruction that occurs to make way for facilities, sporting events, and outdoor pursuits. Other societal ills reflected in sport include the exclusion of women and minorities in positions of power; the discrimination faced because of race, disability, sexuality, and other markers of difference; and the escalating salaries of sport celebrities that contrasts sharply with the impoverished conditions of laborers (many of whom are children) producing sport products in Third World countries. Other examples include the pressures on athletes to take performance enhancing drugs in order to “make weight” or play when injured; tobacco and alcohol companies using sport to advertise harmful products; and athlete and fan violence that is often glorified in the media (p3).

The question is where the line should be drawn. McLaren (2010) focused on doping, sports

gambling and “match-fixing as corruption” when he asked: “Is sport losing its integrity?”

(McLaren 2010). In this thesis, while behaviour falling into the definition of “corruption”

(UNCAC 2005) has been reviewed, primarily the focus is on doping and match-fixing.

Doping as a Sports Integrity Threat

There is a general consensus that doping, as defined through the anti-doping violations under

the World Anti-Doping Code (WADA 2015), is one of the key threats to sport integrity.

What was originally referred to as “doping”, or in some cases “drug abuse”, “anti-doping”

regulation, as it is now known from the preventative perspective, as also gone through a

transformation over time. First addressed through a sports medicine lens, lawyers have

increasingly added a strong regulatory over-lay. It was also as late as 2009 where there was

still felt the need to argue for a social science, rather than purely the traditional sports

medicine, ‘hard science’ and/or legal perspective to be applied to anti-doping (Mazanov &

McDermott 2009). This thesis, in providing a holistic, multi-disciplinary approach, helps to

contribute to this broadening development.

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Pioneers in this sports medicine approach to anti-doping included prominent members of the

international Olympic movement: Arne Ljungqvist (Renstrom 2014), and Prince Alexander

de Merode (Dimeo et al 2011; Hunt 2007). Policies prohibiting doping began with individual

sports (eg: IAAF 1927-28 s22 p55; Siekmann et al 1999), which then became the IOC’s

Olympic Movement Anti-Doping Code and Prohibited List (Henne 2014). The national

legislation in France (1965; Chaker 1999) led the way to the Council of Europe Anti-Doping

Convention (Council of Europe 1989), ultimately culminating in the creation of WADA in

1999. Sports became signatories to the first World Anti-Doping Code from 2003 (WADA

2015 as amended), while Governments ratified the UNESCO Convention (UNESCO 2005).

In line with the WADA Code, most NADOs use a version of the standard naming

convention, that is [Nation] Anti-Doping Organisation, rather than the broader sports

integrity language, as has been seen in anti-corruption bodies.9 Locally, ASADA was, prior

to 2006, the Australian Sports Drug Agency [ASDA]. The creation of WADA has led to

NADOs narrowing their focus to anti-doping, rather than having a broad, ethical remit, as

demonstrated through the naming conventions of, for example: the “Anti-Doping and Ethics

Department” of the Norwegian Olympic Committee and Confederation of Sports, which

became Anti-Doping Norway in 2003 (ADN n.d.). The UK Sport, “Ethics and Anti-Doping

Department” changed to the “Drug Free Sport Directorate”, and in 2009 became a stand-

alone entity, UK Anti-Doping (UKAD n.d.). Some NADOs however have chosen “drug

free” over “anti-doping” language, for example, the South African Institute for Drug-Free

Sport has existed since 1998 (SAIDS n.d.), while the “New Zealand Sports and Drug

Agency” established in 1994 changed its name to Drug Free Sport NZ in 2007 (DFSNZ

2019). The anti-doping regulatory and policy changes have been closely examined by many

practitioners and academics,10 and yet little analysis has been done on whether the ‘negative’

terminology of ‘anti-doping’ remains appropriate in the current climate. Throughout this

thesis, “doping” has been used to refer to the prohibited behaviour, while “anti-doping”

covers the preventative and enforcement mechanisms.

9 eg: the Australian Commission for Law Enforcement Integrity was established under the Law Enforcement Integrity Commissioner Act 2006. Australia and Hong Kong both have “Independent Commission[s] Against Corruption”, while Trinidad & Tobago and the Turks & Caicos Islands both use the language of “Integrity Commission[s]”. Jamaica prefers to use the title “National Integrity Action” for its equivalent body: Anti-Corruption Commission (Cayman Islands) (2019) 10 eg: Rofe & Ordway 1998; Houlihan 1999 and 2002; O’Leary 2001; Yesalis & Bahrke 2002; Henne 2014; and Hunt, Dimeo & Jedlicka 2012

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“Match-fixing” v “Match Manipulation”

In the media, by academics, and in various sports policy documents, “match-fixing” and

“match manipulation” have been used interchangeably.11 However, recent usage has

attempted to suggest that match-fixing is now merely one form of “manipulation”, which also

includes doping. Confusion then arises whether ‘manipulation’ is the opposite term for sports

integrity. For example, as referred to above, the Council of Europe has had an Anti-Doping

Convention since 1989. Despite this, the 2014 Council of Europe Convention on the

Manipulation of Sports Competitions (the Macolin Convention), intended to address match-

fixing or ‘cheating to lose’, states that the definition of “manipulation” includes match-fixing,

doping and a range of other behaviours, as follows:

The manipulation of sports competitions, as a global concept, therefore covers various acts that may include for example doping, match-fixing, using clubs as shell companies, influencing player agents, use of insider information, conflict of interests, bad governance, etc. These acts are attempted, successfully or unsuccessfully, to change the way a competition is played and / or its result. Rendering competitions predictable (in part or entirely) ruins the basic values of sport and the interest of fair and ethical competition.12 (Council of Europe 2014 at p2)

Also apparently confused, the drafters of the UNODC and IOC (2016) Model Criminal Law

Provisions for the Prosecution of Competition Manipulation point to this definition under the

heading “Terminology” and state that:

The terms “match-fixing” and “competition fixing” have been used by a number of different institutions, as well as at the EU level. National regulations use a variety of different terms, including “sporting fraud” (e.g. India), “corruption of players” (e.g. Malta), “bribery in sporting contests” (e.g. United States) or “corrupt activities relating to sporting events” (e.g. South Africa). The [Macolin Convention] uses the term “manipulation of sports competitions”. This terminology is also used by a number of international sports organizations, including the IOC which adopted in 2015 the Olympic Movement Code on the Prevention of the Manipulation of Competitions. In this booklet, the terms “manipulation of sports competitions” and “match-fixing” are used interchangeably, except when otherwise indicated. (UNODC & IOC 2016 p6)

As there is no consensus, this thesis has used “match-fixing” consistently throughout, as set

out in Publication #1 (Ordway and Opie 2017 pp42-43).

11 See for example, the Sorbonne-ICSS Sport Integrity Research Programme (2012-14). Also the FIFA whistle-blowers hotline urges people to report “any unethical behaviour or match manipulation” (FIFA n.d.) 12 This definition is echoed in the document designed by the Council of Europe to assist countries not yet in a position to sign the Convention, the KCOOS. Council of Europe (2017) at p9

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Methodology:

While Professional Practice research does not require a “methodology” chapter as is expected

in a traditional sports management thesis, the approach adopted in this thesis is in line with

the request from the editors of Critical Issues in Global Sport Management in writing

Publication #1 Ordway & Opie (2017). Each of the chapter authors were asked to: “link

critical theory with current practice to bring their chapters to life through real-life cases and

practical examples” and include both “research-based investigations into current global issues

in sports management with dedicated critiques of contemporary cases in their own right”

(Schulenkorf and Frawley 2017 p3). The publications in this thesis have been developed

through working in NADOs, including at ASADA at a senior level, with event organising

committees and bid cities, on sports boards and tribunals, and with advocacy and networking

groups, including Women on Boards and Women Onside, aimed at creating positive change.

In this way, this can be considered empirical critical sport management research, primarily

based on document analysis and a priori direct observation (Frisby 2005).

Scholarship through teaching The original ideas demonstrated throughout this thesis have therefore come about through

having a long-established international career in the field, and through what Veal describes as

“just thinking” (Veal 1997 p69), which for extroverts means talking and thinking, whether

with colleagues, presentations at conferences and/or via regular media interviews, and then

“writing as thinking” (Creswell 2003 p54-55). As expressed by Veal (1997):

Scholarship involves being well informed about the subject and also thinking critically and creatively about the subject and the accumulated knowledge on it. Scholarship therefore involves knowing the literature, but also being able to synthesise it, analyse it and critically appraise it. Scholarship is traditionally practised in the role of teacher, but when the results of scholarship are published they effectively become a contribution to research. . . . New insights, critical or innovative ways of looking at old issues or the identification of new issues or questions – the fruits of scholarship – are also contributions to knowledge. Indeed, the development of a new framework or paradigm for looking at a field can be far more significant than a minor piece of empirical work using an old, outmoded paradigm (p68).

The scholarship in this thesis has been largely developed through initiating the creation of a

number of new undergraduate and post-graduate university subjects. This has demanded the

review and analysis of best practices and policies world-wide, both within sport and in other

industries, and questioning whether old paradigms remain relevant. The new post-graduate

subjects developed across four universities in 2013 onwards required what Reinharz and

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Davidman (1992) referred to as the mixed methods “study of what is missing” (p162). It

became increasingly clear that the previous, siloed method of examining anti-doping in

isolation to the broader integrity context internationally was counter-productive. Cheating in

sport, particularly through match-fixing and doping, needs to be addressed holistically to

determine the most appropriate ‘tools’ to use for the context. These ideas from different

sports and industries can then be shared via documenting them to assist all stakeholders to

consider new ways of thinking and approaches from outside their own sports and contexts.

Publication #1 (Ordway and Opie 2017) came about after receiving a request from the editors

to write a chapter on sports integrity. The editors agreed to include Hayden Opie as a co-

author to capture the thinking arising out of our lecturing at the University of Melbourne. In

developing what is believed to be the world’s first subject to consider the nature and

meaning of integrity in sports competition and governance, Sports Integrity and

Investigations, in the Master of Law, has been co-taught with Opie since 2014. This subject also

includes deliberations on: the criminalisation of the manipulation of sporting outcomes; the

legal regulation of gambling on sport and its relationship to integrity; regulatory measures

of sports bodies to address manipulation of sporting outcomes; doping and the criminal

law; the structure and role of investigative and enforcement bodies, including ethics

commissions and integrity units; the establishment and conduct of inquiries into sports

activities and bodies; and the powers of investigation and information-sharing of sports

bodies and relevant government authorities with particular emphasis on doping and the

manipulation of sporting outcomes. This subject was also promoted via writing on the

Essendon football club drama for the University magazine, Pursuit (Annexure Be)).

The legal issues arising out of the regulation of doping were further explored through

developing the University of New South Wales [UNSW] Master of Law subject, Doping in

Sport: Global Issues, which was co-taught with Richard Redman in 2014 and 2015. To

promote the subject, articles were written for the UNSW Centre for Law, including: “The

Armstrong Saga and the Impact of Doping on Global Sport” (2013) and “Sports Governance:

Doping and Integrity Measures” (2013) [Annexure B b)i)], in addition to presenting at the

2013 UNSW Public Forum: Doping in Sport on “WADC: challenges for sanctioning team

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http://www.youtube.com/watch?v=NByXEW9icmY


sports”. This led to participating in the UNSW 2014 International Academic Symposium for

Doping in Sport, which resulted in Publication #2 (Nehme and Ordway 2016).13

La Trobe University used the innovative content and assessment developed for the new sports

management subject to report on the extent to which the University incorporated the United

Nations (UN) Principles for Responsible Management Education (PRME) in its teaching (La

Trobe University 2016):

Master of Management (Sport Management) The subject Sport Risk Management (LST5RLS) first introduced in 2014 includes ethics and good governance in sport, gambling fraud and anti-doping, codes of conduct, ethics commissions and natural justice (with industry experts as guest lecturers) (p24)

These innovations were further developed through creating the new Performance Integrity

online unit for the University of Canberra Master of High Performance. Students in this

course did not necessarily come from either a legal or sport management background which

allowed even greater freedom in considering solutions to lower the risk to sport posed

through integrity threats beyond the established governance and legislative frameworks. The

EoC approach was also researched in preparation for the teaching materials developed for the

UNODC on the Gender Dimensions of Ethics (UNODC 2018) (Annexure Bp)).

Doctrinal legal research, involving a priori reasoning and empirical methodologies Studying the law in practice, whether involving case law, legislation, regulations, policies or

other documented procedures, known as doctrinal legal research, necessarily involves the

analysis of texts (Hutchinson & Duncan 2012). In sports management, the decision to

include the interpretation, hermeneutics and analysis of texts as a qualitative method requires

greater justification than when engaging in ‘pure’ legal research (Veal 1997 p129, 141;

Bowen 2009; Bohnsack 2014 p217). Hutchinson and Duncan (2012) note that:

The majority of contemporary legal researchers acknowledge that it is important to build on doctrinal research conclusions by using sociological or other ‘outsider’ perspectives. . . . Many aspects of the law are contingent on context, and need to be interpreted and analysed for meaning. Synthesising the law and, where necessary, applying the law to the facts and context is a highly subjective process. Therefore the analytical, legal reasoning aspect of the process is necessarily a qualitative one. The outcome varies according to the expertise of the individual scholar and cannot be replicated exactly by another researcher. When a researcher undertakes doctrinal work, the outcome is totally dependent on the voice and experience of the individual. Doctrinal research requires a specific language, extensive knowledge and a specific

13 The ideas from Publication #2 were presented at the Tackling Doping in Sport summit in London on 8-9 Mar 2017 and at the Anti-Doping Research & Regulations Conference, Bond University, Gold Coast 5-6 Apr 2017.

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set of skills involving precise judgment, detailed description, depth of thought and accuracy (p115-116).

This thesis then reflects the experiential learnings, demonstrated through the case studies

documented in Publication #3 [unpublished] on football governance, in Publication #5

(Ordway 2017) on the AFP’s inter-agency leadership role, in the support ASADA’s expanded

powers (Publications #4 and #6 Ordway 2013(a)(b)), in relation to WADA’s governance

structure in Publication #2 (Nehme & Ordway 2016) and in Publication #10 on transgender

athletes (Ordway 2018(a)). In this manner, a critical research approach has implemented a

reform orientated research paradigm by evaluating the adequacy of current sports integrity

efforts internationally, and recommending areas for reform through both scholarly and

advocacy research to maximise impact (Pearce Committee cited in Hutchinson & Duncan

2012 p101; Nolasco et al 2010).

Formal Requirements:

This thesis by publication consists of ten publications, nine of which have been published,

and the remaining publication, Publication #3, is a: “manuscript ready for submission” as

permitted by the University of Canberra (UC) thesis submission guidelines (University of

Canberra n.d. p5, cl.1.26). The candidate is the principle author on eight of the ten

publications, in compliance with the guidelines requiring the candidate to be the lead author

in the majority of publications (University of Canberra n.d. p5, cl.1.28). Three of the ten

publications are co-authored, and the candidate is the lead author for one of the three co-

authored publications, Publication #1 Ordway & Opie (2017).

Choice of Publications:

Three of the ten publications in this thesis are considered “high” ranking publications. There

is not a Field of Research (FoR) code for Sports Integrity, so instead, for this research the

FoR code 150404 for “Sport and Leisure Management” under Division 15: “Commerce,

Management, Tourism and Services” and FoR code 1801 Law under Division 18: “Law and

Legal Studies” have been chosen. Although there are twenty-seven fields under law, sports

law does not feature, so the FoR 180199 “Law not elsewhere classified” could have been

chosen instead of the generic 1801 (Australian Government Australian Bureau of Statistics

2008). The FoR code is relevant in determining the Top Quartile Publications (Q1)

recognised in the UC Publication Quality List. The UC Publication Quality List: “uses

national and international accepted indicators endorsed by the discipline (including SciMago

[SRJ n.d.], ABDC and CORE)” to determine the “percentage of publications in top quartile

25


(25%) journals or other relevant outlets (including journals, book publishers and

conferences)” (https://www.canberra.edu.au/myuc-s/business-units/DVC-and-VPRI/research-

services/research-peas).

‘Sports integrity’ as a concept is a new and emerging field for practitioners and academics

alike. The Book Industry Study Group (BISAC) does not even include Sport Integrity in its

list of Subject Codes/Headings. The closest relevant headings appear to be: SPO066000

(Sports & Recreation / Sociology of Sports) and SPO068000 (Sports & Recreation / Business

Aspects) (BISAC n.d.). As an emerging field, sports integrity also does not have any journals

solely focused on this topic, as evidenced by the leading academic ranking register, Scopus

(SRJ n.d.). Reflecting that this is Professional Practice research, the choice of publisher has

been made on the basis that they are “reputable and high profile” from a scholarly

perspective, and would achieve maximum external impact from an advocacy perspective.

The need for this research can be demonstrated through the vast majority of publications

featured in this thesis having originated at the request of the publisher/ editor(s).

Hutchingson and Duncan (2012) noted that the: “Quality of research within the discipline of

law is normally evaluated not only by the citation of research papers by other researchers, but

also by the referencing of pertinent research by the courts or law reform bodies. This is not

the type of citation measure that is customary for other disciplines” (p91-92). In disciplines

outside of the law, the way that academic “impact” is being assessed is currently undergoing

a revolution (Given et al 2015). As neatly summarised by Kelly (2019): “Getting a journal

article published is internal impact. Having that research create change in the world, is

external impact.” The UC Publication Quality List allows book chapters to be included for

the FoRs of 15 and 18 (as appear in this thesis), and the book publishers are ranked according

to the SENSE Publisher list. The SENSE Publisher list indicates that publishers ranked as

both A & B are Q1 publishers (https://www.canberra.edu.au/myuc-s/business-units/DVC-

and-VPRI/research-services/research-peas/research-peas-documents/SENSE-Publisher-

list.xlsx)

To achieve the aim of having the greatest external impact then, it was decided to prioritise

publications that allowed for the ideas to be published quickly, and to the widest possible

industry audience. This in turn created opportunities to present at key domestic and

international conferences, and in the media, to highlight the issues and recommendations in

26

https://www.canberra.edu.au/myuc-s/business-units/DVC-and-VPRI/research-services/research-peas

https://www.canberra.edu.au/myuc-s/business-units/DVC-and-VPRI/research-services/research-peas

https://www.canberra.edu.au/myuc-s/business-units/DVC-and-VPRI/research-services/research-peas/research-peas-documents/SENSE-Publisher-list.xlsx




relation to current events as they presented. The list of publications in this thesis by type and

publisher is as follows:

• Publication #1: Ordway, C. & Opie, H. (2017). Book chapter. Published by Taylor &Francis, Routledge

• Publication #2: Nehme, M. & Ordway, C. (2016). Book chapter. Published by HartPublishing

• Publication #3: Ordway, C. (unpublished). Journal Article. [Manuscript ready to bepublished]

• Publication #4: Ordway, C. (2013(a)). Journal Article. Published in the ANZSLACommentator by the Australian and New Zealand Sports Law Association (ANZSLA)

• Publication #5: Ordway, C. (2017). Book chapter. Taylor & Francis, Routledge• Publication #6: Ordway, C. (2013(b)). Journal Article. World Sports Law Report

[renamed the World Sports Advocate]. Published by Cecile Park Publishing Ltd• Publication #7: Ordway, C. (2018(b)). Journal Article. World Sports Advocate. Published

by Cecile Park Publishing Ltd• Publication #8: Passas, N. & Ordway, C. (2016). Conference Proceeding. Published by

the United Nations Office on Drugs and Crime (UNODC)• Publication #9: Ordway, C. (2014). Journal Article. Sport&EU Review. Published by the

European Sports Law and Policy Community• Publication #10: Ordway, C. (2018(a)). Journal Article. World Sports Advocate.

Published by Cecile Park Publishing Ltd

Publications #1 and #5: Book chapters. Published by Taylor & Francis (Routledge) The UC SENSE Publisher list ranks Routledge as A and therefore as Q1 publications. The

book that features Publication #5 is also published as part of the Routledge Research in Sport

and Corruption Series, edited by James Skinner. Both publications were requested by the

editors.

Publication #2: Book chapter. Published by Hart Publishing, UK (imprint of Bloomsbury Publishing) The UC SENSE Publisher list ranks Hart as B, which is also then a Q1 publication. Hart

Publishing was also presumably chosen by the editors because Hart was established for legal

scholars and has been awarded the title “Academic & Professional Publisher of the Year

2009” by the Independent Publishers Guild. Hart was also highly commended in the

'Academic, Educational & Professional Publisher of the Year' category at The Bookseller

Industry Awards in 2012 (https://www.bloomsburyprofessional.com/uk/about-hart/). This

publication was also requested by the editors.

Publication #4: Journal Article. Published in the ANZSLA Commentator by the Australian and New Zealand Sports Law Association (ANZSLA) The Commentator is edited by Australian sports lawyer, Gerry Glennen, and contributors are

generally sports law practitioners. The Commentator is an electronic publication provided to

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https://www.bloomsburyprofessional.com/uk/about-hart/


ANZSLA members quarterly, and also available for purchase via Informit. The Editorial

Policy is as follows:

• To focus on publishing quality sports law or sports administration materialdealing with current topics of interest to professionals, academics and sportsadministrators.

• Articles to be of a high standard demonstrating thought and intellectual rigorin the manner in which current issues are addressed by the author.

• The material is to consist of professionally orientated Commentator stylearticles approximately 1,000 to 3,000 words in length. (ANZSLA 2018)

Although there is one journal ranked for “sport law” in the Scopus academic ranking register

(SRJ n.d.), the International Sports Law Journal, it is not highly ranked (H ranking of 3 -

Q4), and it takes some time to review and publish articles. In this instance, Publication #4

analysed the need to expand the legislative authority of ASADA at the time when the Bill

was before Parliament. As Professional Practice research, The Commentator was considered

the most appropriate publication to maximise impact and readership for Australian and New

Zealand practitioners and government policy makers in a timely manner. ANZSLA also has

a double blind peer reviewed journal, the ANZSLAJ, but it is not ranked by SRJ, and the most

recent ANZSLAJ published is April 2016, while The Commentator is up-to-date.

Publications #6, #7, and #10 Journal Articles. Published in the World Sports Law Report [re-named the World Sports Advocate] by Cecile Park Publishing Ltd Cecile Park Publishing has published a range of journals on emerging business sectors with

unique legal issues. Its publications are distinguished on the basis that they offer: “timely

reporting and authoritative legal guidance on key growth areas.” (Cecile Park Publishing

n.d.). Their publications and legal conferences (including Tackling Doping (Annexure C

(13)) are designed for industry and legal professionals seeking current and innovative

information. These articles were also requested by the editors to provide a timely insight into

current Australian issues to an international industry audience. It is assumed that the journal

articles have been subject to “full peer review” through the publisher’s Editorial Boards. The

Editorial Boards consist of internationally renowned sports law academics and practitioners.

The Editorial Board for Publication #6 included: Prof Richard McLaren, Western University and the University of Melbourne; Dr Laila Mintas, sports law lecturer, Humboldt University Berlin; Max Duthie, sports law lecturer, University of Sydney and the University of Liverpool; Prof Lorne Crerar; Andy Gray, Sports Law Faculty, Kings College, London; Warren Phelops, author of Butterworth’s Sports Law & Practice; Jonathan Taylor, co-editor of Lewis & Taylor’s Sport: Law & Practice (Tolley’s 2008), previous Director of Studies in Sports Law at

28


King’s College, London; and Richard Verow, author of Jordans: Sports, Business & the Law, and Butterworths: Forms and Precedents V39(2): Sports & Sponsorship.

The Editorial Board for Publications #7 and #10 included: Prof McLaren; Dr Mintas; Prof Crerar; Michele Bernasconi, Academic Co-Director of the Masters on International Sport, University of Zurich and the UEFA Football Law Program; Dr Gregory Ioannidis, Senior Lecturer in law, Sheffield Hallam University and Academic Associate, Kings Chambers; Paul Greene, lecturer in the ISDE sport program; and Antonio Rigozzi, Professor of Law, University of Neuchatel.

In addition to the high profile and reputation of the editorial board, internationally respected

academics have submitted publications to the same editions of the “World Sports Law

Report”, and the “World Sports Advocate”. For example, in the volumes that Publications

#6, #7, and #10 were featured in, other academic authors included:

Ryan M. Rodenberg, Professor of Sport Law, Florida State University; Dr David Gerrard, Emeritus Professor of Sports Medicine, University of Otago; and Prof John Wolohan, Falk College of Sport & Human Dynamics, Syracuse University

Publication #9: Journal Article. Published in the Sport&EU Review by the European Sports Law & Policy Community The European Sports Law & Policy Community website states that: “Sport&EU was founded

in 2005 to provide a home for scholars and practitioners interested in the EU’s involvement

in sport. We promote comparative and interdisciplinary perspectives on European sports law

and policy. Our mission is to establish a wide network of people, from within Europe and

outside, interested in these areas and promote dialogue and research” (European Sports Law

& Policy Community n.d.). The Guidelines for Contributors in the Sport&EU Review are:

Sport&EU Review invites submissions for peer-reviewed articles, legal commentaries, forum contributions and proposals for themed special issues for publication. . . . Sport&EU Review publishes two forms of longer articles: research articles and legal commentaries. Research articles should be up to 7,000 words in length while legal commentaries should normally be about 5,000 words in length. Research articles may represent research in progress, discussion of research methodologies, or other scholarly work that is of interest to the readership. . . . Papers intended for peer review (research articles and legal commentaries) will be reviewed by at least two anonymous referees. . . . Forum contributions are shorter, usually up to 1,000 words including references. They are not peer reviewed, but are intended as short items of general interest to the readership of Sport&EU Review. These include, but are not limited to debate/opinion pieces, conference reports, calls for papers, brief updates on key developments in the field and reviews of publications. . . . Legal commentaries present a legal issue pertinent to European sports law in a concise and accessible manner. Contributions from postgraduate research students are also welcome. . . . Sport&EU Review anticipates that a considerable proportion of papers first presented in Sport&EU Review will subsequently be developed for publication elsewhere and that its review process will be used as a step towards publication of a final paper elsewhere. (European Sports Law & Policy Community n.d.)

29


The publication co-editors for Publication #9 are academics: Alexander Brand, Professor,

Rhine-Waal University; Simon Ličen, Assistant Professor, Washington State University,

Arne Niemann, Professor of International Politics, and Johannes Gutenberg-Universitat

Mainz, who are internationally recognised experts in their fields. Publication #9, although

approximately 3000 words, has been published as a “Forum” piece, so it is assumed that it

has been peer-reviewed by the editors.

As set out above, this thesis has collated a range of holistic “best practice” strategies into one

place as recommendations for sport organisations and policy makers. Aimed at providing

external impact through a multi-disciplinary approach, the solutions and case studies have

been made on the basis of a long and extensive professional career in the sports industry, and

in consultation with other practitioners, including my co-authors, Nikos Passas, author of the

explanatory memorandum of the UNCAC (2012), and the UNTOC (2000); Hayden Opie the

founding President of ANZSLA and former Director of Studies, and now Senior Fellow,

Sports Law Program, The University of Melbourne, together with the various contributors at

conferences, seminars and symposiums attended and presented at. The judgements made in

this thesis have also been based on an examination of the extant literature, through

completing a Graduate Diploma in Investigations Management (policing) from Charles Sturt

University; through interviewing members of national and international sports boards and

tribunals, speaking with colleagues from the anti-corruption think tank, the Australian

Commission for Law Enforcement Integrity, colleagues from the UNODC, academics

supporting the Anti-Corruption Academic Initiative (ACAD), and the Expert Groups of the

Education for Justice (E4J) relating to ethics and integrity, the rule of law, criminal justice

and prevention of crime and corruption.

Whether this thesis will achieve its aim to positively influencing the dialogue on how to best

protect the integrity of sport may not be known for many decades to come. At very least, it is

hoped that this mapping exercise to understand and define the issues becomes a springboard

for future research.

30


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Book Industry Study Group (BISAC) (n.d.), Sports & Recreation, retrieved from https://bisg.org/page/SportsRecreation Bowen, G. A. (2009). Document analysis as a qualitative research method. Qualitative research journal, 9(2), 27-40.

Bowen, J., Katz, R. S., Mitchell, J. R., Polden, D. J., & Walden, R. (2017). Sport, ethics and leadership. Abingdon: Routledge.

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http://www.anticorruptioncommission.ky/regional-and-international-anti-corruption-bodies

http://www.anticorruptioncommission.ky/regional-and-international-anti-corruption-bodies

https://www.antidoping.no/english/about-anti-doping-norway

http://www.aclei.gov.au/Pages/Corruption-Prevention/Key-concepts.aspx

https://www.abs.gov.au/ausstats/[email protected]/0/B6D69B856D458468CA2574180004A866?opendocument

https://www.abs.gov.au/ausstats/[email protected]/0/B6D69B856D458468CA2574180004A866?opendocument

https://www.abs.gov.au/ausstats/[email protected]/0/F3C574753D77BF3BCA2574180004B7A7?opendocument

https://www.abs.gov.au/ausstats/[email protected]/0/F3C574753D77BF3BCA2574180004B7A7?opendocument

https://www.health.gov.au/internet/main/publishing.nsf/Content/national-integrity-of-sport-unit

https://www.health.gov.au/internet/main/publishing.nsf/Content/national-integrity-of-sport-unit

https://www.health.gov.au/internet/main/publishing.nsf/Content/63F0A5D7BDA5A0B5CA2582CF0005E6F9/$File/HEALTH-RASIA-Report-Acc.pdf

https://www.health.gov.au/internet/main/publishing.nsf/Content/63F0A5D7BDA5A0B5CA2582CF0005E6F9/$File/HEALTH-RASIA-Report-Acc.pdf

https://www.health.gov.au/internet/main/publishing.nsf/Content/D78723EDC196645DCA2583910001AEA2/$File/Final%20Government%20Response%20-%2011%20February%202019.pdf



https://www.anzsla.com/about-us

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CRITICAL ISSUES IN GLOBAL SPORT MANAGEMENT

The social, cultural and economic significance of sport has never been moreevident than it is today. Adopting a critical management perspective, this bookexamines the most important themes and challenges in global sport management.From match-fixing, doping, bribery and corruption to corporate social responsi-bility, governance and new media, it helps students, researchers and practitioners tounderstand the changing face of the global sport industry.

Written by leading international sport management experts, Critical Issues inGlobal Sport Management includes twenty chapters and real-life case studies fromaround the world. It examines contemporary governance and management issuesas well as the ethical challenges faced by the global sport industry, includingquestions of integrity and accountability in recent drug scandals that have beenwidely reported and debated. This book deals with such questions and many more,highlighting the fact that the global sport system is in urgent need of new andinnovative solutions to these ongoing problems.

Based on cutting-edge research from the US, UK, Australia, Europe and beyond,this book will add depth and currency to any course in sport management, sportbusiness, sport development or sport events.

Nico Schulenkorf is Senior Lecturer for Sport Management at the UTS BusinessSchool, Sydney, Australia. His research focuses on the social, cultural and health-related outcomes of sport-for-development and event management projects. Nicohas worked with local and international NGOs, Government Agencies, SportAssociations and Ministries in developing capacities to implement developmentprojects in countries such as Sri Lanka, Israel/Palestine and the Pacific Islands. Nicois co-editor of Global Sport-for-Development: Critical Perspectives (Palgrave, 2014) andManaging Sport Development: An International Approach (Routledge, 2016). He is alsoco-founder and editor of the Journal of Sport for Development.

PUBLICATION #1

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Stephen Frawley is the Director of the Australian Centre for Olympic Studies atthe UTS Business School, Sydney, Australia. His research is focused on the organi-sation and management of the Olympic Games and associated sport mega-events.He has published widely on the Olympic Games and the Football World Cup andis the editor of Managing the Olympics, Managing the Football World Cup and ManagingSport Mega-Events. Stephen’s academic work is informed by his experience workingon sport mega-events. From 1998 to 2001 he worked for the Sydney 2000 Organ -ising Committee for the Olympic and Paralympic Games and he was an advisor tothe Melbourne 2006 Commonwealth Games Organising Committee.

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CRITICAL ISSUES IN GLOBAL SPORTMANAGEMENT

Edited by Nico Schulenkorf and Stephen Frawley

40

First published 2017by Routledge2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2017 Nico Schulenkorf and Stephen Frawley

The right of Nico Schulenkorf and Stephen Frawley to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication DataNames: Schulenkorf, Nico, editor. | Frawley, Stephen, 1969- editor.Title: Critical issues in global sport management / edited by Nico Schulenkorf and Stephen Frawley.Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2016. | Includes bibliographical references and index.Identifiers: LCCN 2016020603| ISBN 9781138911222 (hardback) | ISBN 9781138911239 (pbk.) | ISBN 9781315692883 (ebook)Subjects: LCSH: Sports administration. | Sports and globalization.Classification: LCC GV713 .C77 2016 | DDC 796.06/9--dc23LC record available at https://lccn.loc.gov/2016020603

ISBN: 978-1-138-91122-2 (hbk)ISBN: 978-1-138-91123-9 (pbk)ISBN: 978-1-315-69288-3 (ebk)

Typeset in Bemboby Fish Books Ltd.

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Nico – to Anja and HenryStephen – to Tanya, Tara and Alanna

42

CONTENTS

List of figures xList of tables xiList of contributors xiiAcknowledgements xxii

1 Critical issues in global sport 1Nico Schulenkorf and Stephen Frawley

PART 1Governance, integrity and welfare 7

2 Governance, CSR and diversity: a critical field of study in global sport management 9Johanna A. Adriaanse, Sarah Cobourn and Stephen Frawley

3 Gender diversity in the governance of international sport federations 23Johanna A. Adriaanse

4 Integrity and corruption in sport 38Catherine Ordway and Hayden Opie

5 Match-fixing and manipulation in sport 64Markus Breuer and Sebastian Kaiser

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viii Contents

6 Doping control and global sport 77Jules R. Woolf

7 Head injuries and concussion issues 93Annette Greenhow and Lisa Gowthorp

PART 2Globalisation 113

8 Globalisation and professional sport 115Geoff Dickson and João M.C. Malaia Santos

9 Socio-economic impacts of sports mega-events: more unintended than intended? 128Wolfram Manzenreiter and John Horne

10 Social media, fan engagement and global sport 141Olan Scott, Michael Naylor and Katherine Bruffy

11 Managing football hooliganism 152Joel Rookwood

12 Farewell to the hooligan? Modern developments in football crowd management 164Geoff Pearson and Clifford Stott

13 Global sport-for-development 176Nico Schulenkorf, Emma Sherry and Katie Rowe

14 Sport and international diplomacy 192Robert E. Baker and Pamela H. Baker

PART 3Technology and social media 203

15 Analytics, technology and high-performance sport 205Bill Gerrard

16 A general theory of the use of technology in sport and some consequences 219Harry Collins and Robert Evans

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Contents ix

17 The tyranny of perpetual innovation: global mobile media, digital communications and television 238Brett Hutchins and David Rowe

18 Social media analytics for sport management: pitfalls, tools and best practices 252Larena Hoeber and Orland Hoeber

19 Digital technology and sport sponsorship 266Christopher Rumpf and Christoph Breuer

20 Current trends and future research challenges in global sport management 278Stephen Frawley and Nico Schulenkorf

Index 286

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FIGURES

2.1 Integrated research model of sport governance 145.1 Overview of match-fixing 665.2 Timeline for match-fixing induced by investors 7213.1 Article title word cloud (top 50 condensed words) 18013.2 Year of publication by number of articles 18113.3 Thematic areas 18213.4 Researcher location (by continent) 18313.5 Location of research (by continent) 18313.6 Research methodology 18518.1 Temporal distributions of all of the tweets for the event (including

two days before and two days after) 25918.2 Zooming into the first day of the race at five-minute intervals

shows a sudden peak in neutral and negative posts near 3:00 p.m 26018.3 Looking at a two-hour span more clearly shows the abnormal spike

in Twitter traffic; examination of the tweets revealed that people were tweeting about a bus crash 261

18.4 Viewing the official @letour tweets at this same time period shows the organisation’s response to the crash 261

19.1 An image of an eye-tracking heat map in Formula 1 26819.2 Image of EEG data recording 26919.3 Image of digital overlays in the Dutch Football League Eredivisie 272

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TABLES

3.1 Percentage of women directors on boards of international sport federations (N = 76) 28

3.2 International sport federations with women chairs and women chief executives in 2014 30

3.3 Percentage of women as directors, chairs and chief executives of IFs in 2014 and 2012 31

6.1 WADA Anti-doping rules violations 826.2 WADA international standards 856.3 WADA spirit of sport criteria 8813.1 Forms of literature analysis 17713.2 Inclusion/exclusion criteria 17913.3 Top 10 journal outlets 18113.4 Researchers and research sites (greater than five publications) 18413.5 Sport activity 18514.1 Sample itinerary for a basketball program with athletes

and coaches 19716.1 Classification of capture devices 22016.2 Analysis of 535 English Premiership matches out of the

2,280 played over three seasons 23116.3 How TV-replays could be used in football 232

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CONTRIBUTORS

Johanna A. Adriaanse is Senior Lecturer in the Business School at the Universityof Technology, Sydney, and a member of the University’s Centre for CorporateGovernance. Her area of interest and expertise focuses on investigating therelation ship between gender and sport. Currently, she is conducting research ongender dynamics in the governance of sport organisations globally. She haspublished her work in prestigious academic journals including the Journal of SportManagement, Sport Management Review, and the Journal of Business Ethics. In addition,Johanna is a strong public advocate for women, sport, and gender equality. She hascompleted projects with UN Women in New York, served as the co-chair for theInternational Working Group on Women and Sport (IWG) from 2006 to 2014, andgiven presentations at conferences all over the world. She obtained her Ph.D. andmaster of education at the University of Sydney after completing her bachelor ofeducation (Physical Education) and bachelor of psychology in Amsterdam.

Pamela H. Baker is an Associate Professor of Special Education and Director of theDivision of Special Education and Disability Research at George Mason Univer -sity. She earned her doctorate in leadership studies from Bowling Green StateUniversity, and her M.Ed. and B.S. from the College of William and Mary. Inaddition to numerous presentations and publications, Dr. Baker has served as aninvestigator on a variety of state and federal grants to support teacher preparationand sport diplomacy projects with funding in excess of US $8.7 million dollars. Sheis currently involved in an ongoing cooperative agreement with the U.S. Depart -ment of State’s SportsUnited Sports Visitors and Envoys programme.

Robert E. Baker is a Professor and Director of the Center for Sport Managementand Division of Sport Recreation and Tourism at George Mason University. Heearned his doctorate from the College of William and Mary, and his M.S. and B.S.

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from Pennsylvania State University. He has served as President of the NorthAmerican Society for Sport Management, as a founding commissioner of theCommission on Sport Management Accreditation, and a founding board memberof the World Association of Sport Management. Dr. Baker received NASSM’s 2010Distin guished Sport Management Educator Award and NASPE’s 2011 Out -standing Achievement in Sport Management Award. In addition to publishingnumerous books and articles, Dr. Baker has served as the principal investigator onseveral grants to support sport diplomacy projects totalling U.S. $6 million. He iscurrently involved in a cooperative agreement with the U.S. Department of State’sSports United Sports Visitors and Envoys programme.

Christoph Breuer is a full Professor at the German Sport University, Cologne,specialising in research on sport demand, sport organisations and sport sponsoring.His research mostly relates to forecasting sport demand, identifying key drivers ofviability of sport organisations, and measuring the economic value of sportsponsoring. His work has been published extensively.

Markus Breuer is the Dean of the M.A. Sport Management program at the SRHUniversity Heidelberg, Germany. After graduation in business administration andeconomics in Braunschweig and Chemnitz, Professor Breuer received a Ph.D. inSport Economics from the University of Jena. From 2011 to 2014, he joined theKPMG transfer-pricing office in Hamburg. He obtained his master’s degree ininternational taxation from the University of Hamburg in 2014. Professor Breuerlectures regularly at various local and foreign universities and presents his latestresearch findings at international conferences.

Katherine Bruffy is a Lecturer of Sport Management and Programme Leader inthe Department of Sport at Unitec Institute of Technology, Auckland, NewZealand. Katie’s passion for sport began as a youth swimmer and continuedthrough her time as a collegiate synchronised swimmer. She began teaching inhigher education in 2006 at Ohio State University, where she also earned her Ph.D.researching sport nostalgia. Particular research areas of interest include: sportmarketing, consumer behaviour, governance and sport development. Katie hasworked within these research areas as a consultant for the Skycity BreakersBasketball Team, Auckland Mystics Netball Team, and Auckland Cricket.

Sarah Cobourn (originally from Toronto) is the Senior Officer of CorporateSocial Responsibility (CSR) at Hitachi. Sarah completed a Ph.D. focused onCreating Shared Value in professional sport at the University of TechnologySydney (UTS). Sarah continues her research through the Australian Centre forOlympic Studies at UTS Business School. Previously, she has worked as a con -sult ant, working with organisations across Australia, North America and theUnited Kingdom to develop innovative policies and programmes that createshared economic and societal value. Sarah also holds a bachelor’s degree in

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science from Western University (Canada) and a master’s in sport managementfrom Bond University (Australia).

Harry Collins is Distinguished Research Professor and Directs the Centre for theStudy of Knowledge, Expertise and Science at Cardiff University. He is an electedFellow of the British Academy and a winner of the Bernal prize for social studiesof science. He has served as President of the Society for Social Studies of Science.His 18 published books cover the sociology of scientific knowledge, artificial intelli -gence, the nature of expertise, and tacit knowledge. He is continuing his researchon the sociology of gravitational wave detection, expertise, fringe science, scienceand democracy, technology in sport, and a new technique—‘the Imitation Game’ –for exploring expertise and comparing the extent to which minority groups areintegrated into societies. He is currently writing books on science and demo cracy,on artificial intelligence, on technology in sport, and on the Imitation Game.

Geoff Dickson has an honours degree in leisure management and a doctorate fromGriffith University. In between degrees, Geoff was General Manager of theCoorparoo Australian Football Club in Brisbane. He began his academic career in1996 at Central Queensland University. In 2004, Geoff moved from Australia toNew Zealand to work at Auckland University of Technology as a director ofGymsports New Zealand and Tennis North Harbour. He is currently Chair of AFLNew Zealand and President of the Sport Management Association of Australia andNew Zealand. Geoff ’s research interests focus on interorganisational relationships –federated networks, collaborations, partnerships, co-opetition, clusters and cliques.These relationships include sponsorship and ambush marketing. Geoff haspresented his research in every continent, except Africa and the Antarctic.

Robert Evans is a Professor of Sociology in the Cardiff School of Social Sciences.He specialises in Science and Technology Studies (STS) and has published exten -sively on the nature of expertise. Together with Harry Collins he is the author ofthe influential ‘Third Wave of Science Studies’ paper (Social Studies of Science,2002) and Rethinking Expertise (University of Chicago Press, 2007). His currentwork has two main elements. The first continues to refine and extend the theoryof expertise that underpins the Third Wave programme in STS. The second focuseson the development of the Imitation Game as a new method for social research.This methodological work, which is funded by the European Research Council(#269463, IMGAME), operationalises the idea of interactional expertise andprovides a means by which its distribution can be measured and its contentexplored across a wide range of domains and topics.

Stephen Frawley is the Director of the Australian Centre for Olympic Studies,which is located at the UTS Business School, University of Technology, Sydney,Australia. Stephen is the editor of Managing Sport Mega-Events (Routledge) and co-editor (along with Daryl Adair) of Managing the Olympics (Palgrave Macmillan) and

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Contributors xv

Managing the Football World Cup (Palgrave Macmillan). Stephen has significantexperience working in sport having worked in the Sport Division for the Sydney2000 Olympic and Paralympic Games from 1998 to 2001.

Bill Gerrard is an economics graduate of the University of Aberdeen and TrinityCollege, Cambridge, and received his doctorate from the University of York. He iscurrently Professor of Business and Sports Analytics at Leeds University BusinessSchool. Bill has published academic papers in sport management on the footballtransfer market, measuring team quality, coaching efficiency, stadium naming rights,and the sporting and financial performance of pro sports teams. He is a formereditor of the European Sport Management Quarterly. Bill holds the UEFA B footballcoaching licence. In recent years, his work has mainly focused on the developmentof coach-led analytics. He was the technical analyst for Saracens (rugby union)from 2010 to 2015. Bill has also provided statistical analysis to support the SkySports coverage of Super League (rugby league). Bill has worked with several U.K.and Dutch football clubs, an Australian rugby league team, a South African Super15 rugby union team, the Oakland As and various Olympic sports.

Lisa Gowthorp is a full-time Assistant Professor at Bond University and has pre -viously worked in high-performance sport for over 12 years, with organisations suchas the NSW Institute of Sport, the Australian Institute of Sport (AIS), and AustralianCanoeing. Lisa has managed teams at the World Championships and was thegymnastics section manager on the Australian Olympic Team in Beijing in 2008.

Lisa’s research interests include the governance and management of theAustralian high-performance sport system, especially government involvement inelite sport, sport governance and regulation, high-performance sport managementissues, and contemporary issues surrounding the Olympic Games. She regularlyconsults with industry on governance issues and sport policy. Lisa is also theSecretary-General of the Sliding Sports Australia (SSA), working towards thedevelopment and implementation of good governance practices and procedures forthis new Olympic NSO.

Annette Greenhow is an Assistant Professor in the Faculty of Law at BondUniversity, having joined the faculty in 1996 as an adjunct during her private legalpractice career. She is now a full-time member of the faculty and teaches GlobalSports Law and Governance, Sports Law, Business Associations and Land Law.Annette’s research interests focus on the intersection between sport, law, regulation,and governance and her research evaluates the regulatory responses of theAustralian football codes to concussion management at the elite levels. Annette hasauthored and co-authored publications on sports-related concussion and hasdelivered presentations on this topic at national and international conferences since2011. She has a keen interest in understanding the interdisciplinary perspectives onsports-related concussion and contributing to the design and delivery of sustainableconcussion management solutions for a broad range of stakeholders.

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xvi Contributors

Larena Hoeber earned her Ph.D. in sport management from the University ofBritish Columbia. She is an Associate Professor in the Faculty of Kinesiology andHealth Studies at the University of Regina. Her research interests include genderissues in sport, use of innovative research methods, organisational culture, andamateur sport organisations. She teaches in the areas of sport management andmark eting, sociology of sport, volunteer management, and qualitative researchmethods. She has published her research in the Journal of Sport Management; SportManagement Review; European Sport Management Quarterly; Gender, Work andOrganisation; Qualitative Research in Sport, Exercise and Health; International Journal ofSport Management and Marketing; and Sex Roles.

Orland Hoeber received his Ph.D. in computer science from the University ofRegina (Canada) in 2007. After five years at Memorial University (Canada), hereturned to the University of Regina as an Associate Professor in 2012. Hisprimary research interests are in the domains of information visualisation, visualanalytics, mobile computing, social media analytics, the process of innovation, andthe use of software to support the collection and use of data in business and aca -demic research contexts. His research has been funded by both the NaturalSciences and Engineering Research Council of Canada and the Social Sciencesand Humanities Research Council of Canada.

John Horne is Professor of Sport and Sociology at the University of CentralLancashire, Preston, U.K. He is a Fellow of the Academy of Social Sciences(FAcSS), Vice-Chair of the British Sociological Association, and Vice-President ofthe International Sociology of Sport Association. His research interests includesport, leisure, and globalisation; the socio-cultural, political, and economic impactsof sports mega-events; sport and social theory; and consumer culture. He is theauthor, co-author, editor, and co-editor of over 150 books, edited collections,journal articles and book chapters including: Understanding the Olympics (2nd ed.,2016), Routledge; Mega-Events and Globalization: Capital and Spectacle in a ChangingWorld Order (2016), Routledge; Sport and Social Movements (2014), BloomsburyAcademic; Understanding Sport (2nd ed., 2013), Routledge; Sport in ConsumerCulture (2006), Palgrave; Sports Mega-Events (2006), Blackwell; Football Goes East:Business Culture and the People’s Game in China, Japan and South Korea (2004),Routledge; and Japan, Korea and the 2002 World Cup (2002), Routledge.

Brett Hutchins is an Australian Research Council Future Fellow and AssociateProfessor in the School of Media, Film and Journalism at Monash University inMelbourne, Australia. His Fellowship project, ‘The Mobile Media Sport Moment:Markets, Technologies, Power’ (http://artsonline.monash.edu.au/mobilemediasport/), investigates how smartphones, tablet computers, and mobile com muni-cations are transforming the production and circulation of sport content aroundthe globe. Brett’s latest journal articles appear in Convergence, InternationalCommunication Gazette, Telematics and Informatics and Journal of Sport and Social Issues.

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Contributors xvii

His books include Digital Media Sport: Technology, Power and Culture in the NetworkSociety (co-edited with David Rowe, 2013), Routledge; and Sport Beyond Television:The Internet, Digital Media and the Rise of Networked Media Sport (co-authored withDavid Rowe, 2012), Routledge. He is also the co-editor of a recent special issue ofthe journal, Media International Australia, on ‘Media Sport: Practice, Culture andInnovation’ (No. 155, May 2015).

Sebastian Kaiser holds a Chair of Business Administration, particularly sportmanagement, at Heilbronn University, Germany. Sebastian graduated at GermanSport University Cologne and received a Ph.D. in sport economics (2005). He isSection Editor (Social Sciences) of the German Journal of Sports Science and author/co-author of a range of books, book chapters, and journal articles on sportmanage ment. Sebastian lectures regularly at various international universities andis an international professor at the Russian International Olympic University inSochi.

Wolfram Manzenreiter is Professor of Japanese Studies and Vice Head of Depart -ment at the Department of East Asian Studies at the University of Vienna. Hisresearch is concerned with the social and anthropological aspects of sports,emotions, work and migration in a globalising world. He is author of several booksand numerous articles and book chapters mainly on sport, leisure, popular culture,and social issues in contemporary Japan. As a scholar of globalisation, his researchalso extends into the larger East Asian region and the transnational networks of theJapanese diaspora. Book publications of note include Sport and Body Politics in Japan(2014), Routledge; and the co-edited volumes on Migration and Development; NewPerspectives (2014, in German), ProMedia; Governance, Citizenship and the New Euro -pean Championships, The European Spectacle (2011), Routledge; Sports Mega-Events(2006), Blackwell; Football Goes East: Business Culture and the People’s Game in China,Japan and South Korea (2004), Routledge; and Japan, Korea and the 2002 World Cup(2002), Routledge.

Michael Naylor is currently a Senior Lecturer in Sport Management at AucklandUniversity of Technology in New Zealand. Born in Toronto, Canada, Michael alsospent time in the United States as both a practitioner and scholar in the sportindustry. His research interests include sport marketing, consumer psychology, andsocial media. The projects he undertakes are based in a variety of participant andsupporter contexts around the world.

Hayden Opie is the Director of Studies, Sports Law Programme, Melbourne LawSchool, the University of Melbourne. Hayden pursues research and teachinginterests in all areas of sports law and is recognised internationally for his work inthe field, especially in regard to sports integrity. He has been researching andwriting on legal aspects of anti-doping since 1987 and has served on variouscommittees and advisory boards in the anti-doping field. He is the founding

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xviii Contributors

President of the Australian and New Zealand Sports Law Association and served asa legal member of the Australian government’s Anti-Doping Rule Violation Panelfrom 2010 to 2015. He is a member of the Court of Arbitration for Sport. Haydenteaches the master’s-level subject, ‘Sports Integrity and Investigations’, withCatherine Ordway on the Melbourne Sports Law Programme.

Catherine Ordway is currently Professor of Practice (Sports Management), LaTrobe University and Senior Fellow, Melbourne Law School, the University ofMelbourne. Catherine holds a bachelor of arts in jurisprudence and law degreefrom the University of Adelaide, a Graduate Diploma of Legal Practice from theUniversity of South Australia, and a Graduate Diploma in Investigations Manage -ment from Charles Sturt University. She is internationally recognised for her workin the field of regulatory review in international sport integrity. Catherine is also amember of the Australian and New Zealand Sports Law Association (ANZSLA)and acted for the Australian Olympic Committee in the lead up to the Sydney2000 Olympic Games. Catherine lectures at the master’s level in sports law andsports management subjects at La Trobe University (risk management), at theUniver sity of Melbourne (sports integrity and investigations) with Hayden Opie,the University of New South Wales (anti-doping), and the University of Canberra(performance integrity). Catherine has also taught undergraduate sports manage -ment units as Senior Lecturer at the University of Canberra. She is currentlycompleting her Ph.D. in governance, leadership, and sports integrity.

Geoff Pearson is Senior Lecturer in criminal law at the University of Manchesterin the United Kingdom. He has utilised ethnographic research to research footballfan behaviour and the impact of legal and policing responses on football crowdssince 1995, approaching the subject from a socio-legal and human rights perspect -ive. He has been engaged in research, consultancy and police training on footballcrowd management throughout Europe and has published extensively on the issue,most notably Football Hooliganism: Policing and the War on the English Disease (2007),Pennant; An Ethnography of English Football Fans: Cans, Cops and Carnivals (2012),MUP; and Legal Responses to Football Hooliganism in Europe (in press), TMC Asser.Geoff is co-founder of the Annual Ethnography Symposium and between 2003and 2014 he was Director of the unique MBA (Football Industries) programme.He is a Manchester United season-ticket holder.

Joel Rookwood is a Senior Lecturer in the Faculty of Business, Sport and Enter -prise at Southampton Solent University, United Kingdom, and a Visiting Fellow inSport Management at the University of Vic, Spain. He studied football science atthe undergraduate level and earned master’s degrees in performance analysis andsport management, before being awarded a Ph.D. for his thesis entitled ‘Fanperspectives of football hooliganism’ at the University of Liverpool’s Manage mentSchool in 2008. He has conducted research and written for various media publi -cations, covering football matches in 110 British grounds, and in stadia across 70

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Contributors xix

countries spanning six continents. He reported on and conducted research at the2002, 2006, 2010, and 2014 World Cups; the 2004, 2008, and 2012 EuropeanChampionships; and at confederation equivalents in Asia, Africa, North America,and South America. He has worked in and published widely on sport-for-develop -ment, football fandom, violence, peacebuilding, sports mega-events, and sport andsocial identity.

David Rowe is Professor of Cultural Research, Institute for Culture and Society,University of Western Sydney and Honorary Professor, Faculty of Humanitiesand Social Sciences, University of Bath. His books include Popular Cultures: RockMusic, Sport and the Politics of Pleasure (1995); Globalization and Sport: Playing theWorld (co-authored with Toby Miller, Geoffrey Lawrence and Jim McKay, 2001);Sport, Culture and the Media: The Unruly Trinity (2nd ed., 2004); Global Media Sport:Flows, Forms and Futures (2011); and Sport, Public Broadcasting, and CulturalCitizenship: Signal Lost? (co-edited with Jay Scherer, 2014). His work has beentranslated into several languages, including Chinese, French, Turkish, Spanish,Italian and Arabic. In the specific field of sport management, Professor Rowe haspublished in International Journal of Sport Management and Marketing, AustralasianLeisure Management, and European Sport Management Quarterly; and delivered aKeynote Address to the 2005 Sport Management Association of Australia andNew Zealand Conference.

Katie Rowe is a Lecturer in the sport management programme at Deakin Univer -sity and currently teaches units in Sport Development, Sport Performance, andSport Practicum. She completed her Ph.D. studies in 2013 with focus on women’scycling participation in Australia. Katie’s research interests include sport andrecreation participation, women’s engagement in sport, and the ways in whichsport can be used as a tool to improve community health and wellbeing (sport-for-development). Her research to date has focused on participation issues in sportssuch as cycling, table tennis, and netball and she is interested in exploring oppor -tunities for development through sport initiatives in local government contexts.Katie has presented at sport management and physical activity conferences bothnationally and internationally.

Christopher Rumpf researches and teaches in the field of sport management andsport marketing at the German Sport University, Cologne. His current studiesexplore the impact of colour and animation on sponsorship outcomes and theaffective and behavioural response to sport marketing activities. His articles haveappeared in the Journal of Sport Management, Psychology and Marketing, and MarketingReview St. Gallen, among others.

João M.C. Malaia Santos has a bachelor’s degree in history and a doctorate ineconomic history from University of São Paulo (USP), Brazil. He began hisacademic career in 2010 at University of Rio de Janeiro (UFRJ), where he

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developed his post doctoral research on international sports competitions hosted inBrazil (1919−2016). João is currently director of São José Rugby Club and workson the master’s programme in sports management at the University Nove de Julho(São Paulo, Brazil). João’s research interests focus on organisational theory, criticalmanage ment, international relations, history of sport, sociology of sport, and sportseconomics. In 2015, he was a commentator for ESPN Brazil’s coverage of theRugby World Cup.

Nico Schulenkorf is Senior Lecturer for Sport Management at the University ofTechnology, Sydney (UTS). His research focuses on the social, cultural, and health-related outcomes of sport-for-development and event-management projects. He isparticularly interested in the role of sport as a vehicle for sustainable developmentand peacebuilding within and between disadvantaged communities. For his long-term contribution to the advancement of social justice on an international level,Nico was awarded the 2008 UTS Vice Chancellor’s Human Rights Award. Nico isco-founder and editor of the Journal of Sport for Development and serves on theeditorial board of the European Journal for Sport and Society and Sport and Entertain -ment Review.

Emma Sherry is an Associate Professor within the La Trobe University Centre forSport and Social Impact, specialising in the area of sport development. Emma hascom pleted a bachelor of arts at the University of Melbourne and a masters ofbusiness (Sport Management) and a Ph.D. at Deakin University. Emma’s Ph.D.studies investigated conflict of interest in the Australian Football League. Hercurrent research interests include community development through sportactivities, under taking a broad range of research projects with national andregional sport organi sations in Australia and Oceania, including Netball Australia,National Rugby League, Australian Football League, and Tennis Australia.Additional research areas include access and equity in sport participation, andsport and recreation for at-risk and marginalised communities. Emma is currentlysupervising a number of Ph.D. students in the areas of sport-for-development inIndia and with refugee communities, para-sport athlete wellbeing, and elite athletecareer transition.

Olan Scott is an Assistant Professor in Sport Management at University ofCanberra. His research into sport media particularly focuses on the mainstreammedia and fan engagement in social media. Dr. Scott is heavily involved inindustry-focused research including social media marketing, fan development,strategic planning, and brand-awareness market research in the Canberra com -munity. His investigations examine how events are framed by the media foraudience interpretation. In addition, he also researches the use of social media,leading projects involved in social media marketing for professional sports teams.He has also been a board member of the Canberra Cavalry since March 2015. Dr.Scott’s research provides a greater understanding of the way sports governing

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bodies, teams, and players interact with the paying public to build their loyalty base.Understanding and improving the way the industry approaches and engages fansoffers sports an opportunity to improve its positive societal role.

Clifford Stott is Professor of Social Psychology at Keele University in Staffordshire,United Kingdom. His work revolves around crowd psychology, collective conflict,and public order policing. He has published over 50 articles in leading interdisci-plinary journals and co-authored and edited three books, one of which was on the2011 English ‘riots’. He works regularly with police forces, governments, andfootball authorities across the world and is widely recognised as a global expert inhis field. In 2014, he was awarded the Economic and Social Research Council’s(ESRC) national award for the impact of his work on public policy. In 2015, hiswork was acknowledged by the ESRC as one of its ‘Top 50’ achievements in its50-year history. His research underpins recent human-rights-based reforms ofpublic order policing in the United Kingdom, Sweden, Denmark and Queensland,Australia.

Jules R. Woolf is an Assistant Professor at Adelphi University in the Department ofExercise Science, Health Studies, Physical Education and Sport Management. Hecompleted his Ph.D. in Sport Management at the University of Texas at Austinwhere he also earned a master’s degree in exercise physiology. His multidisciplinarybackground informs his practice as he attempts to combine his research training inphysiology, management, and communications. His research interests involve theways in which institutional and organisational forces impact the nexus betweensport and health. In essence, he is interested in the ways that sport is managed topromote positive and avoid negative health outcomes. A main focus of his researchexamines doping in sport. His research has been published in the Journal of SportManagement, International Journal of Sport Policy and Politics and the British Journal ofSports Medicine, among others.

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ACKNOWLEDGEMENTS

This book was conceived with the assistance of several people. From within theglobal community of sport management scholars, we received widespread encour-agement and support for the book, with several colleagues engaged as contributors.The international expertise and thoughtful reflections of these authors has pro -vided profound insights into critical aspects of sport management. Thank you forsharing your knowledge and for taking time to write, edit, and amend the chapters.

As editors, we were conscious of the need to make the material research drivenyet accessible and relevant for a wide audience of students, academics, and practi-tioners of sport management. Each of the contributing authors has honoured ourintent; we thank them for their collegiality and enthusiasm in achieving thatresearch goal. We also wanted to ensure the overall quality of the book andsubjected all chapters to rigorous editorial feedback. We believe that this approachhas been important to secure coherence and continuity in the development ofdifferent concepts and issues presented in the book. We especially thank Dr NatashaBlack for her outstanding editorial advice.

We also wish to acknowledge the encouragement and professionalism of theTaylor and Francis editorial team: Simon Whitmore (Senior CommissioningEditor), William Bailey (Editorial Assistant), and Cecily Davey (Editorial Assistant).Finally, and perhaps most importantly, we like to express our love and gratitude toAnja, Henry, Tanya, Tara and Alanna who cheered from the sidelines as this bookevolved.

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4INTEGRITY AND CORRUPTION IN SPORT

Catherine Ordway and Hayden Opie

Sport looms large in the lives of many people around the world. With the practiceof sport comes the many pleasures and rewards of physical exercise, feats of athleticskill, competition and contest, self-esteem, social connection and entertainingspectacle. Important human values are found, taught, and reinforced through sport;for example, the pursuit of excellence, honesty, fair play, respect for rules and laws,non-discrimination and respect for others, the educational value of good example,ethical behaviour and peaceful existence (see, for example, International OlympicCommittee (IOC), 2015; World Anti-Doping Agency (WADA), 2015). Specificexamples of those values grouped under the label of sportsmanship includeteamwork and team spirit, playing earnestly and never giving up, accepting theumpires’ decisions, humility in victory and graciousness in defeat. All of those attri -butes demonstrate the value of sport to individuals and society as well as contri buteto a collective love of sport for both participants and spectators (for a summary ofresearch on participant motivation and behaviour, see Sport Participation in Australia;Richards and Murphy, 2015). In significant measure, they underpin the ongoingsupport that governments and commercial enterprises of many kinds show for thedevelopment of sport.

However, over the past few decades, dark clouds have begun to dim this shiningvision of sport. From doping by famous athletes to the misappropriation of fundsat the highest levels of international sports organisations, such clouds are consideredthreats to the integrity of sport. In 2011, the then IOC president, Jacques Rogge,in his address to celebrate the hundredth year of the Japanese Olympic Committeesaid, ‘We have made doping a top priority, and now there is a new danger comingup that almost all countries have been affected by and that is corruption, match-fixing and illegal gambling’ (‘Jacques Rogge: Corruption’, 2011, para. 2).

The doping scandal surrounding the American cyclist and seven-time winner ofthe Tour de France, Lance Armstrong, attracted worldwide attention. As a supreme

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athlete, cancer survivor, and philanthropist, Armstrong was an inspiration to many.He encapsulated so well the values associated with sport. When Armstrong wasrevealed as a serial doping cheat and liar who pursued aggressively and remorse-lessly those who claimed he doped (U.S. Anti-Doping Agency, 2012), not only wasArmstrong’s reputation severely damaged, but so was that of his sport. Otherinternational superstar athletes who have been caught doping have included BenJohnson (Dubin, 1990) and Marion Jones (Shipley, 2007). Doping has not onlybeen at the initiative of individual athletes. Through the 1970s and 1980s, the EastGerman government maintained an extensive and hugely successful dopingprogramme across many sports in an effort to prove to the world the superiorityof its political and social system (Franke and Berendonk, 1997; Ungerleider, 2001).In Australia, an unresolved doping scandal, now in its third year, has raged aroundthe Essendon Football Club of the Australian Football League over an ill-fated‘supplements program’ (Le Grand, 2015).

Doping damages the integrity of the sporting competition as well as the valuesof sport (e.g., Lumpkin, 1983). Not only are athletes disgraced as ‘cheats’, butsuspicion of doping falls on other winning performances via the unproven sug -gestion that a victory could not have been achieved, or a record broken, withoutdoping. Athletes disinclined to dope come under pressure to do so because theycome to believe that they can never succeed when everyone, or nearly everyone,at the highest levels is breaking the rules. On the other hand, the increasinglystringent rules against doping can sweep up athletes who have unwittinglyconsumed a prohibited substance and it becomes very difficult for at least some ofthem to avoid an undeserved ‘disgraced drug cheat’ epitaph to their sportingcareers.

There have been some notorious instances of fixing the outcome of a sportingcompetition or some event within it in return for payment. Fixing is commonlyassociated with betting. Arguably the most famous fixing case of all time is the‘Black Sox Scandal’ in the United States. This is a play on the name of the famousMajor League Baseball (MLB) team the Chicago White Sox, whose players werealleged to be involved. It gave rise to the infamous expression, ‘Say it ain’t so, Joe’,and launched the sporting administration career of MLB’s first Commissioner, thelarger-than-life figure Judge Kenesaw Mountain Landis. The heavily favouredChicago White Sox lost the 1919 World Series to the Cincinnati Reds. Althoughthe eight accused players were acquitted of criminal charges by a jury (theconfessions of three of them had vanished mysteriously), Commissioner Landisplaced all of them on the permanently ineligible list which amounted to a life ban(Sigmund, 2004). More recently, major incidents have included scandals in Germanassociation football (Harding, 2005), English cricket,1 rugby league in New SouthWales (Massoud, 2014),2 and association football in Victoria,3 resulting in criminalconvictions and substantial or life bans for some of those involved.

The integrity of the governance of the world’s largest sports federation, theFédération Internationale de Football Association (FIFA), has been called intoquestion with ongoing controversy over whether the decisions to award the

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hosting rights for the 2018 and 2022 World Cups to Russia and Qatar, respectively,were tainted by bribery and improper voting deals and should be cancelled (Davis,2015). Also, various FIFA officials and others in the ‘football family’ from theAmericas have been detained in Switzerland with a view to their extradition to theUnited States to face serious criminal charges relating to commercial dealings infootball (‘FIFA Scandal’, 2015).

While the integrity of sport has in recent years become a widely used term,4

and protecting it a cause worthy of significant effort, it is essential to understandexactly what the term means and what safeguards and responses protectioninvolves. That is the purpose of this chapter, which will commence with an analysisof the meaning of the terms integrity of sport, corruption, doping, match-fixing and sportsbetting. In the second part of the chapter, strategies originating from beyond sportwill be drawn upon to identify and explain possible risk countermeasures and miti -gation solutions. These range from good governance practices throughintelligence-gathering and enhancement of athlete welfare to disciplinary andpenal measures. It is intended that practitioners and students of sports adminis-tration will be able employ an understanding of these terms and strategies topromote integrity in sport.

Terminology

Integrity of sport and associated terms such as corruption in sport and match-fixing are widely used with the assumption that there is a common internationalunderstanding of their meanings. It is also often believed that the behaviour theyreflect is of recent origin. Neither is accurate. However, the scale of occurrence,public attention, and regulatory responses linked to that behaviour are nowunprecedented.

Commensurate with the human values found, taught, and reinforced throughsport, it is suggested that attaining and maintaining a state of integrity should bethe aspiration of athletes, sports administrators, and sports organisations alike. Whatthen is meant by the term integrity of sport and what is the scope of its operation?

Integrity of sport

The Macquarie Dictionary provides the following definition of integrity: ‘Integrity(noun) 1. soundness of moral principle and character; uprightness; honesty 2. thestate of being whole, entire, or undiminished 3. sound, unimpaired or perfectcondition’ (‘Integrity’, 2001, p. 984).

These meanings can be applied to sport in the sense that the audience is entitledto rely on the outcome of a match or competition on the basis that it has beenplayed in accordance with the sport rules. This suggests that the outcome, orelements of the competition leading to the outcome, have not been affected byeither cheating to win (e.g., by doping) or cheating to lose (e.g., match-fixing). Inthat sense, not only does the competition have integrity, but so do the athletes who

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participate in it. This provides a normative, formal, or rule-based definition of theintegrity of a sporting competition.

Reliance on that rule-based approach can present difficulty in some commonlyencountered circumstances. Should a batter in cricket who has lightly glanced theball into the hands of the wicketkeeper ‘walk’ or await the call of the umpire whomay not have observed the snick? Is it acceptable to not try as hard to win as onemight in order not to risk injury or to preserve energy for a later stage of acompetition? Furthermore, is it acceptable to deliberately lose so as not to meet astrong opponent in the next phase of a tournament or to gain a favourableselection in an end-of-season draft for uncontracted players in a professionalleague? In the sport of Sumo, it has been known for leading wrestlers to intention -ally lose to young, inexperienced opponents so they may have a share of winningsand help build their fledgling careers. In each of these circumstances, the formalrules may not be broken, but is there a lack of integrity? If so, in which ones andwhy?

The Australian Sports Commission (ASC, n.d.) expands on this rule-basedapproach by defining integrity as ‘the integration of outward actions and innervalues’ (ASC, n.d., para. 1), and a sport as having integrity where it remains ‘true toits values, principles and rules’ (ASC, n.d., para. 6). By introducing principles andvalues, more reference points become available to determine the integrity ofparticular behaviour. The standards thereby reached may not result in sanctionsunder the rules of the sport, but may take form as unwritten rules or customs (e.g.,in association football, returning the ball to the opposition after a stoppage to treatan injured player) or simply attract the disapproval of fellow participants andspectators. These customary standards may evolve into formal rules of the sport.

For sports administrators and sports organisations, the attainment of integrityapplies to behaviour principally off the field of play. Compliance with establishedconstitutions and rules governing the sport’s organisation as well as respecting thelaws of the land are to be expected. As with the conduct of the sporting compe -tition, the notion of integrity extends beyond the formal rules. For an organisationto project an image of integrity, it has been suggested that its individuals should be‘considerate, compassionate, transparent, honest, and ethical’ (Duggar, 2009, p. 2).Sport participants and others dealing with a sports organisation should be able toplace their trust in the organisation with justifiable confidence. A dilemma mayarise for an organisation whose mission is to protect the integrity of sport. Is itconsistent with integrity to engage in ‘sharp practice’ or employ arguably unethical(but not illegal) measures so as to disrupt or successfully prosecute behaviour whichbreaches the anti-doping or anti-match-fixing rules of a sport? In other words,does the end justify the means?

A number of elements of the behaviour of sports administrators and sportsorganisations off the field of play which lack integrity are often considered underthe rubric of ‘corruption’. This term will now be examined.


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Corruption

The Macquarie Dictionary provides the following definition of corrupt: ‘Corrupt(adjective): 1. dishonest; without integrity; guilty of dishonesty, especially involvingbribery; a corrupt judge 2. debased in character; depraved; perverted; wicked; evil’(‘Corrupt’, 2001). Transparency International (n.d.), a respected watchdog ofgovern ment and business behaviour worldwide, defines corruption as ‘the abuse ofentrusted power for private gain’ (‘How Do You Define Corruption?’ section). TheUnited Nations Convention against Corruption describes corruption in theseterms:

Corruption is an insidious plague that has a wide range of corrosive effectson societies. It undermines democracy and the rule of law, leads to violationsof human rights, distorts markets, erodes the quality of life and allowsorganized crime, terrorism and other threats to human security to flourish.

(U.N. Office on Drugs and Crime, 2004, p. iii)

Corruption cannot occur without the involvement of people who lack integrity.The higher up the leadership ladder corruption occurs, the more evil it becomes.The more endemic corruption is in a society, the more difficult it is as a practicalmatter to impress on athletes and sports administrators that corruption in sport iswrong and that a path of integrity should be followed.

In sport, corruption has been identified as relating to money, power, status andprivilege (Unger, 2015). It is usually found in sports organisations in connectionwith commercial activities such as broadcasting and sponsorship deals and theallocation of hosting rights to major events. In the field of organisational govern -ance, corruption typically raises its head in the rigging of elections, making grantsfor facilities and development programmes and in patronage and kickbacks tofriends and allies of those in power.

Doping

The World Anti-Doping Code creates ten categories of anti-doping offence whichare known as ‘violations’. These include the use of prohibited substances or dopingmethods, the possession or trafficking in prohibited substances and refusing toundergo testing (WADA 2015).5

Match-fixing

A number of terms have been used to describe the phenomenon of improperlyinfluencing the outcome of a sporting contest or the happening of some elementwithin it. These include match-fixing and spot fixing, manipulation (Council ofEurope, 2014) and sporting fraud (Legal India, 2013). Match-fixing and spot fixingwill be used here.

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Match-fixing involves a lack of sporting integrity. Not only might it be contraryto the rules of sport, it may also amount to a crime. There is, however, no agreed-upon definition of match-fixing. This is in part attributable to the circumstancethat some instances of ‘match-fixing’ may not be regarded as wrongful if done forsome strategic or tactical sporting reasons.6 Other forms of match-fixing maycontra vene the rules of sport, but not the criminal law. The criminal law is morelikely to become involved when the fixing is associated with gambling.

Heron and Jiang (2010) suggested that match-fixing involves ‘improperly influ -encing the outcome or any dimension of a sports event for financial or personalbenefit’ (p. 99). Carpenter (2013) described match-fixing as ‘a dishonest activity byparticipants, team officials, match officials or other interested parties to ensure aspecific outcome in a particular sporting match or event for competitive advantageand/or financial gain which negatively impacts on the integrity of sport’ (p. 215).

Match-fixing can involve deciding not only who wins and loses, but the win -ning margin too. Spot fixing entails the improper influencing of an event orcontingency within a sporting competition. That might include the time and rateof scoring, the score at certain times, the occurrence of particular events such aswho scores first, the number of penalties awarded and so on.

In its most common form, match-fixing involves an intentional underperform -ance by players. Also of significance are instances where referees unfairly favour aparticular player or team. The instigator of the fix may offer the corruptedindividual or team a bribe in the form of payment of money or some favour, suchas career advancement or access to prostitutes. Particularly in the case of individuals,the corrupting request may follow a period of ‘grooming’. The term grooming hereis used in the same way as criminologists describe sexual predators incrementallygaining the trust of their potential victims in child abuse cases (Salter, 2003). In thesports setting, organised criminals, or former athletes, attempt to create friendshipbonds with vulnerable players. They seek to attend the same social venues, andprovide gifts such as alcohol, prostitutes, and gambling accounts before requestinginformation about playing conditions and coaching strategies which can be usedas a form of gambling insider trading.7 Additionally or separately, the corruptedindividual may be blackmailed by threats of violence or the prospect of exposureof some indiscretion, such as using banned doping agents or illicit drugs whichmight have been supplied by the instigator in the first place.8 The prospects for linksto organised crime are obvious.

J. Anderson (2012) suggested that it is important to draw a distinction between‘gambling-led corruption’ and non-betting related match-fixing, such as instanceswhere a participant might bribe an opponent so that the instigator may progress inthe competition. It is the explosion in Internet-based sports betting (to whichnational borders offer only modest impediment) that poses the most significantthreat to the integrity of sport: ‘The danger is that from illegal betting comesmatch-fixing, and you see more … attempts to manipulate matches. It is asdangerous as doping for the credibility of sport. It’s only the beginning of a hugebattle’ (Lane, 2011, p. 9).


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Sports betting

There is no international legal system for the regulation of betting on sports.Individ ual nations adopt different approaches. Some prohibit betting in all itsforms, while others allow some betting and in yet others many types of betting areavailable. Both Australia and the United Kingdom have relatively unrestrictedsports betting opportunities, while in China, India and the United States, sportsbetting is either illegal or heavily constrained (P. M. Anderson, Blackshaw, Siek -mann and Soek, 2012). Whether sports betting should be lawful and, if lawful, howmuch betting and under which circumstances it should be permitted remaincontested social issues globally. However, it is suggested that lawful sports bettingshould not in isolation be regarded as a sports integrity issue.

In countries where sports betting is lawful, it may be either extensively orlightly regulated. Grey markets is a term that refers to lightly regulated bettingmarkets because it becomes difficult to trace bets and establish the bona fide ofeither or both gamblers and betting service providers, despite a level ofregulation. Black (illegal) and grey sports betting markets are believed to offergreater prospects for betting participants to be linked to match-fixing, moneylaundering, and organised criminal activities. The Internet is progressivelybreaking down national regulatory approaches to sports betting with thosewilling to use Internet-based grey and black market operators finding it relativelyeasy to do so.

Three solutions: anti-corruption strategies and their application to sport

In his 2010 article ‘A Critical Mass of Corruption: Why Some Football LeaguesHave More Match-Fixing than Others’, leading academic and investigativejournalist in the field of match-fixing in sport, Declan Hill (2010), argued that

the data indicates that when similar conditions exist in a football league ina different country with a different cultural background – England in the 1950s [or China in the 2000s], players also engaged in match-fixing.I argue that it is the introduction of new market alternatives, combinedwith situations of relative deprivation and expectations of corruption, thatlead to high levels of corruption and the eventual collapse of the leagues.

(p. 222)

For sports administrators, sports boards, and those funding sports (whether govern -ment agencies or sponsors/partners), it is worth examining what can be done tothe micro-conditions inside individual clubs or sports to make them more resistantto corrupt practices.

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Leadership: ethical decision-making

The basic premise in looking to leadership to reduce the risk of corruption is thatalthough the most robust structures can be set in place (and some of them will bereferred to below), if the people entrusted with the stewardship of the organisationare open to – or actively engaged in – corrupt practices, then corruption withinthe organisation will thrive.

The influence of leaders in setting the culture of an organisation, both positivelyand negatively, has been researched extensively (Duggar, 2009). In its report, SafeHands: Building Integrity and Transparency at FIFA, Transparency International (2011)observed that if sports, such as football, are perceived to be led by a culture ofcorruption, then they will, in turn, have a higher probability of threats to theirintegrity.9 Corrupt leaders will set the tone for the organisation, and demonstratethat cheating and other corrupt practices are not only condoned, but might beactively encouraged.10 On the other hand, it is thought that negative, self-motivatedor other corrupt practices are extremely unlikely to be instigated or permitted byleaders with integrity. This effect increases when the leader is positioned higher onthe ladder of authority. One of the leading anti-corruption think tanks, theAustralian Commission for Law Enforcement Integrity (ACLEI, n.d.-b), recognisesthat ‘individuals vary in their motivation and decision-making processes’ and thattherefore organisations must vary their integrity strategies based on a valuesalignment (‘Values Alignment’ section, para. 1). It is therefore important for sportsorganisations to assess both the hard skills (knowledge and experience) and soft skills(values, inter-personal and emotional intelligence) in their decision-makers(Edwards and Clough, 2005).

Attracting and developing people with integrity is an obvious risk managementstrategy for a sports organisation. It is therefore important for sports organisationsto possess an understanding of how skills and values associated with integrity mightbe developed. There are a number of models that describe adult cognitive develop -ment. A model such as ‘vertical leadership: 7 leadership action-logics’ deve loped byRooke and Torbert (2005; Torbert, 2004) from the transformational leadershipwork made popular in the 1980s, is one model that describes a staged develop-mental approach to vertical development. Vertical development fosters higher or laterstages of vertical leadership. This concept is based in adult development theorywhich has stages describing levels of cognitive, emotional, and relationalcapabilities. Cook-Greuter (2004) described vertical development as the capacityto

learn to see the world through new eyes, how we change our interpretationsof experience and how we transform our views of reality. It describesincreases in what we are aware of, or what we pay attention to, and thereforewhat we can influence and integrate.

(p. 276)


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Each stage of thinking becomes increasingly more complex, incorporating theprevious level(s) and expanding awareness and capability as it increases the way aperson makes sense of reality.11

While a minority of people could be described as ‘born leaders’, Rooke andTorbert’s (2005) research supports the idea that sophisticated leadership skills canbe taught. Therefore, the identification and development of positive verticalleadership traits in sport decision-makers is crucial. Using models like action-logics,and implementing its profiling and vertical development tools, could assist sportdecision-makers in moving from a culture of people operating at the lower‘opportunistic’ levels of leadership, to those who have the ability to lead effectivelyand inspire others. Termed ‘Transforming (Strategist)’, ‘Alchemists’, or ‘Ironic/Ionist’ leaders in the action-logics model, these leaders are able to generate personaland organisational transformations, exercise powers of mutual inquiry, vigilanceand vulnerability and are conscious of paradox (Brown, 2013).

Nelson Mandela’s striking example of exemplary sport leadership is describedby Mohamed Muhsin (2013), himself said to be a visionary and highly functioningleader, as follows:

Mandela, in one of the most audacious political gambles of his career, appear -ed before the mostly white crowd of 62,000 wearing a Springbok jersey toshake the players’ hands before kick-off. The-then All Blacks coach LaurieMains said the entire stadium was electrified at the sight of South Africa’s firstblack president sporting a garment that was indelibly associated with theapartheid regime.

(para. 4)

That outward display of unity and reconciliation set the tone for wider develop -ments. It might therefore be suggested that if sports organisations have leaders whoare focused prominently on promoting an ethical vision for the organisation, aheadof self-interest and greed, then the risk of on-field integrity issues would be signif-icantly diminished.

Partnerships: information-sharing and inter-agency collaboration

It has been recognised for some time by the sports industry that, in order to protectsport from various integrity threats, it must work closely with governments andagencies with access to relevant information, knowledge, and resources. In the anti-doping environment, then WADA President, John Fahey, introduced the Guidelinesfor Coordinating Investigations and Sharing Anti-Doping Information and Evidence(WADA, 2011a), stating the following: ‘For some time now we have been sayingthat testing alone is not enough to lead the fight against doping in sport, and thatADOs need to develop stronger relationships with law enforcement agencies’(WADA, 2011b, ‘Guidelines’ section, para. 3). One major limitation of testing as a

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detection method is that it only applies to athletes, and therefore, coaches, doctors,and others involved in doping are not exposed through this approach. The othermajor limitation is that current testing methods cannot detect all prohibited sub -stances (or the detection windows are very short) – for example, peptide hormones(Barroso, Mazzoni and Rabin, 2008). Those involved in administering or traffickingin prohibited substances, including athlete support personnel, there fore need to beidentified through means other than testing. One way is through developingpartnerships with law enforcement agencies.

In May 2005, WADA and the Anti-Doping Norway Anti-Doping Symposiumidentified cooperation with police and customs as two of 18 factors for selectingathletes for detection purposes. This thinking was reflected in new powers given tothe Australian Sports Anti-Doping Authority in 2006 (Ings, 2007). The AustralianSports Anti-Doping Authority was the first national anti-doping organisation tohave legislated powers of information disclosure to allow it to exchange inform -ation with other sports and law enforcement bodies, such as Australian customs, thestate and federal police, the Therapeutic Goods Administration, national anti-doping organisations, and the International Sports Federations (IFs). Sharinginform ation between government agencies is consistent with the commonwealth‘whole of government’ approach, particularly for bodies with investigative powers(Carson, 2003).

In 2007, WADA (2007) described ‘a new era in anti-doping’, recognising thatthe illegal manufacture and distribution of performance-enhancing drugs (such asthat seen in the U.S. Bay Area Laboratory Co-Operative scandal) required coordi-nation with law enforcement. In 2006, the International Criminal PoliceOrgani sation (INTERPOL) and WADA committed to work together to identifyareas for cooper ation (WADA, n.d.-b). The 2008 Memorandum of Understandingset out a framework for cooperation in tracking doping, in particular in the areaof evidence-gathering and information-sharing. This arrangement included theprovision by the French government of a seconded officer based at INTERPOL’sheadquarters in Lyon to liaise between WADA, the governments, and the sportmovement (WADA, 2008; ‘WADA Advances Cooperation’, 2008). Thecooperation agreement between INTERPOL and WADA (2009) was formallysigned in 2009.

Similarly, in relation to match-fixing, it has been recognised that ‘no organisationcan tackle the problem of match-fixing alone’ (INTERPOL, 2015, para. 4). In May2011, INTERPOL and FIFA entered into a joint initiative with FIFA (2011)pledging to contribute €20 million over ten years to INTERPOL’s Integrity inSport programme. INTERPOL and FIFA stated that a cross-sector approach isnecessary at national, regional, and international levels in order to successfullyreduce match-fixing. Further, ‘strategies should incorporate partnerships betweennational football associations and betting organizations as well as public authoritiesincluding law enforcement and regulators’ (INTERPOL, n.d., ‘A Multi-FacetedApproach Section’, para. 2). The first phase of the programme (2011–2014) focusedon raising awareness, with the second phase from 2014 onwards, addressing


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capacity building with targeted training courses delivered to participants in allregions of the world (INTERPOL, n.d.). This has included the opening of amultimillion dollar INTERPOL Global Complex for Innovation building in April2015 in Singapore (INTERPOL, 2013; ‘Interpol Opens New Singapore Head -quarters’, 2015).

The enthusiasm for public–private partnerships of this nature may have cooledsomewhat after INTERPOL announced its decision to suspend the agreementin June 2015, following the FBI investigations into corruption against football’sgoverning body, which included a freeze on the use of the remaining financialcontributions from FIFA. That raises concerns over INTERPOL accepting moneyfrom organisations it could potentially be investigating, as its independence wouldbe called into question (Simons, 2015).

Good governance: transparency and accountability

Many of the IFs and major games organisers, such as the IOC, are based inSwitzerland. This location was arguably chosen because of the favourable tax statusenjoyed, but also, as private organisations are not subject to the level of corporateaccountability that might be expected in many other jurisdictions (Fridman, 1999).Over the last 15 years, Swiss taxation and corporations laws have been reviewedwith the aim of tightening up governance requirements relating to private corp -orations (Geeraert, 2014; Jones, 2013; Zulauf and Weder, n.d.). In the absence ofany sweeping changes coming through in the near future, the Action for GoodGovernance in International Sports Organisations, has developed the SportsGovernance Observer (SGO) tool (‘Sports Governance Observer’, 2015). TheSGO is an example of a mechanism to shine a light on the IFs in a consistent wayto demonstrate the extent to which these organisations implement best practicesin good governance. The headings used by the SGO include

1 Transparency and public communications,2 Democratic process,3 Checks and balances, and4 Solidarity (Chappelet and Mrkonjic, 2013).

Under the heading of ‘Democratic Process’, the SGO assesses whether the organi-sation ‘has gender equity guidelines for its leading officials’ (Alm, 2013, p. 219).There is mounting evidence in the corporate world (Ruigrok, Peck and Tacheva,2007; van der Walt and Ingley, 2003) and in anti-corruption research (TransparencyInternational, 2014a) that leadership diversity – and gender equity in particular –is a risk management tool that could also positively impact integrity outcomes insport. Requiring organisations in the sports movement to report on the gendersplit of their executive, senior managers as well as their coaching, high performance,and officiating staff would also promote transparency (Alm, 2013; Sydney Score -board, n.d.).

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Another method for creating greater transparency is the publishing of inde -pendent governance reports. This can occur at the instigation of the sports body,governments, or private watchdogs. At the international level, a number haveappeared in recent years, including the following:

• FIFA (football): Safe Hands report (Transparency International, 2011);• International Cricket Council (cricket): Lord Woolf and Pricewater -

houseCoopers 2012 report and Fair Play: Strengthening Integrity and Transparencyin Cricket (Transparency International, 2013); and

• Union Cycliste Internationale (cycling): Cycling Independent Reform Com -mission 2015 report.

Surprisingly, it has taken the recent crisis involving the prosecutions of current andformer senior members of the FIFA Executive (‘FIFA Scandal’, 2015) for the IOCto announce the introduction of independent auditing of the governance andfunds provided to the IFs (Play the Game, 2015).12

Awareness and education

No behavioural change strategy is complete without both awareness and educationprogrammes. Outward communication channels with the aim of creating generalawareness of the challenges and possible solutions are made available for the generalpublic, media outlets, school children and stakeholders with an indirect associationwith the sports industry. Those directly impacted by integrity risks need to havemore detailed and targeted education programmes.

Education and advocacy have been the primary strategies used by the nationalanti-doping organisations since anti-doping first became a serious issue on theagenda for sports ministers around the globe (e.g., Australian Sports Drug AgencyAct, 1990). To combat match-fixing, education and awareness have also beenprioritised. For example, prior to the recent suspension of the relationship,INTERPOL and FIFA adopted the following strategies to lower the risk ofmatch-fixing:

• Prevention: Prevention measures include awareness raising, training, andeducation.

• Information: All partners – including stakeholders, key actors, and targets –need general details about match-fixing to ensure there is a shared under -standing of the problem. Each group also needs specific advice that can directlyassist them in their individual roles in protecting the integrity of sport(INTERPOL, n.d., p. 2).

A similar approach has been adopted through a partnership between the GermanTransparency International chapter and the German Professional Football League.Since 2014, the German Transparency International chapter has been advising the


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German Professional Football League on the project, ‘Transparency and Integrityin Football’, which focuses on how to prevent match-fixing. Germany was the firstpilot country involved in Transparency International’s (2014b) education sessions,workshops, and media events on how to stop match-fixing.

Sport industry regulatory frameworks

Sports have gradually improved the documentation of their policies and pro -cedures so that it is clear to athletes and their entourage what level of behaviouris expected of them. Leaving aside considerations of the appropriateness of im -posing ‘role model’ status on elite athletes, it is now very common for athletes tobe contract ually bound to codes of conduct or ethics codes, team and sponsor shipagree ments, and nutritional, medical, and anti-doping policies. These agreementsprohibit behaviour ‘bringing the sport into disrepute’ or against the ‘spirit ofsport’. For example, the Australian Olympic Committee (2015) Team MembershipAgreement for the 2016 Rio Olympic Games sets out the athlete’s obligations asfollows:

As a member of the Team, I shall:…2) respect the spirit of fair play and non-violence and behave accordingly;…4) not at any time engage in conduct (whether publicly known or not and

whether before or after the date of my selection), which has brought,brings or would have the tendency to bring me or my sport into disreputeor censure.

(Clause 4.1)

The anti-doping policies have developed in sophistication from the simple 1928ban by the then International Amateur Athletic Federation on the ‘use of stim -ulating substances’ (International Association of Athletics Federations, 1928) to thecurrent four-part, 152-page World Anti-Doping Code (WADA, 2015) which servesas a model for adoption by sports organisations worldwide under the leader ship ofWADA. The Code sets out that ‘doping is fundamentally contrary to the spirit ofsport’ (WADA, 2015, p. 14). This harmonised approach received the support ofnational governments via the UNESCO (2005) International Con vention againstDoping in Sport (see also Marriott-Lloyd, 2010).

Included in INTERPOL and FIFA’s match-fixing prevention strategies aredeter rent regulations involving sanctions for unprofessional behaviour (INTER -POL, n.d.). INTERPOL and FIFA reflect WADA’s standardised and harmon isedapproach by reiterating the importance for ‘all stakeholders [to] operate in acoordinated manner, especially at national level, to ensure a comprehensive andunified approach to both the prevention of match-fixing and responses toallegations of match-fixing’ (INTERPOL, n.d., para. 2).

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Early warning systems

For law enforcement agencies investigating corruption, money laundering andfraud offences, it is crucial to be able to follow the money trail. Investigations areoften triggered by financial thresholds or other irregular accounting practices(Australian Transactions Reports and Analysis Centre, 2011). Similarly, to identifypossible match-fixing, sports organisations are using quantitative analyses of bettingmarket statistics (e.g., SportRadar; www.sportradar.com/). By analysing regulatedand some grey betting markets (though not usually the unregulated or blackmarkets), recommendations can be made on whether to allow the match to goahead, or which matches warrant further investigation. Initial piloting work iscurrently being done to analyse performance measurements based on patterns,trends, decisions and behaviour in play (motivation, decision-making, intensity andvulnerability) to identify those players who attract suspicion and warrant furtherinvestigation (e.g., SportsWizard; http://sportswizard.com/).

In anti-doping, qualitative analytics on athletes’ motivations to dope, such asreturn from injury, career progression (breaking in or prolonging) and referenceevents, have been taken into account in assigning target testing for many years(Hanstad and Loland, 2005). This work has more recently been supplemented byquantitative data collected from ‘biological passports’ (WADA, n.d.-a). The WorldAnti-Doping Code allows for anti-doping rule violations to be proven via ‘any reliablemeans’ (WADA, 2015, Article 3.2). Over the last 15 years approximately, anti-dopingorganisations have used markers and biological indicators to be able to assess anindividual’s ‘normal’ thresholds (Ashenden, 2002; Schumacher and Pottgiesser, 2009).

Whistleblowing and reporting systems

It is important that people with knowledge about corrupt practices have theoppor tunity to safely report their concerns and information to the investigativebodies. Integrity organisations have a strong interest in protecting whistle blowers,particularly when the information may relate to the activities of organised, andpossibly highly dangerous, criminals. Therefore, some sports organisations haveencouraged people to provide information anonymously or via encrypted services.Conversely, investigators need to be able to verify the source of the informationprovided in order to be able to determine its reliability. Using law enforcementtools, sport and anti-doping agencies receiving information via well-publicised‘Stamp Out Doping’ (or similarly named) integrity hotlines13 assess the informationto exclude the possibility that information may be erroneous or mistaken, orprovided with the intention to adversely impact competitors.

Integrity units, officials and networks

While there is no standardised understanding of what an ‘integrity officer’ dutystatement might contain, a number of sport organisations have established integrity


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units to develop and enforce their own codes of conduct and ethics policies. Manysport organisations have focused on recruiting and/or developing intelligence andinvestigative skills, such as in horse racing,14 cricket,15 and tennis.16 Governmentagencies, such as the Australian National Integrity of Sport Unit (NISU), havetended to have a purely policy-based role. NISU is focused on education, facili-tating an integrity network of state government, sport and law enforcementpersonnel and providing template documents to support the work of otherintegrity units (Australian Government Department of Health, 2013).

Legislation and the role of penal measures

At the international governmental level, participants at the fifth World Conferenceof Sports Ministers in May 2013 adopted a range of recommendations calling onUNESCO Member States to enact legislation to protect the integrity of sportfrom the threat posed by transnational organised crime, doping, the manipulationof sports competitions and corruption (UNESCO, 2013; see also Bang, 2013). TheIntergovernmental Committee for Physical Education and Sport has also included‘better integrity in sport’ for the first time in the latest draft version of theInternational Charter of Physical Education, Physical Activity and Sport (Andersen andAlvad, 2015; UNESCO, 2014).

In relation to match-fixing, Australia is one of the leading nations in adopting anational policy and prescribing a maximum ten-year jail term (Australian Govern -ment Department of Health, 2014). By way of comparison, while Australia also hasa national anti-doping framework17 and a national anti-doping organisationestablished through its own Act of Parliament, Australia (along with WADA) doesnot consider it appropriate to criminalise doping in sport.18

Asset protection: athlete welfare

In the context of integrity in organisational models generally, ACLEI (n.d.) citesasset protection as one of its corruption prevention key concepts. ACLEI’s (n.d.) assetprotection model ‘recognises that investment and proper management of integrityand professional standards builds the capability of an agency, in the same way thatinvesting in people or information does’ (‘Asset Protection Model’ section, para. 2).This concept can be applied specifically to the sports context. Integrity in theorganisation can be seen as an asset in the same way as both athletes and staff needto be developed and empowered by their sports within an integrity framework. Inhis book The Insider’s Guide to Match-Fixing in Football, Declan Hill (2013) wentfurther by arguing that the first priority is to address baseline survival issues. Hillcalled on sports organisations to reduce integrity risks through providing for theathletes’ welfare, paying them appropriately and on time and supporting vulnerableathletes (e.g., those with gambling and prescription drug addictions). WADA hasalso funded a number of important social science studies into doping athletes’motivations and rationale in order to assist in shaping the education and welfare

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programmes (Moston, Engelberg and Skinner, 2015). It is clear from both WADA’sand Hill’s research that financial rewards are motivators both in cheating-to-win(doping) and cheating-to-lose (match-fixing) scenarios which leads to theconclusion that measures aimed at minimising the financial vulnerability of playerswill, at least in some cases, head off such cheating activity.

Anecdotal evidence suggests that differences in the approach of sports organi-sations to player welfare impacts on integrity issues. For example, the AustralianFootball League has taken a strong ‘health’ approach to tackling illicit drug useamong its players, which arguably has paid dividends in both assisting the playersand in protecting the sport’s brand (Harcourt, Unglik and Cook, 2012). By way ofcom parison, there have been questions raised in connection with the match-fixingcase involving Ryan Tandy (Massoud, 2014) about the role the sport (rugby league)and the club should have played in disrupting/detecting suspicious behaviour.19

Although an independent investigation appointed by the National Rugby League(NRL) Integrity Unit cleared Canterbury Bulldogs’ General Manager of FootballOperations, Alan Thompson, and the NRL’s Head of Football, Todd Greenberg, ofknowing about Tandy’s gambling debts, and failing to act ahead of the fix, moreimport antly, questions remain about the extent to which the club/NRL shouldhave supported Tandy to help overcome his gambling and drug addictions(‘Greenberg Cleared’, 2014; ‘NRL Reportedly Investigating Todd Greenberg’,2014; Welch, 2014).

Research and the facilitation of new ideas and approaches

A number of organisations have committed funding and/or supported new ideasand research through paper prizes and other grants and competitions to encouragepeople interested in integrity in sport issues to share and develop their solutions.In the anti-doping field, since 2001, WADA has committed US $60 million toresearch (WADA, n.d.-c). The IOC (2014), National Olympic Com mittees andsports on the Olympic Program have a number of different PhD and other researchgrants available to those interested in promoting integrity aims.

General anti-corruption competitions have also awarded prizes for sportintegrity initiatives (International Anti-Corruption Conference, n.d.). TransparencyInternational has continued its commitment to integrity in sport by promoting,what it terms as a

space for new analysis, commentary and recommendations by leading voicesin the field of sports governance to strengthen transparency, accountabilityand participation [to] showcase the work of TI national chapters and thewider anti-corruption movement in tackling corruption in sport.

(Sweeney, 2015, para. 5)

In the spirit of people-powered approaches to anti-corruption (Beyerle, 2014),there have been recent social media campaigns to try to return control of sports


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organisations to the fans and the players. For example, the New FIFA Nowcampaign (www.newfifanow.org/), led by European Parliament members Ivo Beletand Emma McClarkin, held a coalition meeting in Brussels on 21 January 2015.The summit sought to establish a FIFA Reform Commission and published aCharter for Change (New FIFA Now, 2015) and Guiding Principles for Demo -cracy, Transparency and Accountability (New FIFA Now, n.d.-a). It remains to beseen whether initiatives of this kind can exert sufficient pressure to create lastingchange in the otherwise largely unaccountable sports organisations.

Conclusion

Here muscles win, and speedy feet, not lots of money spent to cheat (‘Cheating in the Ancient Olympics,’ para. 1)20

Whether the motivation is to uphold the intrinsic positive values of sport, orotherwise to protect a sport’s brand from a purely commercial perspective, it is clearthat it will only become more important that sports administrators have a goodunderstanding of what the possible threats to the integrity of sport are and howthose threats might be dealt with.

Cheating has long been present in every human endeavour causing somepsychologists to spend their entire careers examining why we cheat (Fang andCasadevall, 2013). Sport presents unique challenges that go beyond thetraditional temptations of corruption: fraud, nepotism, and other self-servingabuses of trust. Cheating to win (doping) and cheating-to-lose (match-fixing)incentives have only been further exacerbated by the vast financial gains made byathletes through sponsorships, prize money, and season contracts, or via thepunters eager to participate in the various regulated or poor-to-unregulatedgambling markets.

As has been outlined in this chapter, and in the chapters to follow in this book,there is no ‘silver bullet’ or single solution to solve all the integrity challenges facingsport today. Whether by tackling cultural and leadership issues through awarenessand education campaigns, enforcing sport rules and legislative processes, improvingrelationships with like-minded entities or creating greater transparency around pre-and post-reporting mechanisms, it is clear that sport must look to other industriesfor guidance and solutions. Sports organisations will have to adopt higher standardsof accountability and transparency. Sport integrity is a complex concept. By draw ing on and adapting a number of strategies, sports administrators have theoppor tunity to leave a positive legacy for the next generation inspired to believe inthe spirit of sport.

Notes

1 In a case of spot fixing as part of an alleged betting scam, three no balls were arrangedto be bowled during a test match between Pakistan and England. The players involved

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were convicted and jailed (see R v. Amir, 2011, EWCA Crim 2914; Gardiner, S. ‘R v Amirand Butt, 2011 EWCA Civ 2914).

2 In 2011, Ryan Tandy of the Canterbury Bulldogs of the Australian NRL was chargedand convicted of the criminal offence of ‘attempting to dishonestly obtain a financialadvantage by deception’. This involved a case of spot fixing where betting dividends of$100,000 could have been won had the first score in a match resulted from a penalty,which Ryan deliberately conceded (see Massoud, 2014).

3 In 2013, an elaborately planned match-fixing scandal orchestrated by an Asian bettingring engulfed the Victorian Premier League, a state-based association footballcompetition which sat below the Australian national competition. The Southern Starsteam had won only one of 21 matches, yet on 18 August 2013, the bottom-of-the-tableclub defeated the competition leader 1-0. Some specially imported players and the localring leader were convicted of various criminal offences and life bans were issued(Portelli and Rolfe, 2014).

4 For example, Senator McCain introduced the bill which became the AmateurSport Integrity Act into the U.S. Senate in 2001 (S. 718) and in Australia, the NationalSport Integrity Unit was established by the Commonwealth Government in 2012(Australian Government Department of Health, 2016).

5 Numerous cases have considered these violations. For more, see David (2013).6 Ibid cl 3(i). For example, compare the coaching techniques of blooding (i.e., resting star

players and giving an opportunity for junior athletes to play off the bench; Woolley,2009) and tanking (i.e., deliberately losing towards the end of the season to be in astronger posi tion to select players in the following season draft process; Balsdon, Fong,Thayer, 2007).

7 The example of South African cricket captain, Hansie Cronje, is instructive (Forrest,2012). For more, see Anderson, Duval, Van, and McArdle (2014).

8 Extortion is discussed further, for example, by Declan Hill (2002).9 For example, following the December 2010 announcement that Russia would host the

2018 Men’s World Cup and Qatar the 2022 Men’s World Cup, Transparency Inter -national outlined a number of specific, concrete actions the international governingbody of football, FIFA could take to repair its reputation (see, for example, ‘EnglandMiss Out’, 2010).

10 ACLEI (n.d.-a) also refers to leaders setting the ‘tone from the top’ and ‘regardsmanagers and supervisors as the frontline of corruption control’ (‘Leadership andCulture’ section, paras. 1–2).

11 With thanks to Caron Egle of Sage Thinking (www.sagethinking.com.au/) for herexplanation of conscious leadership development.

12 The status of the FIFA Executive members who voted in the 2018 and 2022 men’s World Cup tournaments (as at November 2015) are set out by New FIFA Now (n.d.-b).

13 Australian Sports Anti-Doping Authority hotline (www.asada.gov.au/anti-doping-programmes/intelligence) and confidential Report Doping webpage (www.asada.gov.au/report-doping); UK Anti-Doping, ‘Report Doping in Sport’ (www.ukad.org.uk/what-we-do/report-doping/); UCI (cycling) Professional cyclist help line(www.cyclingsa.com/anti-doping-press/2014/9/28/uci-launches-anti-doping-helpline-for-professional-riders); British Horseracing Authority, Race Straight hotline,Integrity, BHA, (www.britishhorseracing.com/resource-centre/integrity/)

14 For example, the British Horseracing Authority (n.d.) is currently undergoing a reviewinvolving ‘the timeliness of investigations, case management and processing ofapplications; communication; participant engagement and education; internal processes


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and performance monitoring; and technological threats and opportunities’ (‘IntegrityReview’ section, para. 3).

15 In 2000, the International Cricket Council launched their Anti-Corruption andSecurity Unit; however, only 1 per cent of their profit was budgeted and spent on theunit (Carpenter, 2012).

16 The International Tennis Federation reportedly spends 30 per cent of its worldwidedevelopment fund on its Integrity Unit (Gardiner and Naidoo, 2006).

17 On 11 February 2011, all Australian sports ministers endorsed on behalf of theirgovernments, an updated National Anti-Doping Framework with the aim of aligningdomestic anti-doping efforts in Australia through a set of agreed upon principles, along -side clearly identified areas for cooperation among Australian governments (AustralianGovernment Department of Health, 2015).

18 This is in contrast to the approach taken in France, Italy and Germany where dopingis decriminalised; for example, in 1998, vials of EPO were found in a French Festinateam car following a police raid at the Tour de France. Several riders and team supportcrew were suspended (‘WADA Against Jail’, 2014).

19 In April 2014, Tandy was found dead from a reported drug overdose (‘Former NRLPlayer’, 2014; Massoud, 2014).

20 In ancient Greece, fines paid by athletes who broke the rules went to buy bronze statuesof Zeus hurling thunderbolts like javelins. Called ‘Zanes’, they were set up along theroad to the stadium, where the athletes could read on them warnings in couplets likethis one (‘Cheating in the Ancient Olympic’, n.d.).

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World Anti-Doping Agency. (n.d.-b). INTERPOL Cooperation. Retrieved fromwww.wada-ama.org/en/what-we-do/investigation-trafficking/trafficking/interpol-cooperation

World Anti-Doping Agency. (n.d.-c). Research. Retrieved from www.wada-ama.org/en/what-we-do/science-medical/research

World Anti-Doping Agency. (2005, May). Planning doping control for the purpose of detecting,deterring and/or preventing the use of prohibited substances. Oslo: World Anti-Doping Agency .

World Anti-Doping Agency. (2007, March 12). WADA applauds actions targeting the illegalmanufacture and distribution of doping substances: New era in anti-doping must involve coordinationwith law enforcement [Press release]. Retrieved from www.wada-ama.org/en/media/news/2007-03/wada-applauds-actions-targeting-the-illegal-manufacture-and-distribution-of

World Anti-Doping Agency. (2008, November 23). Minutes of the WADA Foundation boardmeeting. Retrieved from https://wada-main-prod.s3.amazonaws.com/resources/files/wada_foundationboardminutes_200811_en.pdf

World Anti-Doping Agency. (2011a, January 5). Guidelines for coordinating investigations andsharing anti-doping information and evidence. Retrieved from www.wada-ama.org/

62 Ordway and Opie

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en/resources/world-anti-doping-program/coordinating-investigations-and-sharing-anti-doping-information

World Anti-Doping Agency. (2011b). Investigations. Retrieved from www.wada-ama.org/en/investigations

World Anti-Doping Agency. (2015). World Anti-Doping Code. Retrieved from www.wada-ama.org/en/what-we-do/the-code

Zulauf, R. and Weder D. (n.d.). Swiss corporate law tax reform III. Retrieved fromwww2.deloitte.com/ch/en/pages/tax/articles/corporate-tax-reform-III.html


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Chapter 2: Good governance: independence and gender equality

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Chapter 2 Overview Good Governance: Independence and Gender Equality

One of the proposals set out in Chapter 1, Publication #1 by Ordway & Opie (2017), is that

sports organisations embracing concepts of “good governance” will be more resistant to

corruption, on-field and off-field. This proposal is explored further in this Chapter 2. Good

governance encompasses practices designed to achieve greater transparency, accountability,

and, under an Ethics of Care approach (Gilligan 1982), fairness, diversity and inclusion.

In Publication #2, Governance and Anti-Doping: Beyond the Fox and the Hen House, Nehme

& Ordway (2016) analyse the governance structure of the World Anti-Doping Agency

(WADA). WADA was established by the International Olympic Committee [IOC] in

partnership with the national governments as a hybrid public-private international umbrella

organisation to promote drug-free sport. As was explored further in the article, Cleaning Up

Sport: Conflicts of Interest at the Top (Appendix B(j)), the IOC’s Declaration of the 5th

Olympic Summit (October 2016), also identified that WADA’s lack of structural

independence and conflicts of interest have contributed to the highly publicised criticism

levelled at WADA. Nehme & Ordway (2016) made a number of suggestions, particularly on

the independence of WADA’s governance structures, and introducing gender equity

measures throughout WADA’s committees and decision-making bodies. Dr Ulrich Haas and

Deborah Healey edited the book that the chapter by Nehme & Ordway (2016) appeared in

(Publication #2). Haas is also the Chair of WADA’s Working Group on Governance Matters,

so presumably, Haas and possibly other members of the Working Group, have considered the

initiatives made by Nehme and Ordway (2016). It is pleasing to note that the

recommendations of the Working Group, approved by WADA's Foundation Board on 15

November 2018, included both criteria defining the “independence” of WADA’s decision-

makers and gender equity measures throughout the various WADA bodies (WADA 2018).

The recommendations made by Nehme & Ordway (2016) aimed at improving gender

diversity inside WADA are expanded on in Publication #3: Gender Equality Achieved

Through Love: promoting an Ethics of Care [EoC] Approach in Football (FFA) (originally

titled How to achieve gender equality in sport governance: Case study Football Federation

of Australia). The Football Federation of Australia [FFA] was required by the international

federation [FIFA] to amend its constitution so that it is: “constituted in accordance with the

principles of representative democracy and taking into account the importance of gender

equality in football” (FIFA 2016 Art.15(j)). Through the author’s involvement with the

advocacy group, Women Onside, the FIFA Congress Review Working Group was influenced

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to include many constitutional changes promoting gender equality, including: the 40:40:20

principle, the introduction of the Women’s Football Council, the inclusion of male and

female representatives at General Meetings, and the requirement that the Chair and Deputy

Chair of the FFA Board are different genders (FFA Constitution 2018).

Further follow-up work to assess the impact these initiatives have had on the integrity of

these bodies, namely, WADA and the FFA, is warranted once they have been fully

embedded.

References: Football Federation of Australia (FFA). (2018). FFA Constitution Approved 16 October 2018. retrieved from https://www.ffa.com.au/sites/ffa/files/2018-10/CON%2018-1016%20FFA%20Constitution%20-%2016%20October%202018%20-%20FINAL.pdf Federation International de Football Association (FIFA). (2016). FIFA Statutes April 2016 edition. https://resources.fifa.com/image/upload/the-fifa-statutes-in-force-as-of-27-april-2016-2782907.pdf?cloudid=vga5sv1yxeayptzrdudx Gilligan, C. (1982). In a Different Voice. Cambridge: Harvard University Press. World Anti-Doping Agency (WADA). (2018). Working Group on Governance Matters, Recommendations for Consideration by the WADA Foundation Board, World Anti-Doping Agency Foundation Board Meeting 15 November 2018 Agenda Item #4.1, Attachment 1, retrieved from https://www.wada-ama.org/sites/default/files/resources/files/item_4_1_attach_1_wggov_recommendations_and_annexes_26102018_final.pdf

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https://www.ffa.com.au/sites/ffa/files/2018-10/CON%2018-1016%20FFA%20Constitution%20-%2016%20October%202018%20-%20FINAL.pdf


https://resources.fifa.com/image/upload/the-fifa-statutes-in-force-as-of-27-april-2016-2782907.pdf?cloudid=vga5sv1yxeayptzrdudx


https://www.wada-ama.org/sites/default/files/resources/files/item_4_1_attach_1_wggov_recommendations_and_annexes_26102018_final.pdf



Part V

The World Anti-Doping Code as Regulation: Governance

and Compliance

PUBLICATION #2

89

* Senior Lecturer, Faculty of Law, UNSW Australia. ** Anti-doping consultant and Professor of Practice (Sport Management), La Trobe University. 1 See, eg, Wladimir Andreff and Stefan Szymanski (eds), Handbook on the Economics of Sport

( Cheltenham , Edward Elgar , 2006 ) ; SportsEconAustria et al, ‘ Study on the Contribution of Sport to Economic Growth and Employment in the EU ’ (Final Report, 2012) http://ec.europa.eu/sport/library/studies/study-contribution-spors-economic-growth-fi nal-rpt.pdf .

2 Roger Levermore and Aaron Beacon , ‘ Sport and Development : Mapping the Field ’ in Roger Levermore and Aaron Beacon (eds), Sport and International Development : Global Culture and Sport ( Basingstoke , Palgrave Macmillan , 2009 ) 1 .

3 Michae ë l Mrkonjic and Arnout Geeraert , ‘ Sports Organisations, Autonomy and Good Governance ’ in Jens Alm (ed), Action for Good Governance in International Sports Organisations ( Copenhagen , Danish Institute for Sports Studies , 2013 ) 133, 134 .

4 John Locke , Two Treatises of Government ( New York , Hafner Publishing Co, fi rst published in 1690 , 1947 edn ) 184 – 86 . While not specifi cally addressing sport as an institution, Locke ’ s work dis-cussed the development of rules and sanctions before the creation of the state. Sport has had a com-parable development history.

5 Jean-Loup Chappelet , Autonomy of Sport in Europe ( Strasbourg , Council of Europe Publishing , 2010 ), 14 , cited in Mrkonjic and Geeraert (n 3) 133, 134.

11 Governance and Anti-Doping:

Beyond the Fox and the Hen House

MARINA NEHME * AND CATHERINE ORDWAY **

Introduction

Sport plays a key role in our society. In fact, it may be viewed as an engine of economic growth 1 and social change. 2 Since its humble beginnings, a form of social contract has developed between sport organisations and governments, resulting in the establishment of voluntary sport associations which create their own rules and regulations. 3 The state plays a limited role in the imposition of rules and obligations arising from the growth of the sport sector. 4 This social con-tract is embedded in the foundation of the sporting entities. For example, after the establishment of the International Olympic Committee (IOC), the key authority on all issues relating to the Olympic Movement, its founder, Pierre de Coubertin, noted that ‘ the beam formed by the goodwill of all members of an autonomous sport, relaxes when the giant fi gure of this dangerous and imprecise fi gure called state appears ’ . 5 Similarly, the F é d é ration Internationale de Football Association

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208 Marina Nehme and Catherine Ordway

6 Mrkonjic and Geeraert (n 3) 134. 7 Hans Bruyninckx , ‘ Global Sports: Time for a Changing Climate, in Times of Climate Change ’

( Paper presented at the Play the Game Conference , Denmark , 27 October 2015 ) . See also Hans Bruyn-inckx , ‘ Sports Governance : Between the Obsession with Rules and Regulation and the Aversion to Being Ruled and Regulated ’ in Barbara Segaert et al (eds), Sports Governance, Development and Corpo-rate Responsibility ( Abingdon , Routledge , 2012 ) 107 .

8 See, eg, David Rowe , ‘ Sport: Scandal, Gender and the Nation ’ ( Institute for Culture and Soci-ety Occasional Paper 4.3 , 2013 ) 4 – 8 http://uws.edu.au/__data/assets/pdf_fi le/0005/539123/ICS_ Occasional_Paper_Series_4_3.pdf .

9 Arnout Geeraert, ‘ The Governance Agenda and its Relevance for Sport: Introducing the Four Dimensions of the AGGIS Sports Governance Observer ’ in Alm (n 3) 9, 10.

10 European Commission, ‘ Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Developing the European Dimension of Sport ’ ( Report No COM ( 2011 ) 12 fi nal , 18 January 2011) para 4.1, 10, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0012:FIN:en:PDF .

11 Kees van Kersbergen and Frans van Waarden , ‘ Governance ’ as a Bridge between Disciplines : Cross-Disciplinary Inspiration Regarding Shifts in Governance and Problems of Governability, Accountability and Legitimacy ’ ( 2004 ) 43 European Journal of Political Research 143, 147 .

12 Committee on the Financial Aspects of Corporate Governance, ‘ The Financial Aspects of Corporate Governance ’ (Report, 1 December 1992) [2.5], www.icaew.com/~/media/corporate/fi les/library/subjects/corporate%20governance/fi nancial%20aspects%20of%20corporate%20governance.ashx .

13 Deborah Healey , ‘ Governance in Sport : Outside the Box ’ ( 2012 ) 23 ( 3 ) Economic and Labour Relations Review 39, 39 .

(FIFA) was established in 1904 by men who also believed in the separation of sport from the state. 6 Arguably, this has led to what Hans Buyninckx, the Executive Director of the European Environment Agency, calls the concept of ‘ exceptional-ism ’ of sport: the general ‘ rules ’ required of all other institutions and corporations within society do not apply to sporting organisations. 7

The double-edged sword of elite sport is that the same positive drivers needed to achieve perfection in human athletic pursuits can also lead to greed, selfi shness, egotism and cheating in both athletes and support staff. These drivers, combined with the explosion in the commercialisation of sport, have led to the regular occur-rence of sport scandals ranging from doping by athletes to bribery of offi cials. 8 When combined, these factors have shaken the foundation of the existing social contract and the concept of ‘ exceptionalism ’ of sport is no longer acceptable: the community ’ s expectation has shifted towards greater accountability of sporting organisations, athletes and sport offi cials. 9

In response, state representative organisations such as the European Commis-sion have indicated that if the sports sector wishes to remain self-regulated and autonomous, then a key condition is good governance in sport. 10 Governance of an organisation has many defi nitions and interpretations. 11 Corporate govern-ance, for instance, has been defi ned as ‘ the system by which companies are directed and controlled ’ . 12 This simple defi nition may be applied in the context of sport organisations and may additionally include ‘ the development and maintenance of practical and ethical self-regulation to achieve diverse objectives such as enforcing the rules of the game, implementing anti-doping policies and disciplining athletes ’ . 13

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209Beyond the Fox and the Hen House

14 Gareth Morgan , Images of Organization ( London , Sage Publications , 1997 ) . 15 Paul R Lawrence and Jay W Lorsch , Organization and Environment : Managing Differentiation and

Integration ( Homewood , IL , Richard D Irwin , 1969 ) 185 – 86 . 16 Ethics Commission, ‘ Sports Movement Agrees on Unifi ed Strategy to Tackle Irregular Betting ’ ,

Olympics.org (24 June 2010) www.olympic.org/news/sports-movement-agrees-on-unifi ed-strategy-to-tackle-irregular-betting/92584 .

17 Independent Commission, ‘ The Independent Commission Report # 1 ’ (Final Report, 9 November 2015) 10, www.wada-ama.org/en/resources/world-anti-doping-program/independent-commission-report-1 .

18 ibid 275. 19 Former US President Harry S Truman is credited with stating that ‘ You don ’ t set a fox to watch

the chickens, just because he has a lot of experience in the hen house ’ : see, eg, Robert H Ferrell , Harry S Truman : A Life ( Columbia , MO , University of Missouri Press , 1996 ) 392 .

In adopting this interpretation of governance, a range of questions arises. What is good governance in sports ? Are the principles of good governance in sport similar to those that apply generally to corporate governance or do the principles of good corporate governance need to be adjusted and adapted to the sport sector ? From the perspective of contingency theory, 14 these questions may be answered by noting that there is not one best design for an institution ’ s governance. Context and actors need to be taken into account when designing the governance of an organisation. 15 Despite this, broad generalisations about governance may still be made in the sport sector and corporate governance may be adapted to suit the needs of these organisations, as all entities are dependent on systems that have to be carefully managed to balance the internal needs and external demands that an organisation may face.

Doping remains the primary threat to sport. 16 Cheating to win through doping has led to extensive and varying legislative, education, testing and research responses from sport and governments alike for more than 50 years. However, these reforms have been ineffective as recent evidence highlights that long-term, systematic and extensive doping has continued to thrive, with the World Anti-Doping Agency (WADA) failing to make a change in the ‘ [d]eeply [r]ooted [c]ulture of [c]heating ’ in sport. 17 These disturbing fi ndings were the result of an investigation conducted by the Independent Commission (IC) at the behest of WADA in December 2014. The IC was tasked with investigating the following allegations made against Russian athletics. There seems to have been:

[N]ot only complete compliance failures, but also institutional failures to deal withdoping or suspected doping in a timely manner. Some of those institutions had bothoperational and monitoring responsibilities pursuant to the Code. They include, forpurposes of this [IC] Report, the All-Russian Athletics Federation (ARAF), the RussianAnti- Doping Agency (RUSADA), the International Association of Athletics Federations(IAAF) and WADA itself. 18

Governments, Olympic committees and sport federations seek to benefi t from the success of their athletes, whether directly through increased sponsorships, broad-casting, memberships and other fi nancial support, or through a sense of shared national success, assertions of superiority, and projected business confi dence. In a system where the ‘ fox is put in charge of guarding the hen house ’ , 19 the foxes

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20 Independent Commission (n 17) 23. The second IC report will be released in 2016. 21 Unless otherwise specifi ed, the 2015 version of the Code is referred to throughout this chapter. 22 Opened for signature 19 October 2015, 2419 UNTS 43649 (entered into force 1 February 2007). 23 Dag Vidar Hanstad , Andy Smith and Ivan Waddington , ‘ The Establishment of the World Anti-

Doping Agency : A Study of the Management of Organizational Change and Unplanned Outcomes ’ ( 2008 ) 43 International Review for the Sociology of Sport 227 .

that profi t from maximising sporting achievements could be tempted to subvert their oversight role and instead use unfair means to maximise these profi ts. In the case of Russian athletics, both the vertical level of oversight through the ARAF, RUSADA and the Moscow WADA-accredited laboratory failed to fulfi l their obli-gations, as did the horizontal oversight role of the IAAF and WADA, leading to the ‘ perfect storm ’ environment for what may end up being hundreds of athletes and complicit offi cials doping over ‘ many years ’ . 20

Unless strong compliance and governance systems are both established and then enforced by all parties entrusted with oversight roles, the ‘ foxes ’ will con-tinue to encourage and perhaps mandate the cheating practices in the ‘ hen house ’ . The ‘ hen house ’ analogy can be seen as sport industry generally, and the elite athlete programmes particularly. Therefore, this chapter explores the govern-ance structures and composition mechanisms that have been used to reduce the risk of doping in sport. As the international anti-doping watchdog, this chapter focuses on WADA ’ s own governance system. WADA is a hybrid public-private entity and good governance is crucial for its existence as governance plays a key role in maintaining WADA ’ s reputation and image, as well as confi dence in the sport sector. Through the World Anti-Doping Program, including the World Anti-Doping Code (hereinafter the Code) 21 and the International Convention against Doping in Sport 2005 (hereinafter the UNESCO Convention), 22 WADA can use either mandatory requirements or otherwise include in its guidelines proposals to enhance the governance of anti-doping organisations. Accord-ingly, this chapter fi rst considers the birth of WADA and the role it plays in the sport sector, and then focuses on the governance of WADA in order to provide recommendations on how to enhance this organisation ’ s internal accountability processes.

WADA

WADA was created in 1999 and plays a key role in ensuring the consistency of anti-doping policies and regulation around the world. 23 In order to fully appreciate the types of accountability required of WADA, it is important to understand the circumstances giving rise to its establishment and the means by which its success is measured.

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24 Christopher S Groleau , ‘ Weird Science : A Look at the World Anti-Doping Agency ’ s Questionable Testing Methods and the Need for Change to Protect International Athletes ’ ( 2009 ) 13 Quinnipiac Health Law Journal 85, 86 .

25 Christopher McKenzie , ‘ The Use of Criminal Justice Mechanisms to Combat Doping in Sport ’ ( 2007 ) Bond University Sports Law e-Journal , http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1003&context=slej .

26 Charlie Francis and Jeff Coplon , Speed Trap : Inside the Biggest Scandal in Olympic History ( New York , St Martin ’ s Press , 1991 ) ; Canada, Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, Report (1990) xviii; John Hoberman , ‘ A Pharmacy on Wheels — The Tour de France Doping Scandal ’ on Meso-RX Steroids ( 15 November 1998 ) https://thinksteroids.com/articles/festina-tour-de-france-doping-scandal .

27 See, eg, ‘ About Us ’ TourDeDoping.com (15 July 2015) http://tourdedoping.com/about.php . 28 Hanstad, Smith and Waddington (n 23) 229 – 31; Vanessa McDermott , The War on Drugs in Sport:

Moral Panics and Organizational Legitimacy . ( New York , Routledge , 2015 ) V57 . 29 Bill Mallon , ‘ The Olympic Bribery Scandal ’ , Journal Of Olympic History , May 2000 , http://library.

la84.org/SportsLibrary/JOH/JOHv8n2/johv8n2f.pdf . 30 See generally Craig Deegan , ‘ The Legitimacy Effect of Social and Environmental Disclosures —

A Theoretical Foundation ’ ( 2002 ) 15 Accounting, Auditing and Accountability Journal 282, 293 . 31 John J MacAloon , ‘ Steroids and the State : Dubin, Melodrama and the Accomplishment of

Innocence ’ ( 1990 ) 2 ( 2 ) Public Culture 41, 50 . 32 Hanstad, Smith and Waddington (n 23) 230.

The Birth of WADA: Why and How ?

The Legitimacy of the IOC in Doubt

WADA ’ s birth was the direct result of a crisis in the legitimacy of the IOC due to the failure of the organisation to curb the doping culture within Olympic sport.

The IOC may be perceived as the ‘ leader of international sporting regulation ’ . 24 However, a number of high-profi le and well-televised sport scandals 25 — most embarrassing for the IOC being Ben Johnson ’ s failed drug test following his world record in the men ’ s 100-metre athletics fi nal at the 1988 Seoul Olympic Games 26 and culminating in what has been termed the 1998 French cycling ‘ Tour de Doping ’ 27 — challenged the legitimacy of the organisation. 28 The IOC ’ s credibility on matters of integrity was further called into question when details relating to the IOC awarding the rights to host the 2002 Olympic Winter Games to Salt Lake City led to widespread condemnation. In exchange for their votes, IOC members were found to have been variously bribed through the provision of medical care for relatives, workplace internships or scholarships at major universities for their children, expensive guns and majorly reduced land deals. 29

The passive approach taken by the IOC when faced with persistent doping problems highlighted that its value system no longer refl ected the values and expectations of the wider community. 30 The IOC ’ s ineffectiveness led national governments to assert their ownership of the doping problem. The international sport sector viewed such involvement as a hijacking of the powers and rights of the civic sports bodies. 31 However, the intervention of the police in the 1998 Tour de France illustrated that governing sport bodies were not properly monitoring the use of performance-enhancing drugs. 32 This weakened the social contract that

95


33 Ivan Waddington and Andy Smith , An Introduction to Drugs in Sport : Addicted to Winning ( Abingdon , Routledge , 2009 ) 190 .

34 ibid 187. 35 Vanessa McDermott , The War on Drugs in Sport: Moral Panics and Organizational Legitimacy .

( New York , Routledge , 2015 ) V57 . 36 Hanstad, Smith and Waddington (n 23) 237 – 38. 37 Norbert Elias , What is Sociology ? ( Stephen Mennell and Grace Morrissey (trans), New York ,

Columbia University Press , 1978 ) (translation of Was ist Soziologie ? (1970)) 81 – 84. 38 See Ben Avison , ‘ IOC President Bach Ripostes to SportAccord President Vizer ’ , Host City

( 20 April 2015 ) www.hostcity.com/event-management-news/ioc-president-bach-ripostes-sportaccord-president-vizer .

39 Hanstad, Smith and Waddington (n 23) 243.

existed at that time between the states and sporting organisations. The IOC, for instance, was heavily criticised for ‘ a lack of internal democracy, accountability and honesty ’ , 33 and its position as the ‘ leader of international sporting regulation ’ was at stake.

In an effort to restore its image, the IOC brought together representatives of governments, intergovernmental and non-governmental organisations, inter-national sports federations (IFs), National Olympic Committees (NOCs) and many elite athletes for the First World Conference on Doping in Sport in 1999. 34 Such a move was reactive and was aimed at counteracting the threat to the legit-imacy of the organisation. 35 For example, the IOC controlled the conference agenda, while the IOC ’ s president chaired the conference and had the discretion to invite who would speak at the conference. However, although the fi rst two hours of the conference glorifi ed the role of the IOC, the organisation under-estimated the threat to its legitimacy. 36 From Elias ’ fi gurational perspective of the situation, one may say that the existing interdependency between players in a particular fi eld results in the application of different game models: 37 a united opposition would have a greater chance in defeating a stronger player than a fractured opposition. 38 In sport, the IOC may be viewed as the strongest player in the fi eld and may defeat people who criticise it if this is done in an uncoordi-nated way; the IOC could deal with each country that criticises its performance separately and consequently can maintain its dominant position in the arena of doping regulation.

However, the IOC failed to note the formation of a coalition of countries that opposed its mandate; this coalition meant that the IOC was no longer facing indi-vidual players. The conference provided a vehicle for this coalition to put forward its criticism of the organisation. This meant that the IOC was now playing simul-taneously against several other players. Even though, individually, the countries were weaker opponents, the fact that they had a united purpose severely weakened the IOC ’ s position. The unifi ed and harmonious criticism they directed towards the organisation meant that the IOC ultimately had to bow to the pressure on it to support the establishment of an independent international new anti-doping watchdog: WADA. 39 It was the only way for the IOC to retain its legitimacy.

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40 WADA, Constitutive Instrument of Foundation of the World Anti-Doping Agency (4 July 2014). 41 Craig Reddie , ‘ President ’ s Welcome Message ’ ( 2015 ) www.wada-ama.org/en/who-we-are/

presidents-welcome-message . 42 This position will be discussed later on in this chapter; see Independent Commission (n 17) 10. 43 WADA , ‘ Regional Offi ces ’ ( 2015 ) www.wada-ama.org/en/contact-us/regional-offi ces . 44 WADA, ‘ Annual Report 2013 ’ , 32, https://wada-main-prod.s3.amazonaws.com/resources/fi les/

wada-2013-annual-report-en.pdf . 45 Kathryn Henne , ‘ WADA, the Promises of Law and the Landscapes of Antidoping Regulation ’

( 2010 ) 33 Political and Legal Anthropology Review 306, 312 . 46 Elias (n 37) 88. 47 Ulrik Wagner , ‘ The World Anti-Doping Agency : Constructing a Hybrid Organisation in

Permanent Stress (Dis)Order ? ’ ( 2009 ) 1 International Journal of Sport Policy and Politics 183, 196 . 48 Henne (n 45) 311.

The Establishment of WADA

WADA was registered as a Swiss private law foundation in November 1999. 40 WADA ’ s President, Sir Craig Reedie, has noted that the organisation ‘ has evolved into a global leader tasked with harmonizing, coordinating and promoting an effective fi ght against doping in sport ’ . 41 However, doubt remains regarding whether WADA has truly achieved such leadership. 42

Partly to avoid any perception of control and infl uence by the IOC, its headquar-ters moved from Lausanne, Switzerland, where the IOC and many international sport federations are based, to Montreal, Canada. To ensure greater geopolitical representation and reach, WADA also operates out of its regional offi ces in Cape Town, South Africa; Tokyo, Japan; Montevideo, Uruguay; and Lausanne. 43

WADA is equally funded by the sport movement and the governments of the world, and accordingly considers itself to be a hybrid public-private entity. 44 While the IOC and WADA may share a ‘ common moral vision for sport and society ’ , 45 the hybrid nature of WADA means there is not one player in control of the organisation and this is said to entrench the independence of the organisa-tion. Instead, an intertwining network of stakeholders is created. However, this also means that WADA ’ s role is more opaque to individual stakeholders as they do not have the ability to directly control the organisation. 46 Further, disagree-ments between the stakeholders and WADA create diffi culties in the manage-ment of the organisation, causing WADA to shift its focus from the anti-doping regulatory regime to solving the stakeholders ’ struggles and disagreements. 47 All these considerations highlight the importance of governance in WADA, where ‘ accounting for and appealing to multiple political and public interests is a core part of WADA ’ s mission ’ . 48

Additionally, while WADA is accountable to a range of stakeholders that have different agendas, half of its budget comes from the sport movement that has a united objective: ensuring the independence of sport. The sport movement once again becomes the stronger player between the different stakeholders. This raises the possibility of WADA being captured. Simply put, capture is the process through which regulated entities end up manipulating the regulators that are supposed to

97


49 For more on capture, see, eg, Paul Sabatier , ‘ Social Movements and Regulatory Agencies : Toward a More Adequate — and Less Pessimistic — Theory of “ Clientele Capture ” ’ ( 1975 ) 6 Policy Sciences 301 ; Michael E Levine and Jennifer L Forrence , ‘ Regulatory Capture, Public Interest, and the Public Agenda : Toward a Synthesis ’ ( 1990 ) 6 Journal of Law, Economics & Organization 167 .

50 Barrie Houlihan , ‘ Civil Rights, Doping Control and the World Anti-Doping Code ’ ( 2004 ) 7 Sport in Society 420, 425 .

51 Wagner (n 47) 195. 52 Paul Marriott-Lloyd , ‘ International Convention against Doping in Sport ’ ( UNESCO Doc No

SHS/2010/PI/H/2 , 2010 ) 3 , http://unesdoc.unesco.org/images/0018/001884/188405e.pdf : ‘ While a large number of sporting organisations signed the Code and ensure its global application through a

control and monitor them. 49 Therefore, there is a risk that WADA ’ s decisions may be infl uenced by the needs and the desire of the sport movement, and, conse-quently, it will fail to detect instances of doping such as those that took place in the case of Russian athletics. This means that the foxes rather than an independent watchdog supervise the hens.

The Code and its Limits

WADA implemented the Code, a key document founding an international anti-doping policy. It aims to harmonise the different anti-doping regimes of various nations and various sports. 50

Tensions between the Stakeholders Regarding the Terms of the Code

The Code aims to achieve a balance between three systems:

— sport: Part 1 of the Code specifi cally deals with doping control, including banned substances, testing, investigation and sanctions;

— politics: Part 3 of the Code outlines the responsibility of the states and Part 4 outlines the way in which the law of each country is to complement this process; and

— science and education: Part 2 of the Code highlights key principles regarding science and education initiatives which WADA supports. 51

These three systems can sometimes be at odds with each other and a loss of confi dence in one system may negatively impact the support of the different stake-holders to the Code. Such losses of confi dence are a blow to WADA ’ s authority and legitimacy, particularly as WADA is dependent on its members to harmonise the anti-doping regime and to monitor anti-doping in sport.

The history of the adoption of the Code highlights this tension. There were two opposing positions at that time: support for the Code by governments, and less support from some sporting organisations. The Code was drafted over several years, beginning in 2001. In 2003, the fi rst version of the Code was fi nalised and this document was tabled at The Second World Conference on Doping in Sport. At the conference, the Copenhagen Declaration on Anti-Doping and Sport 52 was

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series of cascading relationships, it is not legally binding for governments. In fact, governments can-not be direct parties to the Code because of its legal status and that of WADA under whose authority it was elaborated. The Code is a non-governmental document that operates in the realm of private or contractual law and WADA, despite equal governmental involvement in its funding and management, was established as a private foundation. ’

53 UNESCO Convention, opened for signature 19 October 2015, 2419 UNTS 43649 (entered into force 1 February 2007) art 4.

54 ibid art 5. 55 UNESCO, International Convention against Doping in Sport (2015) www.unesco.org/new/en/

social-and-human-sciences/themes/anti-doping/international-convention-against-doping-in-sport . 56 Marriott-Lloyd (n 52) 1 – 3: ‘ The Convention was developed after extensive drafting and consulta-

tion meetings involving representatives from over 95 countries. It was the product of three meetings of an experts group and three intergovernmental meetings between 2004 and 2005. Further, the Fourth International Conference of Ministers and Senior Offi cials Responsible for Physical Education and Sport (MINEPS IV) considered the draft Convention and helped to resolve a number of outstanding issues. ’

57 Wagner (n 47) 196. 58 WADA, World Anti-Doping Code (March 2003) 1, art 10.2 (comment); WADA, World Anti-

Doping Code (1 January 2009) 11, art 10.2 (comment). 59 WADA, ‘ Code Signatories ’ (2015) www.wada-ama.org/en/what-we-do/the-code/code-signatories .

adopted. The Declaration was an offi cial contract between the IOC and differ-ent governments. It allowed these governments to declare their recognition and support for WADA, accept the Code and endorse a process which would lead to the UNESCO Convention. The Convention itself stated that ‘ to coordinate the implementation … State Parties commit themselves to the principles of the Code ’ . 53 To achieve state support, a range of measures are adopted, including ‘ leg-islation, regulation, policies or administrative practices ’ by the signatories to the Convention. 54 The UNESCO Convention was the most successful international convention in the history of United Nations Educational, Scientifi c and Cultural Organization (UNESCO) in terms of the speed of its development and entry into force. 55 It came into effect in 2007. 56

However, some sporting organisations such as FIFA, and athletes gener-ally, resisted the adoption of certain parts of the original Code, especially the introduction of a general two-year ban on athletes involved in doping for a fi rst violation and a lifetime ban if there is a second violation by the same athlete. This resulted in the amendment of the Code in 2009, which led to the removal of the lifetime ban. 57 The 2003 and 2009 versions of the Code both highlight the diffi culty in harmonising sanctions in the sporting arena as it is argued that different sports should attract different considerations when a ban is being considered. 58

This history refl ects the challenges that WADA faces in fi nding a balance between competing interests. Further, WADA ’ s stakeholders range from large politically and fi nancially powerful sports and nations to those that have very small popu-lations or membership bases and challenges to their basic humanitarian needs. Among the Code signatories, 59 there are vastly different cultures, attitudes and approaches to issues such as nationalism and patriotism on one side, and corrup-tion, fraud, nepotism, cronyism and bribery on the other, which directly impact

99


60 See, eg, Transparency International, ‘ Corruption, Perception Index 2014 ’ (2015) www. transparency.org/cpi2014 .

61 Angela J Schneider , ‘ Olympic Reform, Are We There Yet ? ’ ( Paper presented at Bridging Three Centuries: Fifth International Symposium for Olympic Research , International Centre for Olympic Studies, University of Western Ontario , Canada , September 2000 ) 225, 230 , http://library.la84.org/SportsLibrary/ISOR/ISOR2000zb.pdf .

62 WADA, World Anti-Doping Code (1 January 2015) art 10.2. 63 ibid art 10.3. This regime would apply together with any other sanctions that may be imposed

as a result of anti-doping regulation regimes that exist in different countries that are signatories to the Code. Each of the anti-doping rule violations (ADRVs) attracted the same two-year ban under previous versions of the Code, unless no fault or no signifi cant fault was established, or the substance is a specifi ed substance. That is, a refusal to provide a sample is treated the same as testing positive.

64 WADA, World Anti-Doping Code (1 January 2015) art 10.3.3 (comment). 65 ibid art 23.5.4. 66 ibid art 23.6. 67 WADA, World Anti-Doping Code: International Standard for Laboratories (January 2015)

art 4.4.

on WADA ’ s work targeting cheating in sport. 60 These issues refl ect the tensions within the philosophy and ethics of elite sport: sport promotes positive attributes of excellence, joy and health, while encouraging negative traits such as cheating, superiority and bribery.

As Schneider observed, the challenges faced by WADA are:

[E]normous. The agreements required to harmonize the practices of myriad Inter-national Federations and National Government testing programs are very complex.There we [sic] still overlapping jurisdictions, and the consequent turf battles with theIOC Medical Commission. Finally, and most importantly, there is the task of building a genuine relationship of trust with athletes. 61

Weak Deterrence and No Governance

In its current version, the Code seems to have reached a new position regard-ing deterrence. It appears to have struck a compromise between the different stakeholders to raise the ban on athletes who are involved in doping from two to four years. 62 A similar ban will also apply if an athlete fails to provide a sample for doping control to the relevant authority. 63 The Code further creates an ‘ aggravated doping ’ offence for those found to be directly involved or covering up doping violations: these parties are subjected to more severe sanctions than the athletes who test positive for doping. 64 For instance, stakeholders can be declared Code non-compliant in order to motivate them to enhance integrity in sport. 65 WADA may impose internal measures against Code-non-compliant stakeholders such as forfeiture of representation on WADA ’ s committees. 66 In addition, for a laboratory to maintain its accreditation, its National Anti-Doping Organisation and/or NOC must be declared Code compliant by WADA. 67

Further, the Code states that certain stakeholders from the international sport movement have jurisdiction to impose consequences on those who are declared

100


68 WADA, World Anti-Doping Code (1 January 2015) art 23.6. 69 WADA, ‘ Code Compliance ’ (2015) www.wada-ama.org/en/what-we-do/the-code/code- compliance .

cf Independent Commission (n 17) 273. 70 WADA, ‘ Code Compliance ’ (2015) www.wada-ama.org/en/what-we-do/the-code/code-compliance . 71 Marina Nehme, ‘ Latest Changes to the Banning Order Regime: Were the Amendments Really

Needed ? ’ (2013) 31 Company and Securities Law Journal 341. 72 Gennaro F Vito , Jeffrey A Maahs and Ronald M Holmes , Criminology: Theory, Research and Policy

2nd edn ( Burlington , MA , Jones & Bartlett Publishers , 2007 ) 15 . 73 Milton Friedman , Essays in Positive Economics ( Chicago , University of Chicago Press , 1953 )

15, 22, 31 . 74 Geheimsache Doping — Wie Russland seine Sieger macht ( Top-Secret Doping: How Russia Makes

its Winners ) (directed by Hajo Seppelt, ARD Sportchau, 2014). Note that WADA was also not respon-sible for exposing confessed dopers, Lance Armstrong, Marion Jones or the BALCO case (see www.usada.org )

75 McKenzie (n 25).

non-compliant by WADA ’ s Foundation Board. For example, the IOC has man-dated that only Code-compliant sports can be part of the Olympic programme. 68 On 18 November 2015, WADA declared six countries Code non-compliant. 69 A further seven countries have been put on the watchlist and have been given until 18 March 2016 to become fully compliant with the Code. 70

But even with such serious consequences, the deterrence regime has its limits. Assuming that all athletes are rational maximisers of their own welfare, it may be said that the disqualifi cation regime has a low deterrence impact, even though dis-qualifi cation has serious punitive effects, such as the loss of a person ’ s livelihood and reputation. 71 The same may be said of being declared Code non-compliant. After weighing up the costs against the benefi ts of doping, a rational actor might reach the conclusion that doping was not likely to lead to any action by WADA given the low likelihood of conduct being exposed due to the dominant cheating culture in professional sport. 72 A rational actor may therefore choose the action that maximises his or her personal advantage even though that action may breach the regulation. 73 For example, the most recent scandal regarding Russian athletics was not exposed by WADA, but by a German television channel documentary Top Secret Doping: How Russia Makes its Winners . 74 In fact, this scandal highlights a failure in monitoring and supervision on multiple levels.

Arguably, the Code should not only consider sanctions that may be imposed on different parties and ways to investigate non-compliance with the Code, but should also put in place measures to enhance WADA ’ s monitoring and supervi-sion powers, and focus on introducing changes to modify the cheating culture that is prevalent in sport. This may be achieved through a focus on governance, as governance may lead to a change in the sport culture. Despite this reality, the Code itself outlines the key responsibilities of its members and does not address issues of governance in any way. Further, compliance with the Code has been inter-preted very narrowly by WADA. 75 The primary focus of WADA has been ensur-ing that signatories conduct Code-compliant anti-doping education and testing programmes. Therefore, aside from refl ecting basic natural justice requirements

101


76 WADA, World Anti-Doping Code (1 January 2015) art 3. 77 ibid art 20.5. 78 Dag Vidar Hanstad , ‘ Drug Scandal and Organizational Change within the International Ski

Federation : A Figurational Approach ’ ( 2008 ) 8 European Sport Management Quarterly 379, 388 . 79 James Lewis , ‘ The Insider Track : Interview with Mark Beloff ’ [ 2015 ] (February/March) IBA

Global Insight 12, 15. 80 Bradley v Jockey Club [ 2004 ] EWHC 2164 (QB) [37] ; Chambers v British Olympic Association

[ 2008 ] EWHC 2028 (QB) [33] (Mackay J). 81 Schneider (n 62) 228.

stipulating the independence of hearing bodies, 76 the Code does not generally set good governance standards. It only refers to the importance of the independence of sporting organisations, and promotes values of integrity and accountability without further guidance. 77 The lack of consideration of governance issues arguably means that the Code is more reactive than proactive in dealing with doping violation.

The Governance of WADA

Prior to the establishment of WADA, doubt surrounded the effi ciency of the IOC Medical Committee, the committee created by the IOC body to deal with anti-doping issues. For example, following the doping scandal in cross-country skiing during the 2001 Nordic World Ski Championship in Lahti, Finland, the International Ski Federation (FIS) perceived the IOC Medical Committee as a passive organisation in its fi ght and reporting on doping. Some members of the FIS Council even suspected that the Medical Committee was not reporting fi ndings of doping to the relevant sporting organisation. 78

Trust and legitimacy are key to ensuring the success of WADA. Without it, WADA will arguably cease to exist and state intervention in areas of sport anti-doping will be more pronounced. The UK provides an example of a system where courts take active steps to monitor the sport sector. 79 Justice Richards noted that the court ’ s role is to:

[E]nsure that the primary decision-maker has operated within lawful limits … In eachcase the essential concern should be with the lawfulness of the decision taken [by sport-ing organisations and others]: whether the procedure was fair, whether there was anyerror of law, whether any exercise of judgement or discretion fell within the limits opento the decision-maker, and so forth. 80

Accordingly, to avoid further intrusion of the state in sporting affairs, WADA ’ s governance must be beyond reproach. Schneider noted that a ‘ credible anti- doping agency needs to be independent, open to public scrutiny, and accountable ’ . 81 Therefore, the next section will consider WADA ’ s structure and accountability mechanisms.

102


82 Schweizerisches Zivilgesetzbuch (Swiss Civil Code) (Switzerland) 10 December 1907, SR 210, ch 3.

83 John Forster and Nigel KL Pope , The Political Economy of Global Sporting Organisations ( Abingdon , Routledge , 2004 ) 9 .

84 ibid 112. 85 ibid 9. 86 Peter Aucoin and Ralf Heintzman , ‘ The Dialectics of an Accountability for Performance in Public

Management Reform ’ ( 2000 ) 66 International Review of Administrative Sciences 45, 45 . 87 Mark Bovens , ‘ Analysing and Assessing Accountability : A Conceptual Framework ’ ( 2007 )

13 European Law Journal 447, 467 . 88 ibid 448. 89 Schweizerisches Zivilgesetzbuch (Swiss Civil Code) (Switzerland) 10 December 1907, SR 210,

art 83a. 90 ibid art 83b(1).

Requirements under Swiss Law and WADA ’ s Initiatives to Enhance Accountability

As noted previously, WADA is registered as a foundation under Swiss law. Consequently, it must comply with Swiss regulation. However, the Swiss Civil Code, which regulates foundations, is not prescriptive in its regulation towards these organisations. It only sets minimum external accountability requirements that have to be met. 82 The regime is thus appealing for organisations which do not particularly want to be monitored or controlled, providing them with a favour-able environment free of economic and political state intervention. 83 The fl ex-ibility of the Swiss regime has attracted many global sporting organisations to Switzerland. 84 These organisations view the Swiss approach to regulation in a positive light as most consider that accountability is irrelevant to them because they are cultural, global, not-for-profi t and an ‘ apolitical guardian ’ of the sport sector. 85

Swiss Law: A Light-Handed Regulatory Approach

Accountability is a cornerstone of good governance in both public and private organisations. It minimises the abuse and misuse of public authority, provides assurance that the organisational resources are being used properly in accordance with the values of the organisation, and encourages as well as promotes learning to continuously improve the management of the entity. 86

Bovens narrowly defi nes accountability by noting that it is ‘ a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pose judgement, and the actor may face consequences ’ . 87 However, the Swiss Civil Code provides an even narrower defi nition of accountability. This defi nition is focused on the Anglo-Norman origin of the term: accounting and bookkeeping. 88 In fact, the leg-islation requires WADA to maintain its business ledgers 89 and to appoint external auditors. 90 After conducting an audit, the external auditors are required to provide

103


91 ibid art 83c. 92 Micha ë l Mrkonjic, ‘ The Swiss Regulatory Framework and International Sports Organisations ’

in Alm (n 3) 128, citing ‘ History: The Origines [sic] of the Olympic Capital ’ (2015) City of Lausanne, www.lausanne.ch/en/thematiques/sport-et-olympisme/lausanne-capitale-olympique/cio/historique-origines-capitale-olympique.html .

93 ibid. 94 Bundesgesetz ü ber die Bek ä mpfung der Geldw ä scherei und der Terrorismusfi nanzierung im

Finanzsektor (Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector) (Switzerland) 10 October 1997, SR 955.0.

95 Graham Dunbar , ‘ Swiss Law Allows More Scrutiny of Sports Finances ’ , Yahoo! Sports ( 12 December 2014 ) http://sports.yahoo.com/news/swiss-law-allows-more-scrutiny-sports-fi nances-133729114--sow.html .

a copy of their report and all important communications with the foundation to the supervisory authority. 91 Organisations registered as foundations then have the freedom to decide on other aspects of accountability, including the structure of the organisation and issues of transparency.

Towards More Accountability

WADA has adopted the minimal requirements regarding accountability set out by the Swiss legislation. However, more needs to be done to enhance the governance of the organisation.

The Threat to the Social Contract

A social contract arguably exists between Switzerland and the sporting entities registered under its laws from the minimal regulation imposed under Swiss law on sport organisations. De Coubertin noted that: ‘ Olympism will fi nd in the inde-pendent and proud atmosphere that we breathe in Lausanne, the guarantee of freedom that it needs to progress. ’ 92 However, the existence of this social contract is currently frayed and is in danger of unravelling quickly due to the sports scan-dals that have occurred over the last two decades. The reality is that suspicion and threat now exists between sporting organisations and the Swiss Government, with sporting organisations expressing a desire to leave Switzerland if the Swiss authorities do not comply with their wishes. 93

Despite these threats, the recent FIFA bribery scandal has once again turned attention to the social contract, as the Swiss Parliament made changes to its money laundering law, allowing additional scrutiny of bank accounts held by sporting bodies and their leaders. 94 In view of this development, the ongoing behaviour of sports entities and their leaders will impact on any future Swiss reforms in the area of governance and accountability. 95 Until this happens, however, Swiss law is confi ned to the minimal level of accountability for foundations such as WADA. Nevertheless, the threat of more regulation does provide an incentive for these organisations to enhance their governance systems and accountability.

104


96 Ngaire Woods , ‘ Good Governance in International Organizations ’ ( 1999 ) 5 Global Governance 39, 44 .

97 Organisation for Economic Co-operation and Development, G20/OECD Principles of Corpo-rate Governance (30 November 2015) 42.

98 Jean-Loup Chappelet and Michae ë l Mrkonjic , ‘ Basic Indicators for Better Governance in Inter-national Sport (BIBGIS): An Assessment Tool for International Sport Governing Bodies ’ ( Working Paper 1/2013, Institut de Hautes Etudes en Administration Publique , January 2013 ) 9 .

99 WADA , ‘ Annual Reports ’ ( 2015 ) www.wada-ama.org/en/resources/fi nance/annual-report . 100 European Union Expert Group on Good Governance , ‘ EU Work Plan for Sport 2011 – 2014 :

Deliverable 2 — Principles of Good Governance in Sport ’ ( September 2013 ) 13 , http://ec.europa.eu/sport/library/policy_documents/xg-gg-201307-dlvrbl2-sept2013.pdf .

101 Australian Institute of Company Directors , ‘ Principle 1 : Roles and Responsibilities ’ ( 2015 ) www.companydirectors.com.au/director-resource-centre/not-for-profi t/good-governance-principles-and-guidance-for-nfp-organisations/principle-1-roles-and-responsibilities .

Transparency and Communication

Key elements of good governance and accountability are transparency and communication. 96 These elements are not only relevant for sport governance but also corporate governance where a range of corporate scandals are linked to a lack or limited disclosure of the full picture. 97 Transparency can relate to organisa-tional structures as well as reporting requirements. 98 WADA, since its inception, has taken some positive steps towards creating a transparent system in both these areas.

For example, WADA publishes on its website information regarding its vision, its strategic plans, its organisational structure, the minutes of its meetings, the Code and implementation policies, as well as information regarding doping inves-tigations. The majority of information regarding WADA, including its fi nancial situation, is published every year in its annual report. 99 Following the recommen-dation of the European Union Expert Group on Good Governance, 100 WADA ’ s website is also used for consultation with its stakeholders and members of the public. However, many of submissions and outcomes relating to its previous con-sultations, such as the submissions leading to the amendments to the Code, are no longer available to the public. This may be viewed as a form of censorship and may cast doubt on the image of transparency and independence that WADA is attempting to send to the public.

More Accountability Needed

All the above initiatives enhance organisational and reporting transparency, and set an example for other entities to achieve such transparency in a cost-effective way through the use of its website. However, WADA ’ s system is not perfect and could be improved. For example, there is minimal information regarding the role of the Foundation Board and the Executive Committee on its website. This is in contrast with one of the key principles of good governance: organisations should clearly state the role of individual directors, their responsibility, organi-sational expertise and role of the board in general. 101 None of this information

105


102 In the sense that WADA has been established to supervise the integrity of the sports industry insofar as it relates to doping. See also the Independent Commission (n 17) 31.

103 WADA , ‘ Funding by Governments ’ ( 2015 ) www.wada-ama.org/en/funding-by-governments . 104 Lewis (n 80) 15. 105 Kathryn Henne , ‘ Reforming Global Sport : Hybridity and the Challenges of Pursuing Transpar-

ency ’ ( 2015 ) 37 Law & Policy 324, 338 . ‘ Recent survey fi ndings (which WADA initially withheld from publication) indicate much higher rates of doping (29 – 45 percent), at least among track-and-fi eld athletes (Rohan 2013). ’ Noting that in 2011 WADA ’ s David Howman was acknowledged that the fi gure was in the viscinity of 10 % , ( www.telegraph.co.uk/sport/olympics/london-2012/8710041/London-2012-Olympics-one-in-10-athletes-are-drugs-cheats-says-anti-doping-chief-executive.html ) and by 2015 had increased this estimation to 20 % ( www.heraldscotland.com/sport/13195498.WADA_S_tougher_sentencing_for_drugs_cheats_must_be_applauded_but_it_is_not_enough_ simply_to_increase_the_length_of_bans/ )

106 Independent Commission (n 17) 45 – 48. 107 WADA , ‘ Model Rules, Guidelines and Protocols ’ ( 2015 ) www.wada-ama.org/en/model-rules-

guidelines-and-protocols .

is available to the public in the case of WADA: while a list of members of the Foundation Board and the Executive Committee is disclosed, the organisation does not publish on its website biographical information and contact information regarding its management; it merely provides the name, position and country of the people on its boards and committees. The provision of additional informa-tion in that regard is benefi cial to highlight the skills of each of the members of the board. It is time for WADA to adopt a more transparent approach regarding its management structure by disclosing the role of its board and management, and how their performance is monitored and evaluated. All this may start chang-ing the attitude and perception that stakeholders have towards this organisation; they currently perceive WADA as a service provider rather than a regulator. 102 Additionally, more information could be provided regarding the percentages paid by each government. Currently, the information released relates to percentages paid by continents to WADA. 103

Further, even more concerning is the fact that the organisation has not always been forthcoming with its fi ndings. For instance, as FIFA did recently regarding its bribery scandal, 104 WADA initially withheld from publication research that ques-tioned the regime ’ s effectiveness. The research highlighted that although two per cent of samples taken from athletes yield positive tests for doping, the rate of dop-ing is much higher than this fi gure. 105 This again highlights the failure of WADA to tackle the doping problem. The 2015 IC ’ s report regarding its investigation of Russian athletics also refl ects this reality: it found that WADA had failed to ensure the compliance of countries with the Code. 106

Setting Clear Guidelines to Enhance Governance

Currently, WADA has issued model rules for different stakeholders in order to assist them in drafting anti-doping rules that are in line with the Code. 107 This is a good attempt to harmonise the regulation of anti-doping. However, these guidelines do not seriously consider any governance issues that may arise from

106


108 Independent Commission (n 17) 47, 322 (recommendation 12). 109 Schweizerisches Zivilgesetzbuch (Swiss Civil Code) (Switzerland) 10 December 1907, SR 210,

art 83. 110 WADA (n 40) art 7.

doping. Further, even though the IC Report on the Russian athletics scandal found that there is a failure at different levels to ensure the integrity of sport, most of its recommendations were reactive rather than proactive in nature. The Report failed to provide solutions to tackle the cheating culture within sport.

Instead, the recommendations were focused towards the smaller rather than the bigger issue attached to the cheating culture. The focus was once again on deter-rence and imposing sanctions on offending parties. A few of the recommendations required the contravening organisations to introduce compliance programmes to ensure they become Code compliant. But even then, the recommendations did not provide guidance on how to achieve this and how a compliance programme might lead to a change in the culture of the offending organisation. Further, very little guidance is available in the IC Report on how compliance will be monitored. The only recommendation in the Report regarding this is that WADA ’ s compli-ance working group should report to the Foundation Board on the way in which WADA protects clean athletes. 108 There is an assumption that this will monitor the conduct of the contraveners and the steps they have put in place to enhance their organisations. For these reasons, it is important for WADA to issue addi-tional guidelines that specifi cally target the issue of governance. However, before doing that, WADA ’ s own management structure needs to be revamped to enhance its own accountability mechanisms.

The Structure of WADA and the Need for Improvement

The Swiss Civil Code leaves it up to an individual foundation to determine the structure of its governing bodies and constituent document, called its constitutive instrument. 109 The structure of WADA refl ects the fact that the organisation is equally funded by governments and the sport movement. 110 For instance, equal numbers of government and Olympic Movement representatives sit on WADA ’ s Foundation Board, its decision-making body, and are responsible for policy- making through WADA ’ s Executive Committee. This structure raises concerns about the internal accountability of the organisation as there are no guidelines regarding the way in which different committees are held accountable.

This is especially problematic as WADA does not have shareholders. In a company, shareholders have an interest in monitoring their investments and, as a group, management owes them a range of duties. In the case of WADA, each stakeholder has a different agenda. The stakeholders may hold management accountable through the appointment of their representatives on the Founda-tion Board and, more drastically, by withdrawing their funding and support of

107


111 The focus tends to be on WADA ’ s compliance regime. See, eg, Arnout Geeraert, ‘ Compliance Systems: WADA ’ in Alm (n 3); Barrie Houlihan , ‘ Managing Compliance in International Anti-doping Policy : The World Anti-Doping Code ’ ( 2002 ) 2 European Sport Management Quarterly 188 . See also Nicolas Eber , ‘ Credibility and Independence of the World Anti-Doping Agency : A Barro-Gordon-Type Approach to Antidoping Policy ’ ( 2002 ) 3 Journal of Sports Economics 90 ; Lorenzo Casini , ‘ Global Hybrid Public-Private Bodies : The World Anti-Doping Agency (WADA) ’ ( 2009 ) 6 International Organizations Law Review 421 .

112 WADA (n 40) art 6. 113 ibid art 7. 114 WADA, ‘ Governance ’ (2015) www.wada-ama.org/en/who-we-are/governance . 115 WADA (n 40) art 8. 116 WADA, ‘ Executive Committee ’ (2015) www.wada-ama.org/en/who-we-are/governance/executive-

committee .

WADA. The latter option would mean that WADA would cease to exist, having lost its legitimacy. WADA ’ s management does not owe any particular duty to its stakeholders.

The issue of WADA ’ s internal accountability to date has attracted little atten-tion from commentators and academics. While there is emphasis on the need for the independence of bodies having anti-doping responsibility from organisa-tions responsible for developing elite-level talent, refl ected in the wording of the Code, the so-called ‘ fox guarding the hen house ’ argument, there has been very little academic analysis or discussion on the compositional or structural govern-ance of WADA, or other organisations responsible for implementing the WADA programme at the highest levels. 111 A look at WADA ’ s structure raises a range of concerns due to the lack of transparency surrounding the way in which the organ-isation is run. However, a quick review of WADA ’ s decision-making structure also suggests that the organisation may wish to adopt a two-tier board approach to enhance its governance.

The Management Structure of WADA

The Foundation Board is WADA ’ s supreme decision-making body. It can have up to 40 members, up to 18 of whom are appointed by the Olympic Movement, with another maximum of 18 appointed by public authorities, and four appointed jointly by these two groups. 112 To ensure equal partnership between its funders, the position of the chairman alternates between the Olympic Movement and pub-lic authorities. Similarly, the position of vice chairman is nominated by a public authority if the chairman is a person nominated by the Olympic Movement and vice versa. 113 WADA is currently composed of a 38-member Foundation Board, which is comprised equally of IOC appointees 114 and appointees from national governments or other public authorities. The Foundation Board is required to meet at least once a year. 115

The Foundation Board delegates the actual management and running of the agency to the 12-member Executive Committee. 116 The Executive Committee is WADA ’ s ultimate policy-making body. It is also composed equally of representatives from the Olympic Movement and governments.

108


117 A culture which has in large part been inherited from the IOC, IFs and other international organisations.

118 Mark Bovens , The Quest for Responsibility : Accountability and Citizenship in Complex Organisations ( Cambridge , Cambridge University Press , 1998 ) 74 .

119 Healey (n 13) 48. 120 HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [ 1957 ] 1 QB 159 , 172 (Lord Denning);

Lennards ’ Carrying Co Ltd v Asiatic Petroleum Co Ltd [ 1915 ] AC 705 , 713 (Lord Haldane). 121 See Thomas J Schoenbaum and Joachim Lieser , ‘ Reform of the Structure of the American

Corporation : The “ Two-Tier ” Board Model ’ ( 1973 ) 62 Kentucky Law Journal 91 . 122 WADA (n 40) art 10.

WADA has a number of other committees, such as the Athlete, Education, Finance & Administration, and Health, Medical & Research Committees, which have an advisory function and provide guidance to WADA ’ s programmes. How-ever, an issue regarding transparency appears once again at this level as vacancies in WADA ’ s senior management positions, with the exception of the Director-General position, are not advertised and are shrouded in secrecy. Today, such an approach is often regarded as representative of cronyism, which refl ects badly on WADA ’ s culture. 117 A more transparent mechanism is needed to make the process of appointment more in line with normal business practices and to ensure the diversity of its board.

Should WADA Implement a Two-Tier Board Approach ?

Unlike corporations which have shareholders or members, WADA does not have members because it is a foundation. Accordingly, as noted previously, the organi-sation has one less decision-making organ than a company, which negatively impacts on the accountability of the organisation. However, even though this is a fundamental difference with the structure of a corporation, parallels can still be drawn regarding the management of these two entities, as both have a hierarchical scheme of control.

In a corporation, the board of directors provides a ‘ hierarchical scheme of accountability ’ 118 and plays a key role in ensuring good corporate governance in an organisation. 119 The board of directors is the ‘ directing mind and will of the cor-poration ’ . 120 Within WADA, the Foundation Board and the Executive Committee are the decision-makers, and are in charge of the management of the organisa-tion. The WADA hierarchy is built around a chain of command where a range of responsibilities are delegated to committees, as noted previously.

The Foundation Board and the Executive Committee are the two organs in charge of management of the organisation. This structure is reminiscent of the German two-tier system of corporate governance, which is based on the establishment of two boards in a corporation: the Management Board is in charge of the management of the company and the Supervisory Board, constituted from a range of stakeholders, is responsible for monitoring the Management Board. 121 As with WADA ’ s Foundation Board electing its Executive Committee, 122

109


123 Schoenbaum and Lieser (n 122) 96. 124 Jean J du Plessis et al, German Corporate Governance in International and European Context

( New York , Springer , 2007 ) 11 . 125 Grant T Savage et al, ‘ Governance of Integrated Delivery Systems/Networks : A Stakeholder

Approach ’ ( 1997 ) 22 ( 1 ) Health Care Management Review 7 . 126 WADA (n 40) art 8. 127 WADA , ‘ Foundation Board Meeting Minutes ’ ( 2015 ) www.wada-ama.org/en/resources/

governance/foundation-board-meeting-minutes . 128 See, eg, John Carver , ‘ Remaking Governance : The Creator of “ Policy Governance ” Challenges

School Boards to Change ’ ( 2000 ) 187 ( 3 ) American School Board Journal 26 .

the Supervisory Board elects the Management Board. 123 The two-tier system pro-vides a relationship between management and stakeholders as the stakeholders, through their representatives on the Board, have a say in the strategic management of the organisation. 124 In the case of WADA, this model may be viewed positively as the organisation is dependent on its stakeholders to survive and consequently involving them in the management creates an additional accountability layer for the organisation, and enhances its legitimacy.

The two-tier structure has a number of advantages, including the fact that the smaller size of the Executive Committee and the Management Board, when respectively compared with the current potential size of the Foundation Board or the Supervisory Board, allows quick and effi cient decision-making. 125 The divi-sion of monitoring and management between two boards also provides a better accountability regime than in instances where the monitoring and management functions are intertwined.

However, the two-tier model also has its detractors. One of the criticisms directed at the two-tier model is the fact that the Supervisory Board is ineffective. It is argued that the Supervisory Board cannot fulfi l its role of monitoring and overseeing the Management Board if it only meets a few times a year. This same criticism can be applied to the current Foundation Board, which only needs to meet once a year. 126 A review of the meeting minutes for the Foundation Board highlights that since its inception, the Board has only met a maximum of twice a year. 127 This is of concern as the Foundation Board is not only charged with monitoring its Executive Committee but also of supervising compliance of the stakeholders with the Code. Further, the main source of information about the Foundation Board comes from its Executive Committee, which also limits its monitoring power. For these reasons, the Foundation Board must take a proactive role in monitoring its Executive Committee to ensure that it holds the Executive Committee members accountable for their conduct.

Managing Confl ict

Additionally, the involvement of stakeholders in the strategic management of WADA may raise confl ict of interest issues, as the stakeholders have different interests and for this reason their views of the organisation may vary. 128 A dominant sport movement, for instance, may push towards more self- regulation

110


129 Heribert Hirte , ‘ The Two-Tier System in Italy and Germany ’ ( Paper presented at the Seminar on Comparative Corporate Law, University of Hamburg , 2007 ) 12 .

130 Lesley Ferkins and David Shilbury , ‘ Developing Board Strategic Capabilities in Sport Organisa-tions : The National-Regional Governing Relationship ’ ( 2010 ) 13 Sport Management Review 235, 235 .

131 Such as required by the Australian Olympic Committee for all Australian Olympic team members and national sport organisations, including board members, staff and athletes: Australian Olympic Committee, ‘ Anti-doping ’ (2015) http://corporate.olympics.com.au/athlete-hub/anti- doping ; Australian Olympic Committee, ‘ Notes: Statutory Declaration Regarding Anti-Doping Matters ’ (February 2013) http://corporate.olympics.com.au/fi les/dmfi le/AOCStatutoryDeclaration-NotesSampleStatDec.pdf .

132 See, eg, David Shilbury , ‘ Examining Board Member Roles, Functions and Infl uence : A Study of Victorian Sporting Organisations ’ ( 2001 ) 2 International Journal of Sport Management 253 .

of the sporting system, which may diminish the role that WADA plays in the area of doping. Systems need to be established within WADA to manage any confl ict that may affect the decision-making process and the ability of the Foundation Board to independently monitor the Executive Committee. 129 Accordingly, WADA must develop guidelines on the management of confl ict of interests within the Board. Anything less may result in the capture of its Foundation Board. It is crucial to consider such risk as the Board is already infl uenced by WADA ’ s stakeholders who are behind the appointment of its members.

The Composition of the Foundation Board and the Executive Committee

WADA plays a key role in ensuring the integrity of sport in the context of anti-doping. Appropriate governance and transparency are paramount to ensure the legitimacy of the organisation, particularly during this period of heightened scrutiny of sporting organisations and their managers. 130 Stakeholders need to be sure that WADA has the necessary resources and skills to achieve its aims and objectives. Despite this, as noted previously, the appointment of the members of its Foundation Board and Executive Committee is an opaque process.

Further, there is no documented requirement that the nominees satisfy a ‘ good character ’ test, or even to make a declaration of their commitment to anti- doping. 131 This is surprising, as it is key for the management of WADA to be beyond reproach in its stance against doping, as a scandal associated with mem-bers of its management would negatively impact the reputation of the organi-sation. Additionally, WADA provides no information about the values, skills, experience or attitudes of any of the Foundation Board members. WADA ’ s website and publications do not provide bibliographies of the members of its Founda-tion Board or members of its Executive Committee. A range of empirical evidence suggests that the strategic capabilities of a sport organisation are linked to the ability of its management. 132 In view of this, it is important for WADA to seriously consider the expectations of the global community. If we consider the Foundation Board as a supervisory board, then best practice would require the Board to be composed of people who have the knowledge, ability and experience needed

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to properly complete the task. 133 Transparency is paramount to ensure that the Foundation Board members fulfi l these requirements.

Further, one key difference between the two-tier model and the current WADA structure is that the WADA structure does not really have an independent Founda-tion Board. One of the key strengths of the two-tier model is that the Supervisory Board has an independent view separate from the perspective of management, since there is no overlap between the two boards. 134 In the case of WADA, the majority of the 12 members of the Executive Committee are chosen from the Foundation Board members. 135 To implement a proper monitoring system and enhance the accountability of WADA, the Executive Committee should be formed from a majority of independent managers.

The process of appointing managers should be transparent and based on spe-cifi c advertised criteria. It is crucial to remember that corporations, which are recognised as good corporate citizens, transparently demonstrate how board members are selected and how their performance is assessed. 136 This is especially important as there appears to be a great cultural shift in modern corporations and society ’ s expectation regarding the management of organisations in general. Sleeping directorship is no longer the standard. It is time for the governance of sporting organisations to match standard business practices: managers in WADA should not have an expectation that they can maintain their position of power and infl uence without accountability. 137

Lastly, gender diversity is also now considered an important feature of direc-tor selection. Diversity of board members may improve the performance of an organisation as it provides the board with new insights and perspectives. 138 There is mounting evidence in the corporate world 139 and in anti-corruption research 140

133 Weil, Gotshal & Manges LLP , ‘ International Comparison of Selected Corporate Governance Guide-lines and Codes of Best Practice : United States, United Kingdom, France, Germany, OECD, Netherlands, Norway, Switzerland, Australia, Brazil, China, Hong Kong, India, Russia, United Arab Emirates ’ ( June 2014 ) 25 , www.lexology.com/library/detail.aspx?g=701a6be8-9c7f-462b-a571-52eb60e0b1f5 .

134 Gregory F Maassen and Frans AJ van den Bosch , ‘ On the Supposed Independence of Two-Tier Boards : Formal Structure and Reality in the Netherlands ’ ( 1999 ) 7 Corporate Governance : An Inter-national Review 31, 34 ; Carsten Jungmann , ‘ The Effectiveness of Corporate Governance in One-Tier and Two-Tier Board Systems — Evidence from the UK and Germany ’ ( 2006 ) 3 European Company and Financial Law Review 426, 452 .

135 WADA (n 40) art 11. 136 See, eg, BHP Billiton Ltd, ‘ Annual Report 2011 ’ (21 September 2011) 117 – 24, www.bhpbilliton.

com/~/media/bhp/documents/investors/reports/2011/bhpbillitonannualreport2011.pdf?la=en . 137 See also Saul Fridman , ‘ Confl ict of Interest, Accountability and Corporate Governance : The Case

of the IOC and SOCOG ’ ( 1999 ) 22 University of New South Wales Law Journal 781 . 138 Julie I Siciliano , ‘ The Relationship of Board Member Diversity to Organizational Performance ’

( 1996 ) 15 Journal of Business Ethics 1313 . 139 See, eg, Nicholas van der Walt and Coral Ingley , ‘ Board Dynamics and the Infl uence of Profes-

sional Background, Gender and Ethnic Diversity of Directors ’ ( 2003 ) 11 Corporate Governance : An International Review 218 ; Winifried Ruigrok , Simon Peck and Sabrina Tacheva , ‘ National and Gender Diversity on Swiss Corporate Boards ’ ( 2007 ) 15 Corporate Governance : An International Review 546 .

140 Transparency International, ‘ Gender, Equality and Corruption: What are the Linkages ? ’ (Policy Brief No 01/2014, 7 April 2014).

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that leadership diversity, and gender equity in particular, is a risk management tool that could positively impact on integrity outcomes in sport. 141 Requiring sporting organisations to report on the gender split of their executive, senior managers and coaching, high-performance and offi ciating staff also promotes transparency. 142

However, social psychological studies on hiring practices consistently demon-strate that applicants that come from a similar background to the hirer have a greater chance of receiving a job offer than a person coming from a different background. 143 Given the international position of WADA, this bias is less likely and the board is culturally diverse. However, gender diversity on its Foundation Board and its Executive Committee should be improved as currently the mem-bership of women on these organs is respectively 21 per cent and 25 per cent. Currently, some stakeholders promote gender equality in their appointments, while others are male-dominated. Given the relationship between WADA and UNESCO, and that the key priorities for UNESCO include gender equity, 144 it is important for WADA to refl ect these priorities. At a practical level, not only because women make up half the world ’ s population, but it is important because women make up a signifi cant proportion of sports participants. It could, for example, include requirements that governments and members of the Olympic Movement nominate equal numbers of female and male representatives to the Foundation Board.

In summary, the appointment of members to the Foundation Board and the Executive Committee should be transparent, and should meet the governance expectations of the international community. Vacant positions for the Founda-tion Board and the Executive Committee should be advertised using specifi c selection criteria. The appointment of board members should be made on merit

141 The change in Swiss corporate law recommending greater intervention and accountability is timely, given the FIFA scandal. The draft consultation period ended on 15 March 2015. For an over-view of the initiatives proposed in the preliminary draft, see, eg, Daniel Daeniker and Daniel Hasler , ‘ Corporate Law Reform in Switzerland ’ Who ’ s Who Legal ( June 2015 ) http://whoswholegal.com/news/features/article/32338/corporate-law-reform-switzerland . The initiatives included encouraging gender diversity: ‘ The Draft proposal aims to encourage gender diversity in larger listed companies. After a fi ve-year transition period, each company is expected to have both genders represented by at least 30 per cent in its board and in its executive management. If a company fails to reach these targets, it shall explain the reasons for the underrepresentation and the efforts it takes to further promote gender diversity ( “ comply or explain ” ). ’

142 At the international level, more detail can be found at Sydney Scorecard , ‘ Global Scoreboard ’ ( 2015 ) www.sydneyscoreboard.com/global-scoreboard . See also Women on Boards , ‘ Gender Balance in Global Sport Report: Females Second Class Citizens in Sport ’ ( Press Release , 7 July 2014 ) www.womenonboards.org.au/news/2014/media140707-sportreport.htm . In Australia, the Australian Sports Commission has a 40 per cent ‘ quota ’ for women on national sport organisation boards: Australian Sports Commission, ‘ Mandatory Sports Governance Principles ’ (June 2015) 5 [2.6].

143 James D Westphal and Edward J Zajac , ‘ Who Shall Govern ? CEO/Board Power, Demographic Similarity, and New Director Selection ’ ( 1995 ) 40 Administrative Science Quarterly 60, 61 .

144 UNESCO, UNESCO Priority Gender Equality Action Plan — 2014 – 2021 (UNESCO Doc No 37 C/ $ -C/5-Compl. 1, 2014) http://unesdoc.unesco.org/images/0022/002272/227222e.pdf .

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against objective criteria and with due regard to the benefi ts of cultural and gender diversity. 145

Duration of Appointment

While Foundation Board members are appointed for three years, 146 the appoint-ment of the members of the Executive Committee is for renewable one-year periods. 147 This coincides with the recommended duration of the Swiss Code of Best Practice for Corporate Governance. 148 This limited duration may be viewed as a way to strengthen the accountability of the Executive Committee to the Foundation Board. 149 However, arguably this is too short a period for a range of reasons.

First, a short term weakens the position of the Executive Committee and may lead to short-term planning rather than a focus on long-term plans for WADA. 150 Second, board continuity may be affected, as the Executive Committee may be at the mercy of political appointments by stakeholders at the level of the Foundation Board. Valuable knowledge may be lost if there is a quick turnover of the Executive Committee. 151 Due to the political motivations that different representatives in the Foundation Board may have, WADA should ensure that any confl ict of interest is managed and does not impact on the appointment of the Executive Committee, which, as noted previously, should be independent from the Foundation Board. One way to manage the confl ict is for the Executive Committee to have a longer term than one year.

In summary, the Executive Committee should be able to put forward and execute its strategies without its members having to justify their appointment on an annual basis. Currently, the Foundation Board annually reviews the perfor-mance of the Executive Committee through its monitoring and supervisory role. A renewable term of three years (or four to refl ect the Olympic cycles) up to a maximum of ten years would be desirable as it would allow the Foundation Board

145 See, eg, Financial Reporting Council , ‘ The UK Corporate Governance Code ’ ( September 2014 ) 11 , www.frc.org.uk/Our-Work/Publications/Corporate-Governance/UK-Corporate-Governance-Code-2014.pdf .

146 WADA (n 40) art 7. 147 ibid art 11. 148 Economiesuisse, Swiss Code of Best Practice for Corporate Governance (28 August 2014)

art 13. This is also a mandatory rule for listed corporations in Switzerland: Verordnung gegen u ë ber-ma ë ssige Vergu ë tungen bei bo ë rsenkotierten Aktiengesellschaften (Ordinance against Excessive Com-pensation in Listed Corporations) (Switzerland)J e generally dation ’ (2002) 15(rganizational Change and Unplanned Outcomes 20 November 2013, SR 221.331, art 3.

149 Economiesuisse, Swiss Code of Best Practice for Corporate Governance (28 August 2014) art 13. 150 Australian Institute of Company Directors, ‘ Principle 2: Board Composition ’ (2015) www.

companydirectors.com.au/director-resource-centre/not-for-profit/good-governance-principles-and-guidance-for-nfp-organisations/principle-2-board-composition .

151 Urs P Gnos , Jan H Hoffman and Alexander Nikitine , ‘ Adjustments to the Swiss Corporate Governance Framework ’ ( 2014 ) 36 Comparative Law Yearbook of International Business 136, 147 .

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to develop a medium-term succession plan that allows for a balance of experience and skills in the members of WADA ’ s executive committee. 152

Conclusion

To ensure its integrity, WADA should not only promote the importance of independence and accountability of sporting organisations but should also lead by example by implementing key changes that ensure that these two values are embedded within the organisation. One way to achieve this is for WADA to focus on its internal governance.

Key areas for enhancement are the transparency of communication and the board structure. Clear communication of WADA ’ s structure and reporting is cru-cial in view of the fact that WADA is accountable to a range of stakeholders that come from different backgrounds and have different agendas. Transparency and reporting on WADA ’ s operations would solidify the legitimacy of the organisation and highlight the steps that it is taking to improve its governance.

Additionally, changing its management structure is important to improve the organisation ’ s internal governance. Adopting the two-tier board approach, which is common in countries such as Germany, China and Japan, may positively affect its management, as it will create an independent board that can monitor the con-duct of the executive management of the organisation. The proposed changes in this chapter may not stop the fox from guarding the hen house, but may lead to a change in the culture of WADA and result in a more proactive regulation of doping. It is a move towards the right direction.

152 Australian Sports Commission, ‘ Mandatory Sports Governance Principles ’ , (June 2015), 4 [2.1], www.ausport.gov.au/__data/assets/pdf_file/0003/531165/Mandatory_Sports_Governance_Principles_FINAL.pdf ; Mauritius Institute of Directors, ‘ Best Practice Guidelines for the Appointment of Directors ’ (Directions Forum, 2012) 6 [2.6.2], www.afcgn.org/wp-content/uploads/2013/11/Best- Practice-Guidelines-for-the-Appointment-of-Directors.pdf .

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Title: Gender Equality Achieved Through Love: promoting an Ethics of Care [EoC] Approach in Football (FFA)

Unpublished work: Submitted to the SMAANZ (Sports Management Association of Australia and New Zealand) 2019 Best Conference Paper Award on 30 June 2019

Abstract: The Ethics of Care [EoC] approach focuses on creating greater empathy, mutual respect, justice, equality, fairness, trust, solidarity and responsibility for those marginalised and more vulnerable in the community. As sport has traditionally been developed by and for men (Hargreaves 2002), and women have been excluded or restricted in their freedom to participate, then women can be considered to be ‘marginalised’ and ‘vulnerable’ in this context. Where people in positions of influence and power are the beneficiaries of a system established and perpetuating historical and/or current inequities (racism, sexism, colonialism, slavery etc), as is the case for sports organisations, then an EoC approach imposes a higher duty on those beneficiaries to be inclusive and care for members of the community who have been excluded from decision-making positions in their sports. In football, the legacy of exclusion, and implicit and/or conscious bias, remains, with women largely absent from decision-making and leadership roles. This professional practice research examines the process by which gender equality can be achieved through governance reform.

As recognised by the International Olympic Committee (IOC 2018) and the international federation for football (FIFA 2016), women, and women’s sport, therefore requires, not just equal treatment, but greater investment in resources to counter historical inequalities (FIFA Governance 2018). FIFA requires that all member federations, including the Football Federation of Australia (FFA), adopt policies reflecting: “representative democracy taking into account the importance of gender equality in football” (Article 15(j), FIFA 2016). With no women on the FFA Congress, only one on the FFA Board and very few women in any of the State /Territory bodies meant the FFA was in breach of both the FIFA requirement and the Sport Australia Mandatory Sports Governance Principles.

After “months of exhaustive and exasperating deliberations” (Reid 2018), instead of replacing the FFA Board with a ‘normalisation committee’ as threatened, FIFA gave the FFA a final opportunity to comply through establishing a Congress Review Working Group (CRWG). The all-male CRWG appointed a female Chair, and consulted with a range of stakeholders, including Women Onside [WO]. The author is a member of WO, and their mandate is to promote the women’s game, and to increase the number of women holding decision-making positions throughout the football eco-system (Women Onside 2017). WO promoted an EoC approach in highlighting best practice examples from around the world and in different industries. In an unprecedented success, several of the WO recommendations were accepted by the CRWG, and ultimately by the FFA Congress: the 40:40:20 principle was adopted throughout, the ‘pie’, or Congress, was expanded to include a Women’s Council, and “the custodian of Australia’s women’s football journey” (Edgley 2018), Heather Reid, was voted in as Deputy Chair in a landslide victory. Ultimately, love overcame inequality. It is hoped that love can help the FFA to stay the course.

Keywords: Sport Governance; Gender Equality; Diversity; Inclusion; Integrity; Football

PUBLICATION #3

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Introduction In 2016, sports journalist Gideon Haigh compared David Williamson’s famous 1977 play,

The Club, with sports governance in Australia today. Haigh quotes an unnamed “senior

manager at a big sport”, who observed: “You look at these boards and committees, and it’s

always the same set of white male faces, from the same schools, the same universities, the

same metropolitan circles. Where is the cultural diversity, the regional diversity, the

educational and social diversity?” (Haigh 2016 p9). Haigh notes that: “the irony is that every

sport purports to be committed to the inclusion of groups formerly excluded – which

basically means everyone not a white male. Yet you could remake The Club now, and its all-

male cast would not be immediately incongruous.” (Haigh 2016 p9). Although more

ethnically diverse than ‘traditional’ Anglo-Australian sports (Warren et al 2002; Mersiades

2017(b)), football (soccer) in Australia, whether for the executive (boards and senior

leadership) or in technical roles (coaches and operational staff), remains predominately male.

While recognising that diversity goes well beyond gender, and considerations of gender

equality must also take into account intersectionality, through the additional challenges

presented by race, class, ability, sexuality and nationality (Crenshaw 1991; Ryan & Dickson

2018), the professional practice analysis here is restricted to how the Australian football

community responded to the national and international requirement that structural gender

equity changes were implemented by the Football Federation of Australia [FFA].

The anecdotal commentary featured in Haigh’s article about the dearth of women in sports

leadership positions is supported internationally by the academic literature (Geeraert et al

2013; 2014; Houghton et al 2018). The development of the Sydney Scoreboard to highlight

the gender split on national and international sport boards (Adriaanse 2016, 2017; Adriaanse

& Claringbould 2016) is consistent with the extensive research done by advocacy groups and

academics, including the Women on Boards (WOB) Board Diversity Index (WOB 2010-); in

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the corporate setting (Sheridan et al 2014; Van der Walt & Ingley 2003), public service

(Evans et al 2014; Australian Government 2018), anti-corruption organisations (Transparency

International 2014) and not-for-profit sectors (Daley & Angulo 1994; FECCA 2013; Nehme

& Ordway (2016) p228-229). Although the sports environment is significantly different to

other industries (Healey 2012), the research consistently demonstrates that the number of

women in leadership positions in sport is extremely low and the broader diversity profile is

worse. Throughout the FFA governance crisis of 2017-18, the body responsible for electing

the FFA Board, the ‘Congress’, comprised ten men and no women, while the FFA Board, of

nine, reduced from two women to one (FFA 2017(a) pp65-66; Mersiades 2018(a)).

National and International Sport Obligations on the FFA re: Gender Equality In the sport context, the United Nations [UN] recognises the potential for sport to socially

empower women and girls (UN 2007). The almost 190 State Parties who are signatories to

the Convention on the Elimination of all forms of Discrimination Against Women [CEDAW]

(UN 1979), relevantly to this discussion as FIFA is seated in Zurich, also include both the

Governments of Switzerland and Australia (UN Treaty Collection 2018). However, the

recent changes in Australian football governance was not prompted by implementing the

CEDAW, but through FIFA pressuring its member federation, the FFA, to comply with the

regulations imposed on all national football federations. The FIFA Statute 2016 amendment

specified that all members, at a minimum: “must be constituted in accordance with the

principles of representative democracy and taking into account the importance of gender

equality in football” (Art.15(j), FIFA 2016). This requirement to “take into account” gender

equality reflects the increasing FIFA commitment to women in football, evidenced by a range

of initiatives, including the expansion of FIFA’s Objectives to both women’s football and the

full participation of women in governance (FIFA 2016, Art.2(e) and (f)). Expanding on these

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objectives, the Women’s Football: 10 Key Development Principles, prepared by FIFA’s

Women’s Football Taskforce, serve as guide to national federations (FIFA WFT 2014).

The FFA is also under an obligation to commit to good governance principles via, arguably,

it’s most politically important, if not it’s major funding body, the ASC [now Sport

Australia].1 Through the Winning Edge 2012-2022 high performance strategy (ASC 2012),

from 2013 the ASC directly tied governance requirements to funding for the top seven funded

sports through the Mandatory Sports Governance Principles [MSGP] (ASC AIS (2013), ASC

2013, 2015). The MSGP included a forty per-cent gender inclusion ‘target’ for the National

Sports Organisations [NSOs] (Principle 2.6). By linking gender equality, good governance

and the elite performance, the ASC thereby created the expectation that this target, together

with the other MSGP, would lead to both more medals and better integrity outcomes

(Ordway & Opie 2017 p48). This target has also been reflected in other women in sport

leadership programs around the world (eg: IOC 2018; Women in Sport UK 2017; Victorian

State Government 2017).

While called a “target”, by both including this requirement in the NSO mandatory reporting

statistics, the Sports Tally (AIS 2017), and also promising that there would be: “financial

implications for non-compliance” (Hume 2016), effectively created a quota. In 2015, the

MSGP was extended to the top fifteen sports, which included the FFA (ASC 2013, 2015).

The ASC Chair, John Wylie, stated that: “Any governance reform is only likely to succeed if

there's real consequences if the sports don't comply with what we're looking to do. And so

what we're saying to the sports is that if they don't meet these new mandatory guidelines

within 12 months, they face a funding cut of up to 20%.” (Cuddihy 2013). Despite these

1 NB: the Australian Institute of Sport formally ceased using the Winning Edge brand as its high performance strategy following the board meeting of the Australian Sports Commission on 14 December 2017. The Australian Sports Commission was re-named Sport Australia on 1 August 2018.

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strong words, the ASC did not hold the FFA, or any other NSOs, to account through financial

sanctions. The punishment ‘stick’ held by FIFA though was real, and was about to be

wielded.

The FFA Crisis: “The future of football is female” (Blatter, then FIFA President (Pfister 2006)) On any reading of the rules, FFA was clearly in breach of both the FIFA and ASC

requirements on gender equality. The FFA Members, or ‘Congress’, which is the body

authorised to elect the independent FFA Board members, until October 2018, consisted of ten

men: the State members contributed nine male Presidents (FFA 2017(c) cl.6.2(a)), and the A-

League Clubs collectively provided one male representative (FFA 2017(c), cl.6.5). This

situation was untenable, both from a democratic representation perspective, and from a

gender equality stance. As set out above, the 2017 FFA Annual General Meeting [AGM]

resulted in only two of nine female board members going forward, and this number dropped

to one in 2018 (FFA 2017(a)), with no approval for the proposed gender equity constitutional

amendments (FFA 2017(c)).

To pressure the NSOs to comply with the MSGP, the ASC publishes the Sports Tally, which

‘names and shames’ the most errant NSOs, but oddly, does not detail the degree of

compliance with the Principal 2.6 quota (AIS 2017). Internationally, transparency is also

used to encourage compliance, so that statistics on good governance for International

Federations [IFs], and other major games organisers, including the International Olympic

Committee [IOC], are published through independent researchers, including, the Sydney

Scoreboard (Adriaanse 2016, 2017; Adriaanse & Claringbould 2016), and the Sports

Governance Observer (Geeraert et al 2013 p208-9). More proactively, FIFA has another

macro-lever it could pull to bring recalcitrant member federations into line.

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Normalisation Committee Threat Without any hint of irony that FIFA itself had long been the subject of serious allegations of

corruption and major governance failures (Jennings 2006, 2016; Schenk 2011; Valloni &

Neuenschwander 2016), a number of national football federations have had FIFA

normalisation committees imposed to ensure that various FIFA requirements were

implemented (FIFA Media Releases 2011, 2013). As an Olympic sport, FIFA is also subject

to the IOC’s rules. Despite the introduction of Art.15(j), FIFA itself has not met the IOC’s

expectations that structural and financial gender balance initiatives are fully implemented

(IOC 2018). Undeterred by these inconsistencies, FIFA gave the FFA until November 2017

to implement Art.15(j) (FIFA Member Associations Committee 2017; FFA 2017(b)). A

failure to comply was supported by a threat to dismiss the FFA Board and replace it with a

“normalisation committee”. This was a real threat. Throughout the FFA crisis, FIFA

continued to publicise its use of the normalisation committee tool throughout the world to

enforce compliance with its rules (FIFA Media Releases 2017, 2018(a)(b)(c)).

The FFA stakeholders were keenly aware that if the FFA was suspended by FIFA, this would

impact on the ability of the national teams to compete in their respective World Cup qualifier

matches, and hurt their chance to host the Women’s World Cup [WWC] (ABC News Online

2017, Gothe-Snape 2017). The Australian women’s team, Matildas, were ranked world #8,

and men’s team, Socceroos, were the 2015 Asian Cup winner and ranked world #36 ((FFA

2017(b)), FIFA Team Rankings 2018(a)(b)). Ahead of public statements about the FFA’s

intention to bid for the 2023 WWC (Turnbull 2017), and the official launch (FFA 2018(b)),

the first FFA Women’s Football Strategy 2014-16 was developed. The Whole of Football

Plan (2015) identified the intention to bid for the WWC, and the 2016-2019 FFA Strategy

included a goal of becoming a “leading organisation for females” (Highwood 2018).

However, the gap between these aspirational statements and the reality of the situation at the

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leadership level was stark: of the available 56 State board positions, women held only eleven,

and none of them were Chairs or CEOs. Women were poorly represented in Zone

Representative positions and on Standing Committees (Mersiades 2017(a)(b)). None of the

A-League Clubs had ever had female Chairs or CEOs, and there were very few women in

executive or operational positions. The overall gender composition of the FFA staff has also

remained static at a low 26-27% (WGEA: 2016 p21; 2017 p19; 2018 p19).

FFA Annual General Meeting [AGM] November 2017 One key challenge to amending the FFA Constitution to satisfy FIFA’s requirement was the

constitutional threshold: a 75% majority had to agree to water-down their strangle-hold.

After months of deliberation, at the 30 November 2017 AGM the members voted against a

proposal to increase the total Congress to sixteen (FFA Staff Writer 2017). Called the

“9:4:1:1:1” model, this structure would have maintained the nine State member votes,

increased the A-League club representation from one to four, and included one representative

from the Professional Footballers Australia (PFA), one representative for “women’s football”

and one representative for “local grass-roots football associations”. However, agreement

could not be reached on how the women’s and community football representatives could be

recruited. On the upside, the 75% requirement was amended to require a simple majority (six

out of ten) to approve any future changes (FFA 2017(c) cl.9.9).

In response to this stalemate, the FIFA Member Associations Committee [FIFA MAC]

advised the FFA that it had met on 4 December 2017, and had reluctantly agreed to give the

FFA one last chance to comply with the FIFA Statutes. Instead of imposing a normalisation

committee, FIFA proposed to establish a Congress Review Working Group (CRWG) (FIFA

MAC 2017).

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Composition of the CRWG In February 2018, a delegation from the FIFA MAC and the AFC met with stakeholders to

discuss the composition of the CRWG (Bossi 2018). One of the stakeholders invited was a

new group called “Women Onside” [WO], aimed at promoting the women’s game, and to

increase the number of women holding decision-making positions throughout the football

eco-system (Women Onside 2017). WO in effect recommended that FIFA adopt an Ethics of

Care [EoC] approach in appointing the members of the CRWG and in drafting the terms of

reference.

The EoC approach, which traces its origins from feminism (Gilligan 1982), focuses on

creating greater empathy, mutual respect, justice, equality, fairness, trust, solidarity and

responsibility for those marginalised and more vulnerable in the community. As sport has

traditionally been developed by and for men (Hargreaves 2002), and women have been

excluded or restricted in their freedom to participate, then women can be considered to be

‘marginalised’ and ‘vulnerable’ in this context. As recognised by the IOC (2018) and FIFA

(2016), women, and women’s sport, therefore requires, not just equal treatment, but greater

investment in resources to counter historical inequalities (FIFA Governance 2018(b)).

Where people in positions of influence and power are the beneficiaries of a system

established and perpetuating historical and/or current inequities (racism, sexism, colonialism,

slavery etc), as is the case for sports organisations, then an EoC approach imposes a higher

duty on those beneficiaries to be inclusive and care for members of the community who have

been excluded from decision-making positions in their sports (eg: Ordway 2018). In football,

the legacy of exclusion remains, with women largely absent from decision-making and

leadership roles. The EoC approach was promoted in acknowledgement that the current

‘merit’ system has been founded on more than one hundred years of inequality, and the

implicit and/or conscious bias in assessing ‘merit’. The observation by Lieutenant General

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Campbell, Chief of [the Australian] Army, summarises the challenge facing football: “If we

believe that men and women are equally able, . . . then we should be expecting a 50/50

outcome. If we don’t get that, then there is either bias or constraints to natural merit” (Chief

Executive Women 2016 p4). For these reasons, WO rejected arguments to restrict the

number of women in football leadership positions, based on interpreting the FIFA term

“representative democracy” to reflect only the current female playing population of just over

20% of the overall football player community.

WO, in its meeting with the FIFA delegation, recommended that the CRWG should be

comprised of 50-50% women and men to establish a base line of gender equality. In

response, the FIFA hosts agreed that there should be both female stakeholder representatives,

and specific representation for the women’s game (Bossi 2018). However, FIFA did not

stipulate a quota for the CRWG, and instead the Terms of Reference allowed the various

stakeholders to nominate their preferred representatives based on the following nine-person

structure: an Independent Chair; a representative of the FFA Board (1); Member [State/

Territory] Federations (4); the Australian Professional Football Clubs Association (APFCA)

(2); and the PFA (1) (FIFA 2018(b)). It should be noted that the APFCA objectives are stated

to be only representative of men’s elite domestic football (APFCA 2019).

Given this background, few observers were surprised that the stakeholders only nominated

men for the eight CRWG positions (Gatt 2018). This inequity then, as a minimum, had to be

addressed through appointing a female independent Chair. An Australian lawyer based in

London with no conflicts within Australian football was approached by her former colleague,

South Australian football President, Sam Ciccarello, and her university classmate and A-

League representative, Greg Griffin. Having worked in Formula 1 race promotion contracts

and broadcast rights, Judith Griggs was eminently qualified to facilitate discussions between

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fractious parties with conflicting agendas (Griggs 2018; APFCA 2018), and FIFA supported

the CRWG’s unanimous decision (FIFA Governance 2018(a)).

CRWG: “If you’re not sitting at the table, you are on the menu” (US Senator Warren (Borger 2014)) The importance Senator Warren highlights about having a seat at the table, is that women

need to be in decision-making positions to be able to influence discussions that impact on

them. The idealistic position posited by Rus Funk (2017) in response is that those in the:

“position of privilege means there is an obligation to consider how to include the views of

those not at the table”. However, the challenge, as identified by sociologist, Michael

Kimmel, and as the gender composition of the CRWG dramatically illustrates, is that:

“privilege is invisible to those who have it” (Kimmel 2015). The unwillingness of each of

the organisations to consider a female representative, particularly when it was evident that the

result would be an all-male CRWG, demonstrates the condition described by Kimmel,

namely, that people holding the entitlement consider themselves as neutral and are unable or

unwilling to give up their own ‘seat’ to create an environment of inclusion.

To counter this imbalance, WO: “advocated strongly for 50-50 representation throughout”

(CRWG 2018; Women Onside 2018(a)(b)), requesting that a number of women be co-opted

onto the CRWG, to be observers, to receive copies of documents in order contribute to the

meetings. Although the CRWG Terms of Reference were established on 4 April, permission

was not sought for these requests until late June. Although FIFA allowed: “The chairperson

[to] co-opt a female representative to the CRWG with the same rights as all other

representatives.” (FIFA 2018(c)), the face-to-face meetings had been finalised by 1 July

2018. Instead, the Chair directly accessed a range of views outside of the CRWG to provide

perspectives on the various issues it was tasked with reporting on.

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The timeline of seven weeks for the CRWG to consult and produce a report, after “months of

exhaustive and exasperating deliberations” (Reid 2018), was very tight. The CRWG Chair

set a demanding schedule for herself, and the stakeholders involved, in order to comply with

the FIFA deadline:

The CRWG held a series of meetings both face-to-face meetings and by extended conference calls - between 12 June 2018 and submission of this report [31 July]. In all there were a total of 17 meetings of the full CRWG. As the 68th FIFA Congress and the 2018 FIFA World Cup Russia both fell squarely within the time allowed for the mandate, it was necessary to also accommodate international travel commitments of Members’ representatives as well as multiple time zones. . . . . Minutes of the meetings were taken with copies circulated to all CRWG Members’ representatives. All documents tabled were made available to all CRWG Members’ representatives. (CRWG 2018 p10. Bracket added).

Stakeholders not at the ‘table’, including WO, were not provided with copies of these

documents, and were not party to the deliberations of the CRWG, unless invited to a session.

WO Recommendations to the CRWG The submissions by WO drew the CRWG’s attention to the research supporting the view that,

apart from being morally right, the synergetic perspectives between women’s football and

women in football are essential (Women Onside 2018(a)(b)). In particular, the point was

made throughout the CRWG process that the broad visibility of women is crucial in

signalling to girls who aspire to be in football that they have the opportunity and right to

achieve at all levels. As originally expressed by American activist, Marian Wright Edelman

as “it’s hard to be what you can’t see”, in the sport and gender context, it also means that

while being the first or only woman is not impossible, it is a lot more difficult without role

models (Wright Edelman 2015, Broderick 2015).

Research has demonstrated that companies with a minimum of 30% of women on their

boards performed well, leading to a hypothesis that the female gender is no longer perceived

to be an impediment once this threshold had been reached (Kramer & Konrad 2006; Strydom

et al 2017). While achieving this critical mass is ‘ideal’, adding even one woman on a board

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has been found to lead to better performance ratings as compared with boards with none

(Zaichkowsky 2014). Companies hiring and retaining more women have been found to be

more competitive, because they are able to draw from a broader pool of talent in an era of

talent shortages. People from diverse backgrounds bring different insights and perspectives

(Siciliano 1996), and gender inclusive teams benefit from masculine and feminine values

(Syed & Murray 2008). As expressed by quantum physicist, Michael Biercuk, when more

women are included, "the perception of success changes" (Biercuk 2016).

In an attempt to ‘sell’ the benefits of gender equality for individuals, organisations, and the

community more broadly, correlative research has been done in a number of contexts and

industries. Extensive examinations in a range of corporate and not-for-profit sectors has

overwhelmingly supported the conclusion that diversity generally, and gender equality in

particular, leads to positive economic and intangible outcomes (Broderick 2010; McLeod

2013). There is support for the view that diverse groups will make better decisions than

gender homogenous groups (Van Knippenberg & Schippers 2007), provided the individuals

believe in the value of informational diversity (Homan et al 2004). As ‘agents of change’, or

role models, more female leaders had been found to assist in lowering the levels of sex

segregation and improving pay parity (Stainback & Kwon 2012). Other research has pointed

to a correlation between high numbers of female senior executives and stronger financial

performance and share prices (Desvaux et al 2008).

Perhaps it is not surprising that stronger financial performance would be evident as there has

also been research claiming that more female directors can reduce the risk of bankruptcy or

corporate insolvency (Wilson & Altanlar 2011; Hutchinson et al 2015), and reduce the

frequency and severity of fraud (Cumming et al 2015). More broadly, the research supports

the view that more women leaders promote good governance measures, thereby lowering the

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risk of corruption, through improved transparency and accountability (Goetz 2003).

Particularly when the organisation is under the spotlight, women have demonstrated their

reluctance to participate in anti-social/ illegal activity. Some women explain this behaviour

as stemming from a belief that gender discrimination creates an environment where women

are more vulnerable to punishment (Esarey & Chirillo 2013 at p363). Women have also

expressed that, as they are less likely to get opportunities than men, then they will work

harder, and follow the rules once they get the chance. Women are also aware that they are

role models for other women, and therefore subject to greater scrutiny (Stolberg 2011).

Quotas alone however are not enough, as it can lead to choosing women from the same

backgrounds, and thinking, as the men. Choosing ‘safe’ women, who do not challenge the

status quo, and/or women who are not culturally, educationally, age or otherwise diverse

from the men in leadership positions, potentially creates an integrity risk as was identified

through the banking and finance industry crisis. Expressed by one insider as: “"we

[directors] drive the same cars, live in the same suburbs ... in a comfortable bubble of sweet

content".” (Saintly 2018 p15). Organisations must be empowered to choose advocates for the

women’s game, and women in the game, in order for positive change to achieved. As

observed by Murray: “There are qualified women and men who can advocate for women’s

soccer, but FIFA hasn’t done enough to find and empower those people. FIFA took a good

first step by guaranteeing in 2016 that some seats on its council would go to women. But that

clearly wasn’t enough as Moya Dodd, one of the fiercest advocates of women’s soccer, lost

her election to a woman who didn’t even know who won the last Women’s World Cup. The

men who vote in the elections apparently would rather have a more compliant woman who

would stick to the status quo, unlike Dodd.” (Murray 2019)

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Finding the balance of including people who are ‘of the game’, with people who are

independent of football is also important for diverse thinking. Rather than purely inviting

corporate women with no football understanding into football leadership positions, including

diverse voices from different parts of the game is crucial. Limiting selection to women with

little or no connection to the game, who are almost silent and invisible in the world of

football, does not inspire aspiration and engagement by women in football, and does not

provide a pathway for women in the game to progress into leadership positions. In a

submission to the CRWG, WO also quoted Dodd, referred to by Murray above:

Merely having women in the boardroom - helping improve decision making for the predominantly male game - is not going to cut it as a transformational step to enable women to participate at all levels of football governance. For that, we need the women's game to thrive, as the first entry point into the game. Because if girls cannot begin their football journey on an equal footing with boys, they will be at a lifelong disadvantage in participating equally, across the spectrum of football roles. Women's football and women in football are profoundly connected. The latter cannot thrive unless the former does. (WO 2018(a))

Social commentators, such as Rizvi (2017), also warn against reducing the argument for the

benefits of gender equality to an economic one. Rizvi promotes the idea that gender equality

must be pursued morally as a valuable objective in its own right (Rizvi 2017 p204). Consistent

with statements repeated throughout the FFA governance crisis, Broome et al (2010) observed

the sentiment being expressed that: “If the impact of board diversity on corporate performance

is neutral (or, even worse, negative) and entails implementation costs, then the normative case

for “doing the right thing” becomes more difficult to justify. Why should current public

shareholders [or in this case, federations and football clubs] incur the costs of providing a public

good in the form of greater board diversity?” (Broome et al 2010 p763 brackets added). The

danger then is that if increasing the talent pool doesn’t result in tangible, and ideally,

instantaneous, improved results on-field (or there is an integrity crisis, and/or results worsen)

then organisations may be tempted to revert back to the status quo of ‘pale, male and stale’

(ascribed to Lawler 1996 at p800).

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Not satisfied to merely provide support for the question of ‘why’ gender equity measures

should be included in the FFA governance reforms, WO also supported the CRWG in

providing solutions on ‘how’ to achieve their aim of putting more talented women into

decision-making positions. This initiative was seen by WO as particularly pressing where

those in power benefitted from retaining the status quo. Their view was later reinforced by

the report, Better Together: Increasing Male Engagement in Gender Equality Efforts in

Australia, which found that most men (76%) are gender equality supporters, but few (17%)

prioritise taking action. This report also recommended that male engagement could be

achieved by “mak[ing] it easy” (Bain & Company and Chief Executive Women 2019 p16).

Recommendations on how to achieve: “representative democracy taking into account the importance of gender equality in football” (Article 15(j), FIFA 2016) As envisaged through the CEDAW and other UN documents (UN 1979, 2002, 2007), cultural

change requires that gender equality is mainstreamed using a range of structural and other

tools. As set out by Rees (2002): “‘Gender mainstreaming’ is the systematic integration of

gender equality into all systems and structures; policies, programs, processes and projects;

into cultures and their organisations; into ways of seeing and doing.” (Rees 2002, p3).

Mainstreaming therefore requires a consistent approach throughout the FFA and its members

through communication strategies, recruitment, retention and promotion to demonstrate a

commitment to valuing diversity in all aspects of the football ecosystem.

Apart from requiring, as base level transparency, that all the stakeholders upload annual

reports and financial statements onto their websites and advertise all positions with detailed

job descriptions, the FFA can also implement gender mainstreaming through encouraging its

stakeholders to undertake proactive and persistent processes to identify and retain skilled

women and leadership talent. Organisations, such as Basketball Australia, publish their

Board Charter, and completed and de-identified Director Position Profile and Skills Matrix,

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including its female representation statistics, on its website (Basketball Australia n.a.).

Research by Gaucher et al (2011) has demonstrated that to attract female candidates to

positions, on an equal basis to men, requires inclusive language on websites and in

recruitment documentation. This can be achieved using tools, such as the Gender Decoder

(Matfield n.a.). Ethical leadership training (Ordway & Opie 2017; Rooke & Torbert 2005),

supported by sponsorship (ie: shepherding by a senior person), pay parity and equal media,

and social media, contributions will go a long way to addressing the current imbalance (Male

Champions of Change 2019, Price & Payne 2019 at p7). In addition, WO presented the

following case studies and research to the CRWG based on an EoC approach (2018(a)):

1. Quota Percentages: The MSGP 40% target is set out above (ASC 2013, 2015). Noting

the challenges around the introduction of quotas addressed below, on balance, it is

recommended that the 40:40:20 requirement be expanded throughout the football eco-system.

An example of the implementation of the MSGP requirement can be found in the Paddling

Australia board (formerly, Canoeing Australia) (Paddling Australia, 2017 cl.13.2(a)).

2. “Different Genders” Mandated for Specified Positions: One mechanism used to create

an element of structural gender equity, is to constitutionally require that, for example, the

Chair and Deputy Chair roles are “different” genders (Athletes’ Commission, AOC 2018

cl.9.9). This is preferable to the “both genders” binary format (Paddling Australia 2015

cl.2.3), but is still insufficient alone to create gender equality (eg: even if the Athlete’s

Commission Deputy Chair was not constitutionally barred from the AOC Executive, as is

currently the case, the female composition would only be just over 30% (AOC (n.a)).

3. Expanding the pie: Quotas by Numbers and/or Female Only Positions: Boards have

traditionally been made up of representative positions, and in some cases each of the

Standing Committee Chairs (including the Women’s Committee) have had a vote on the

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executive (eg: Capital Football 2014). In an independent board setting, a ‘women only’

board position can be created, often in association with expanding the total number on the

board to avoid an incumbent losing ‘his’ seat (Kimmel 2017). For example, the FIFA Statute

requires that each of its six Confederations: “elect at least one female member to the Council”

(FIFA 2018(a) Arts.27(4), 33(5)). Any Confederation failing to elect a woman will have that

seat “deemed forfeited” until the next round of elections (FIFA 2018(a) Art.33(5)). The

FIFA Council is the strategic and oversight body (FIFA 2018(a) Art.24(2)), with thirty-seven

members (FIFA 2018(a) Art 33(1)). This ‘female member’ mechanism guarantees that there

will be a minimum of 16% female representation, which remains too low.

The number of Council positions differ by Confederation, reflecting historical and

contemporary power and population bases, meaning that the impact one ‘female member’ can

have within a confederation also varies from one of nine (UEFA: Europe) to one of three

(OFC: Oceania) (FIFA 2018(a) Art 33(4)). The desire to only allow ‘safe’ women to be

elected, as identified above in Dodd’s example (Murray 2019), is exacerbated by the

requirement that: “No more than one representative from the same member association may

serve on the Council simultaneously”. This requirement has also had the unintended impact

of excluding a number of talented and competent women because there are men from the

same nation already on the Council, or aspiring to, who take priority (FIFA 2018(a)

Art.33(6)).

The idea of ‘expanding the pie’ has also been explored in the entertainment industry, where

researchers at the Annenberg Media, Diversity & Social Change Initiative are promoting the

idea of “Just Add 5” to address the finding that women have made up less than 30% of

speaking roles in the top 100 films each year for decades:

Add[ing] 5 female speaking characters to every one of the 100 top movies next year. . . . will set a new overall norm for female characters. Repeating this process for 3

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years will result in gender parity on screen in 2020, and the first time equality would be reached in almost three-quarters of a century. Adding 5 female characters allows for intersectional diversity as well—these women can be from underrepresented racial/ethnic groups, can be from the LGBT community, and can be depicted with a disability. Moreover, the plan does not take away background roles from male actors and should be relatively inexpensive. Creating gender parity need not be an onerous endeavor, but it must be a thoughtful one. (Smith et al 2018 p28).

In line with Hollywood’s example, WO pitched to the CRWG that to achieve gender equality

by 2020 would require expanding the FFA Congress to twenty and adding five women each

year (5050by2020, n.a.). A more conservative alternative, reflecting the UN Sustainable

Development Goals, assuming the average number of people on a board is ten, is to add one

‘female only’ position each year until the ideal of fifty-fifty is reached by 2029 (Guterres

2017, 50/50 by 2030 Foundation).

In a contested election, where the Constitution requires that a minimum number of women

must be voted in, then effectively the rule is: ‘first past the post, provided you are a woman’.

For example, the AOC Athlete’s Commission consists of up to twelve people (eight elected at

the Summer Olympic Games, two elected at the Olympic Winter Games and up to two

athletes elected by the Executive) (AOC 2018 cl.9.1). Of the eight athletes elected at the

Summer Olympic Games, it is mandated that there must be: “not less than three males and

not less than three females” and the Winter Olympic Games elected representatives: “must

comprise one of each sex” (AOC 2018 cl.9.3). This in effect means that those athletes

receiving the most votes may not necessarily be elected. As set out in cl.9.4(6), and also in a

nod to age diversity rarely seen in other constitutions: “Subject to the requirements

concerning the sex of members of the Athletes’ Commission, the relevant number of highest

polling candidates will be deemed to be elected to the Athletes’ Commission. In the event of

a tie, preference will be given to the youngest candidate” (AOC 2018).

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4. Graduated Quotas: In addition to the recommended turn-over mechanisms via term

lengths (ASC 2013, 2015), or maximum age limits (eg: IOC 2018; FIFA 2018), another

methodology to achieve gender equality is to specify staggered quotas over time. Following

the major governance failures and criminal-level corruption found within the International

Association of Athletics Federation [IAAF] (Independent Commission 2015), the IAAF is

undergoing major governance reform, including adopting significant gender equity measures.

Chaired by Maria Clarke, the IAAF Governance Structure Reform Working Group produced

a report called: “Time For Change” (IAAF 2016(a)(b)). These reforms, supported by 95% of

the IAAF Special Congress (IAAF 2016(c)(d)), are reflected in the Constitution that came

into effect on 1 January 2019 (IAAF 2016(d)). The composition of the IAAF Council now

guarantees an expanded minimum level of geo-political (Area) representation, the inclusion

of athletes’ voices and the creation of mandated gender balance. Although still couched in

binary terms (which takes on a special significance when considered in light of the Semenya

controversy: Cooky & Dworkin 2013), the amended Constitution sets out the minimum

number of women required to occupy the seats on the IAAF Council and the Executive Board

(IAAF 2016(e) Arts.36, 41, and 60.7). This creates, what Clarke calls, the “gender

leadership” environment (NZ Herald 2017). At the 2023 Election, there must be a minimum

of ten of each gender elected from amongst the total of twenty-six Council members

(including the one Vice President and athlete representative of each gender). At the 2027

Election, there must be thirteen of each gender on the IAAF Council (including the two Vice

Presidents of each gender), that is 50%. By 2027, the IAAF Executive Board (total of 9)

must consist of three members of each gender (IAAF 2017(a)).

To support this graduated increase over time, the IAAF has allocated funding to a targeted

recruitment and training program (IAAF 2018). Intended to build capacity through

identifying and up-skilling young women who show leadership potential, the IAAF has

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established the Gender Leadership Taskforce to work with the IAAF Women’s Committee

(IAAF 2017(b)). At its inaugural meeting, the Taskforce identified that their aim would be

to: “encourage male advocacy, using the power of voice at all levels of the sport, identifying

bias and selecting process changes.” (IAAF 2017(b)). Echoing the sentiments from Dodd

above (Women Onside 2018(a)), the Taskforce stated that their role was in recognising:

“barriers and opportunities – both economic and social – to women entering all levels of the

sport from coaching to officiating and administration. Only then will we have the strong and

committed pipeline that represents the sport globally and can filter both the quality and

quantity of women ultimately into the top positions” (IAAF 2017(b)).

5. Applying the “Rooney Rule” to gender and the “Inclusion Rider” to sport: The

Rooney Rule was designed as an equity measure for black and latino men applying for

coaching and team management positions in the US National Football League [NFL]

(Fanning Madden & Ruther 2011). An EoC approach suggests that this technique can be

applied to under-represented minorities in any sport, and any industry. The Rooney Rule

concept has been utilised in the corporate sphere, for example: Australia Post CEO, Christine

Holgate, requires that head-hunters have a female on the short list for every role: “You are

going to choose the best person for the job but if you are insisting that there is a woman on

the short list then everyone gets to hear that they can’t just give you the three people that they

know.” (Tasker 2018). Going even further, Mirvac CEO, Susan Lloyd-Hurwitz, refers to the

company rule that each short list for a senior role must be 50-50: “That stops the ‘I can’t find

any women’, because we are saying ‘you have to find candidates’. You don’t have to hire

them; you hire the best person. But you have to consider them.” (Overington 2018). In the

football governance setting, WO recommended that the stakeholder representatives at

Congress, and nominees for every position are required to reflect gender diversity.

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The idea of having influential women and men (Chief Executive Women (2016)) in positions

of power, not only advocating for equality, but stipulating in their contracts that people of

diverse backgrounds are included in decision-making roles has been outlined by the

Annenberg group (Smith 2018). Called the “Inclusion Rider”, it encourages those with

leverage to include a clause in their contracts requiring that the community be represented by

race, gender and ability demographics in both onscreen and off-screen staff. The “Inclusion

Rider” received international publicity through Frances McDormand’s Best Actress Academy

Awards (Oscar) speech (McDormand 2018). A similar call has been made to end the practice

of all male conference programs and panels, called ‘Manels’, through invited speakers

refusing to attend until “attention to inclusiveness is . . . evident” (Collins 2019). In football,

the PFA could use their leverage to negotiate with the FFA and the clubs, not only for pay

parity, but to demand that there be women in governance and in operational positions.

CRWG Report Accepted by Congress

The extent to which the CRWG included these recommendations from WO, and other

contributors, can only be surmised from subsequent events. Despite the FFA Board’s

reservations (FFA Board 2018), the 31 July report (CRWG 2018), accepted by FIFA and

translated into constitutional amendments, was adopted by the Congress (FFA 2018(a)) at the

2 October 2018 General Meeting where they voted to ‘expand the pie’ to allow for

democratic representation and gender balance. The expansion of the FFA Congress from ten

to twenty-nine was achieved through: a new Women’s Football Council [WFC] (10); the

retention of State Members (9); the expansion of A-League Clubs (from 1 to 9); and the

addition of a new representative for the PFA (1).

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The four most important constitutional changes, as identified by Heather Reid (2018) in her

presentation at the Women and Sport II Conference, were:

1. The formation of a new ten member Women’s Football Council with each memberhaving a vote on Congress representing a total of 10% voting rights. [FFA 2018(a)cl.18.4]

2. the Members of Congress - being the nine Federations, the nine Australian based A-League clubs and the Professional Footballers Association are now required tonominate two delegates, one male and one female, to attend each general meeting.[FFA 2018(a) cl.10.3(a)]

3. adoption of a 40-40-20 gender equity principle for the composition of the board andstanding committees. This principle is based on the IOC model and it means thatelected or appointed bodies will comprise at least 40% women with the FFAexpecting it to also apply at State and regional levels. [FFA 2018(a) cl.44. ThisPrinciple was defined by cl.45.1 to mean: “a gender target of 40% men, 40% womenand 20% either”.]

4. The gender composition of the Chair and Deputy Chair of the FFA Board. Wherepossible, the elected directors must ensure that if the Chair is a male, then the Deputychair will be a female. And vice versa. [FFA 2018(a) cl.15.9(f)] (Reid 2018 Bracketedreferences added).

Women’s Football Council [WFC] In order to participate in the election of the new FFA Board meant that the newly created

WFC had to be established prior to the 19 November 2018 AGM. This timeline then did not

give the three stakeholders much time to identify, cajole and elect women satisfying the:

“mix of demonstrated experience, requisite qualifications and admirable knowledge” (FFA

2018(a) cl.18.4(c)). The members of the WFC were required to bring experience in:

“Women's football; professional playing; coaching; refereeing; State Members’ governance

and management; Club and Football League governance and management; and government

affairs.” (FFA 2018(a) cl.18.4). Given that the WFC is composed by: “three members elected

by the State Members [9 male Presidents]; three members elected by the A-League Club

Members [10 male Chairs]; three members elected by the PFA [7/10 men], one independent

Chair elected by the Nominations Committee [3 men] and then ratified by the Congress [10

men]” [brackets added], the greater challenge was to determine whether sufficient numbers of

suitably independent and competent women who understand the game, beyond the immediate

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circle of wives, lovers, sisters, work-mates or other categories of ‘safe’ women, could be

found in time (FFA 2018(a) cl.18.4).

The baseline gender equality composition of both State members and the professional clubs

at the ownership, board and senior management level is very difficult to determine due to

very poor transparency practices (Mersiades 2017(a), 2018(b)). However, as Reid observed:

When I was at Capital Football, I was the only female CEO - representing 11%. When I left in 2016 and was replaced by a man, female representation at national CEO meetings went to zero. There are still no female CEO’s amongst the member Federations or A-League clubs or the PFA, and there are no female presidents within those stakeholders either. Zero women in key decision- making and leadership positions. Reid (2018)

The lack of long-term planning through the recruitment, identification, promotion,

sponsorship, support and training for suitable women with leadership qualities over the

decades meant that the parties were scrambling to come up with names. WO proactively

provided the stakeholders with a provisional register of 36 women and their biographies to

assist. It was dubbed ‘Elaine’s List’ in recognition of the contribution that the “matriarch of

women’s football” Elaine Watson OAM made to the formation, development and growth of

football for Australian women and girls over twenty years from the mid-1970s (Women

Onside 2018(c)). It is not known the extent to which stakeholders had regard for this list.

The WFC ‘election’ was deemed to have taken place on 17 November, and was ratified at the

FFA AGM on 19 November. Ros Moriarty was appointed independent Chair without any

nomination process. Apart from being the Managing Director and co-founder of Balarinji (an

Indigenous strategy and design company), more importantly for football purposes, Moriarty

is married to John Moriarty, who holds the honour of being the first indigenous Socceroo

(Baum 2006; Moriarty 2018(a)(b)). The State members were only able to find one current

board member between them to elect: Fran Sankey is an ACT female Board member [now

President] (Capital Football 2018). The other elected members were Janette Spencer, who

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previously held positions with Football West and the WA Women’s Soccer Association, but

has retired (Tanner Heath 2017), and Maha Krayem Abdo, CEO of the Muslim Women’s

Association, whose only football connection appears to be that she is the sister of Rabieh

Krayem. Rabieh is the Chairman of the Association of Australian (National Premier League)

Football Clubs (AAFC) (Australian Human Rights Commission 2015; Krayam 2018). In an

unlikely coincidence, the admission of the AAFC as a FFA Qualifying Member was also on

the 2018 AGM Agenda (AAFC 2018)).

The PFA elected three of its Executive Members, but oddly chose to include its male

President, Alex Wilkinson, to join Elise Kellond-Knight and Lydia Williams, instead of any

of the large pool of female members the PFA had to choose from (PFA 2018). Williams is an

indigenous athlete, but otherwise she and Kellond-Knight can be expected to present similar

view-points as they are on the same W-League and US teams, and are in the Matildas

together (Pine 2017). In choosing a man for the WFC, the PFA decision is a fundamental

misunderstanding of the purpose of the ten-woman WFC recommended by the CRWG

Report (2018). The CRWG clearly established the WFC to create a quota of 34.5% (10/29)

to address the previous inequity of zero percent (0/10) on the Congress. The PFA decision

was also a misreading of the maturity of the stakeholders in gender equality terms,

demonstrated by, as only two of the most recent examples; (a) 8/8 men appointed onto the

body expressly established by FIFA to consider gender equity measures (the CRWG), and (b)

3/3 self-appointed men (including the PFA CEO) on the Nominations Committee to choose

the Chair of the WFC. Far from being a ‘male champion of change’, a media and social

media scan indicates that Wilkinson has never spoken publicly on any of the issues expected

to be considered by the WFC, including: the women’s game, pay parity, or inclusion.

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The nomination of the women chosen by the A-League clubs also needs to be understood in

the context of the ownership models and gender break-down of the Directors and senior

leadership. The A-League is the professional men's football league run by the FFA.

Commencing in 2005, the A-League is currently contested by ten licensed teams; nine based

in Australia and one from New Zealand. The W-League was established in 2008 and is now

composed of nine teams. Not all A-League clubs have ‘sister’ W-League teams (Wellington

Phoenix and Central Coast Mariners) and not all W-League clubs have ‘brother’ A-League

teams (Canberra United is owned and managed by Capital Football, and therefore excluded

by the A-League in the nominations and voting processes). Despite the decade-long history

of the W-League, only the A-League is referred to in the FFA Constitution, and this appears

to reflect a general assumption that the W-League teams will be represented by the men’s

clubs. In the rush to translate the CRWG Report (2018) into constitutional amendments, the

FFA has missed an opportunity to amend this oversight, and adopt a more inclusive phrase

throughout.

Even those A-League clubs with W-League teams make very little reference to their ‘sister’

teams on their websites, and very few women hold operational positions, in A- or W-League

teams. In one case, where all operational roles, including for the W-League team, are filled

by men, the club has an all-male “Football Subcommittee”, which is responsible for: “senior

recruitment and retention”: “talent identification, salary cap and budget management, cultural

and football philosophy” (Adelaide United 2018). The W-League staff are often listed below

the entire the A-League operational staff on the club websites, and below the Youth (Y)

League staff. In one case, the first woman to be listed on the website was the “Football

Executive Assistant”, even though this was one of the rare clubs that could boast having a

female W-League coach (Brisbane Roar FC 2018). A snap-shot review of the “Latest News”

articles posted by each of the clubs participating in both Round 10 (of 27) in the A-League,

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and Round 9 (of 14) in the W-League, by way of example, revealed that, except for Perth

Glory who actively promotes marquee player Sam Kerr, most clubs managed only one or two

W-League articles on their landing page. Despite Perth Glory being home to an international

multi-award-winning superstar, it’s CEO also only makes reference to the A-League club on

his LinkedIn profile (Pignata 2018). These oversights appear to be reflective of their

priorities.

Despite this poor track record, the A-League clubs were arguably more successful than the

State members in electing women currently holding office: Erica Berchtold appears to be the

sole female director of Sydney Football Club (Mersiades 2018(b)); Caroline Carnegie, the

only female Melbourne Victory Football Club Director (Melbourne Victory FC 2018),

proudly announced that she was appointed as she is also a Partner at the same legal firm as

FFA Board member (now Chairman), Chris Nikou (Carnegie 2018; K&L Gates 2019(a)(b));

and, as the Melbourne City Football Club does not have female directors, they nominated

Head of Community, Susan Crow (Mersiades 2018(b)). Although a staff member, rather than

an owner/ Board member, Susan is one of the most experienced sport administrators on the

WFC, but does not have a public voice on gender equality issues (Crow 2018).

FFA AGM: 19 November 2018 The main item on the 2018 AGM agenda was the full twenty-nine Members (holding a total

of 100 votes) voting for four members of the FFA Board (FFA 2018(a) cl.15.1). The

returning board members were Crispin Murray (male) and Kelly Bayer-Rosmarin (female),

who each had another year to run. The break-down of the number of votes per Member are

as follows: (i) the nine State members 55 votes; (ii) the nine A-League Club Members 28

votes; (iii) the PFA seven votes; and (iv) the ten WFC Members one vote each (10) (FFA

2018(a) cl.10.1(a)).

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Under the Constitution, each Member had to be represented at the General Meetings by a

male and a female, however the votes allocated to each Member could be cast by the

representative endorsed by their Board, or other proxy (FFA 2018(a) cl.10.3). The maximum

AGM composition then is 48 people (18 representing State members; 18 representing the

Australian A-League clubs; ten representing the WFC and two representing the PFA),

meaning that a minimum of 29/48 (60%) present should be women. On the day, there were

thirty-three attendees at the AGM (16 men and 17 women) who were there as either a voting

member, representative, or proxy of a voting member. Some representatives wore several

‘hats’, doubling as proxies, and/or members of the WFC. In the case of one A-League Club,

the Newcastle Jets CEO, Lawrie McKinna, appears not to have read the CRWG Report

(2018) or the FIFA Statute (2018), as he is reported to have brought his wife Christine as the

club representative, although she does not hold an official position in the club (Reid 2018).

The FFA Board vote confirmed in order: Reid, Joseph Carrozzi, Nikou and Remo Nogarotto

(Tiernan 2018). Following the meeting of the full Board, Nikou was elected as the new

Chairman, and Reid as the first female Deputy Chair (FFA 2018(a) cl.15.9(f)). The New

Daily called Reid: “The custodian of Australia’s women’s football journey” (Edgley 2018).

While two of six female Board members does not satisfy the FFA/ASC 40% requirement,

another three Board members can be invited as Appointed Directors (FFA 2018(a) cl.15.16);

ideally through an open recruitment process.

Significance and Conclusion: The result of the arduous journey outlined is that the football community in Australia, as

represented by the FFA, has managed to successfully bring the FFA Constitution into

alignment with the requirements of the FIFA and the ASC (FFA 2018(a)). Rather than

imposing the forced resignation of current office holders to make way for new members

representing broader diversity profiles, appealing to incumbents to step aside on ‘moral’

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grounds, and/or waiting for them to resign or die, instead, early indications were that the

sense of entitlement (Kimmel 2017) has been replaced by an EoC approach reinforcing the

value of “gender leadership” (NZ Herald 2017). Expressed through the October 2018

constitutional changes, and the election of the new FFA Board, women in football, and the

women’s game, have been structurally elevated to their rightful position. The Congress has

been expanded to provide mandated positions for women in each of the major stakeholders of

the game, including: the State members, the professional clubs and the PFA, with room to

include more. The FFA Chair and Deputy Chair positions must be different genders, and the

full participation of women at all levels of football governance has been guaranteed through

enshrining the 40:40:20 principle throughout.

The challenge now is for the FFA to ‘walk the talk’ and allocate resources to integrate gender

mainstreaming into every aspect of the football eco-system, including identifying and

promoting female leaders of the future. Not just as a matter of human rights and democratic

justice, the community at large will now see that football is a fair sport that supports women

and will welcome their engagement as participants, fans and funders. In the context of the

FFA’s bid for the WWC 2023, these concrete, structural changes to harness the talents of half

the population are especially important. The FFA have stated that women are a key,

legitimate, valued and respected part of the sport. As the submissions by WO set out

(2018(a)(b)), the research supports the view that the culture of an organisation, or in this case,

an eco-system, can only be altered through promotes gender equality messages for all

stakeholders at every level.

As also understood by other industries: “Driving cultural change requires buy-in and active

participation across all industry participants, administrators and regulators. Senior leaders

have a critical role in setting an excellence benchmark for the desired behaviours of the

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industry as a whole.” (Racing Victoria 2019 p14). Similarly, in the scientific community, it

has been identified that: “Leaders should also take action to address the problematic cultural

practices . . . that limit the advancement of women at every level of academia and to work to

create a culture that is supportive of diversity. . . . While leaders at the top of an organization

are influential and important to addressing culture change, lower-level leadership . . . has a

strong impact on the culture, climate, and everyday behaviors. Therefore, it is crucial that all

levels of leadership are held responsible for creating this culture and climate change.”

(National Academies of Sciences, Engineering, and Medicine 2018 at p148). In order for the

FFA to achieve its strategic vision, for: "Football to be the largest and most popular sport in

Australia” (FFA 2015), each of its stakeholders must be held to account as they continue to

improve their governance, transparency, and commitment to gender equality across the board.

It is hoped that the EoC approach, and a new culture of love and inclusion, can help to

achieve that vision.

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Chapter 3: Partnerships – information-sharing and inter-agency collaboration

156


Chapter 3 Overview Partnerships: information-sharing and inter-agency collaboration

Another of the anti-corruption strategies highlighted in Chapter 1, Publication #1 Ordway &

Opie (2017), was: “Partnerships: information-sharing and inter-agency collaboration”. In this

chapter 3, case studies focused on combatting doping (Publication #4) and match-fixing

(Publication #5) expand on this strategy in more detail.

In Publication #4, Why Being a World Leader Means Staying Ahead of the Game: Supporting

ASADA’s Enhanced Powers (2013) was an early exploration of the idea that the Australian

Sports Anti-Doping Authority (ASADA) could not fulfil its obligations as the National Anti-

Doping Organisation [NADO] for Australia without help. The requirements on NADOs set

out in the World Anti-Doping Code and the UNESCO Convention on Anti-Doping to detect

and enforce the anti-doping rule violations demanded powers way beyond what is normally

granted to a sporting organisation, or in ASADA’s case, a statutory authority. It was

therefore proposed in Publication #4 that ASADA’s legislation be expanded to include

information-sharing powers to enable ASADA to receive information from law enforcement

agencies on the trafficking and possession of substances and methods on the World Anti-

Doping Agency Prohibited List.

Publication #5, Police and investigative co-operation on match-fixing: the Australian

experience, makes the argument that the Australian preparations for the 2015 Major Sporting

Events (MSE), focused on preventing match-fixing, were effective and therefore should be

used as a model for future events internationally. Australia was hosting major events in three

sports: cricket, football and netball, but, in line with the risk profile of these sports outlined

by Hill (2008), the Australian Federal Police (AFP) primarily focused on protecting football

and cricket due to the volume and breadth of expected bets internationally, and the

consequent risk of match-fixing.

Publication #5 describes the author’s experience in co-facilitating the AFP-led MSE Law

Enforcement Agency (LEA) scenario planning in advance of the 2015 International Cricket

Council men’s World Cup and the men’s Asian Football Confederation Cup. At this forum,

the author was also asked to present on: “The importance of LEA / Sport relationships when

crime targets sport”. This presentation outlined the inter-agency collaborative approach used

by anti-doping regulators, and why the match-fixing environment justified as even greater

cooperative relationship with LEAs.

157


As detailed in Publication #5, the AFP’s partnership-building strategy included preparing a

Concept of Operations to document the different processes, and bringing all the relevant

sport, LEA and Government stakeholders into the same room for scenario planning. The

AFP, tasked with detecting and deterring money laundering and organised crime on a

national and international level, led the relationship-building process in earnest from 2013.

This was supported by signing Memorandums of Understanding to facilitate information-

sharing and to clarify roles and timing for the various investigative and communication

operations.

The Ethics of Care (EoC) approach (Gilligan 1982) was evident throughout this process,

where partnerships were forged with the common goal of creating a culture of respect. The

widespread acknowledgement of the importance of sport in Australian society, and the

national pride associated with hosting these major events on home soil perhaps was the

impetus for creating such a positive and open environment. The leadership and staff at the

AFP had spent months, in the lead up to the scenario planning, proactively cultivating

relationships across organisations at different levels based on mutual understanding and trust.

It was evident in the dealings between LEA personnel, Government and sport representatives

during the scenario planning, despite a federal LEA system that had been reported to be

siloed at best, and dysfunctional at worst (Hufnagel 2012, and Hufnagel 2016), that

communicating informally and building relationships had been time well spent.

The importance of trust between the various stakeholders working to uphold the integrity of

sport has been highlighted in a presentation by the Director of the World Anti-Doping

Agency’s Intelligence and Investigations department, Günter Younger, who stated: "This is

the biggest thing; if you have trust you do not need resources" (cited in Morgan 2018). In the

current environment, trust is unlikely to ever be sufficient, but the point is well made:

partnerships, information-sharing and inter-agency collaboration are now absolutely crucial

to ensure that all the players on the same side are in concert. As is set out in Chapter 4,

legislation and regulatory measures can also support that trust.

References: Hill, D., (2008) The Fix, McClelland & Stewart, Toronto Hufnagel, S. (2012). Harmonising police cooperation laws in Australia and the European Union: the tension between local/national and national/supranational interests. Australian Journal of Forensic Sciences, 44(1), 45-62 Hufnagel, S. (2016). Policing cooperation across borders: comparative perspectives on law enforcement within the EU and Australia. Routledge

158


Morgan, L. (2018), “Suggestions of WADA funding withdrawal would damage the department which needs it most”, Inside the Games, 5 November, https://www.insidethegames.biz/articles/1071893/liam-morgan-suggestions-of-wada-funding-withdrawal-would-damage-the-department-which-needs-it-most.

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Match- Fixing in Sport

Match- fixing represents a greater potential threat to the integrity of sport than doping. It has been linked to organised crime, illegal drugs and moneylaundering. Law enforcement and sporting authorities are strug-gling to establish legal and regulatory responses to this emerging threat, particularly in light of cross- border internet gambling. This book examines match- fixing and the legal responses to it in three key Asian sporting nations: Australia, Japan and Korea. It explores the sig-nificance of legal, regulatory and cultural differences, and draws lessons in terms of best practice and enforcement for legal and sporting authorities around the world. Including key insights from players, the betting indus-try, law enforcement and prosecution authorities, it discusses the strengths and weakness of current anti- corruption strategies in the three jurisdictions. Match- Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond offers important insights for all students and scholars with an interest in sport studies, law, criminology and Asian studies.

Stacey Steele is Associate Professor and Associate Director (Japan) of the Asian Law Centre at Melbourne Law School, Australia.

Hayden Opie is Senior Fellow and former Director of Studies of the Sports Law Program at Melbourne Law School, Australia.

PUBLICATION #5

164

Routledge Research in Sport and CorruptionSeries Editors:James SkinnerLoughborough University London, UKTerry Engelberg- MostonJames Cook University, Australia

Match- Fixing in Sport Comparative Studies from Australia, Japan, Korea and Beyond Edited by Stacey Steele and Hayden Opie

165

Match- Fixing in Sport

Comparative Studies from Australia, Japan, Korea and Beyond

Edited by Stacey Steele and Hayden Opie

166

First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge 711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2018 selection and editorial matter, Stacey Steele and Hayden Opie; individual chapters, the contributors

The right of Stacey Steele and Hayden Opie to be identified as the authors of the editorial matter, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data A catalog record for this book has been requested

ISBN: 978-0-415-78530-3 (hbk) ISBN: 978-1-315-22828-0 (ebk)

Typeset in Sabon by Wearset Ltd, Boldon, Tyne and Wear

167

Contents

List of tables viiiNotes on contributors xForeword xviAcknowledgements xviiiNotes on style xxList of abbreviations xxii

Part IConceptualising match- fixing 1

1 Comparing approaches to match- fixing in sport: revisiting perceptions and definitions 3H A y D e n O P I e A n D S T A C e y S T e e L e

2 Betting markets and the roles of private enterprise in combating match- fixing 18A n D r e w M e n z A n D D A v I D S K e n e

Part IILegal theories, frameworks and developments 41

3 Match- fixing and illegal gambling in Japan: cultural interpretations of integrity 43K e I J I K A w A I

4 The Australian legal framework for countering match- fixing 59H A y D e n O P I e A n D G e n e v I e v e L I M

168

vi Contents

5 Legal and administrative frameworks for combating match- fixing in Korea 75K e e y O u n g y e u n

6 Practical approaches to match- fixing in Korea: match- fixing scandals, judicial responses and suggestions for change 94J I H O O n P A r K

7 Harmonisation and international approaches to match- fixing 111y u T A A n D O

Part IIIPrevention and enforcement 133

8 ‘Don’t fix it!’: the role of player empowerment in the prevention of match- fixing 135B r e n D A n S C H w A B A n D S T e v e n F I n O C C H I A r O

9 A study of professional players’ perceptions of match- fixing and prevention education strategies in Korea 151y O u n g r y u e L C H u n g , J O O w O n J u n A n D J I n K O O K K I M

10 Police and investigative cooperation on match- fixing: an Australian experience 171C A T H e r I n e O r D w A y

11 On the frontline: the role and operations of the Victoria Police Sporting Integrity Intelligence Unit (‘SIIU’) 187K I e r A n M u r n A n e A n D J A M e S M O L L e r

12 Match- fixing and the roles of public prosecutors in Korea 204S T A C e y S T e e L e , J e S S ( H e e S u n g ) S H I n A n D

S A r A H ( J I n H y u n g ) y A n g

169

Contents vii

Part IVFindings and observations 229

13 Preventing match- fixing and promoting integrity in sport: reflections on experiences in Australia, Japan and Korea 231S T A C e y S T e e L e A n D H A y D e n O P I e

Index 248

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Tables

3.1 Cases where match- fixing was established within kōei kyōgi 45

8.1 Summary of FIFPro black book (Eastern Europe) investigation results 138

8.2 Payment of salaries to players who have been approached to match- fix 139

8.3 Payment of salaries to players who have not been approached to match- fix 139

9.1 general characteristics/trends of the survey respondents 153 9.2 Topics surveyed 154 9.3 Differences in opinion on the legal implications of

match- fixing 1559.4 Differences in sports ethics 1569.5 Differences in players’ understanding of illegal sports

gambling 1569.6 Differences in players’ experiences of match- fixing

suggestions 1579.7 Differences in players’ experiences with accessing illegal

sports gambling websites 1579.8 experiences with match- fixing education 1589.9 Timing of first match- fixing prevention education 1599.10 Sports players’ evaluation of their satisfaction with

match- fixing education 1609.11 Differences in players’ evaluation of their match- fixing

education 1609.12 Frequency of players’ education 1619.13 Duration of players’ education 1629.14 Concerns about the current match- fixing education

system 1639.15 Professional sports players’ perception/thoughts of

match- fixing prevention education 164

171

9.16 Professional players’ suggestions on how to improve the current education system 164

9.17 Players’ recommendations on other appropriate preventative activities 164

9.18 Thoughts on match- fixing education frequency 164 9.19 The focus of match- fixing education 16512.1 National Sports Promotion Act prosecution statistics 216

Tables ix

172

Contributors

Yuta Ando is an expert on sports and law in Japan. He currently works for the Japan Sport Council (‘JSC’), the central organization of the Japanese government specialising in sports promotional activities and the maintenance and enhancement of school children’s health. He is a graduate of the university of Tokyo and studied at the graduate School of Sport Sciences, waseda university and Sciences Po rennes, L’institut d’études politiques de rennes (France). His specialised area of research is the integrity of sport. recently, he worked with the drafting group of the Convention of the Council of europe on the Manipulation of Sports Competitions and after the project he contributed to the establishment of the Sport Integrity unit at the JSC.

Sanjeevan C. Balasingam is the Director for Asia and Oceania at Fédéra-tion Internationale de Football Association (‘FIFA’), world football’s peak body based in zurich, Switzerland. His previous roles include Director of Member Associations and Director of Legal Services at the Asian Football Confederation (‘AFC’). while at the AFC, he estab-lished the AFC’s Integrity unit and Strategic plan to curb match- fixing in Asian football. He has served as a member of FIFA’s Security and Integrity Committee and from 2007 to 2009 was general Secretary of FIFPro’s (the international federation of professional footballers’ associ-ations) Asian Division, also encompassing Oceania. He holds a bach-elor’s degree in law from the university of glamorgan in wales, a Master’s degree in law from Staffordshire university in england and a Master of Laws (Sports Law) from the university of Melbourne.

Young Ryuel Chung, PhD, teaches sport management at Korea university, where he received the best lecturer award (2013–15). He is a director and paper jury member of the Korean Society for Sport Management (2011–present). He is also a member of the human resources commit-tee for the sports team of the goyang City, Korea (2013–present). He has published 16 research papers in relation to marketing and human resource management of professional sports organizations. Prior to joining

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academia, he worked as a pro- athlete agent for five years in Korea and America.

Steven Finocchiaro is a graduate lawyer who holds a Bachelor of Arts (Political Science and International relations; History) and Juris Doctor from the university of Melbourne. under the mentorship of the execu-tive Director of the world Players Association, Brendan Schwab, Steven was formerly a paralegal at Professional Footballers Australia (‘PFA’), the players’ association for Australian footballers based domestically and overseas, and International Player relations (‘IPr’), a boutique law firm specialising in industrial relations and workplace bargaining con-sulting. Steven is a member of the Football Federation victoria (‘FFv’) Disciplinary Tribunal and is active within the Aeolian- Australian community of Melbourne. He is currently graduate In- House Coun-sel at recruitment agency Drake International, specialising in employ-ment law.

Joo Won Jun graduated from woosung university, Korea, with a major in Physical education. She competed nationally and internationally for 20 years as a member of the Korean national women’s basketball team, which came fourth in the 27th Olympic games in Sydney and won gold, silver and bronze medals in the Twelfth, Thirteenth and Fourteenth Asian games respectively. From 2011, she began coaching the Korean national women’s team, which in 2014 won a gold medal at the Seven-teenth Asian games. In 2005, she was recognised by the Korean govern-ment for her achievements and contribution to sports in Korea. She is currently studying a combined Masters and PhD in Physical education at Dankook university, Korea. Her area of research is recreation and sports management.

Keiji Kawai, PhD, is a professor of sport law in the Department of Policy Studies at Doshisha university in Kyoto, Japan. His book, The Legal Status of Professional League Players (2003), was awarded the Okinaga Prize by the Labor research Center. He served as visiting researcher at the university of Massachusetts at Amherst from 2007 to 2009. Dr Kawai is the general Secretary of the Japan Sports Law Association, and is also on the arbitrator panel at the Japan Sports Arbitration Agency. He was an executive board member of the nippon Basket-ball League (‘nBL’) from 2013 to 2015. He is currently conducting comparative studies funded by the Japan Society for the Promotion of Science (‘JSPS’) on labour relations in sport.

Jin Kook Kim graduated from a catholic university with a major in Math-ematics. He later completed a Master’s and PhD in sports management at Korea university. His contribution to sports in Korea was recognised by an award from the Korean Society for Sport Management. He is

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qualified as a Sports Management Coordinator and Big Data Business Analyst. He has published over 20 theses in his areas of interest, which include professional sports marketing, sports brand management and sports statistics. He has lectured at Korea university, namseoul uni-versity, Duksun women’s university, Sangji university and woosong university and is currently a physical education lecturer at Korea uni-versity.

Genevieve Lim, BA(Hons)/LLB, gDipLegPrac, LLM, is a legal officer with the victorian government where she develops and administers legisla-tion relating to major sporting events. She was a national- level fencer and represented Australia at several international tournaments, and was a Director of Fencing victoria for five years and the Administration Dir-ector for the 2010 Commonwealth Fencing Championships. She is a qualified fencing coach and is passionate about increasing opportunities for participation in sport, protecting the integrity of competitions and promoting good governance in sporting organisations. She has com-pleted an LLM at the university of Melbourne focusing on sports law.

Andrew Menz is the Legal and Corporate Affairs Director for CrownBet and previously held the same position at Betfair Australia. Andrew completed a double degree in Law/Commerce (Accounting) at Monash university and has practiced in the wagering industry since joining Betfair in 2010. Andrew is responsible for managing CrownBet’s relationships with regu-lators and sports controlling bodies and providing assistance in the form of wagering trends and betting records to assist to protect the integrity of Australian sport. Andrew is presently completing his Masters of Laws in the sports law programme at the university of Melbourne.

James Moller is a Financial Analyst with the victoria Police Sporting Integ-rity Intelligence unit (‘SIIu’). James is a qualified accountant who has previously worked as a Finance Manager in the university sector, as well as delivering and auditing a number of grant funding programmes with a Federal government department. His current role focuses on the ana-lysis of betting information in relation to victoria Police operations and the assessment and analysis of a range of issues relating to organised crime and the integrity of professional sport in Australia.

Kieran Murnane is a Detective Sergeant at the victoria Police Sport-ing Integrity Intelligence unit. Kieran has been a police officer for 17 years, having previously worked general duties in the western suburbs, divisional criminal investigation duties, as well as taskforces targeting middle- eastern organised crime and outlaw motorcycle gangs. Kieran leads the sport integrity team and has successfully investigated soccer and tennis match- fixing and recently completed a successful harness race- fixing investigation.

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Hayden Opie is a Senior Fellow at the Melbourne Law School where he established and led the teaching of sports law from 1987 to 2017. He has taught and researched in all areas of sports law and is recognised internationally for his work in the field. He now concentrates on sports integrity and has extensive experience in anti- doping, having served as a legal member of the Australian government’s Anti- Doping rule vio-lation Panel from 2010 to 2015. Hayden was a Main Contributor to the 2014 Sorbonne- ICSS report, Fighting against the Manipulation of Sports Competitions. He is the founding President of the Australian and new zealand Sports Law Association and is a member of the Court of Arbitration for Sport.

Catherine Ordway is a Senior Consultant (Sports Law) with Snedden Hall and gallop Lawyers and a Senior Fellow at the Melbourne Law School where she teaches Sports Integrity and Investigations with Hayden Opie. Catherine is an Australian lawyer and has a graduate Diploma in Investigations Management. She has extensive experience in inter-national anti- doping administration, is a sought- after media comment-ator, and has served on numerous ethics and anti- doping committees in Australia and internationally. Currently writing her PhD thesis, Cather-ine has presented and published widely on sports integrity topics, and serves on various editorial boards.

Ji Hoon Park is an attorney- at-law and member of the Korean Bar Associ-ation. He has defended professional athletes in numerous civil and criminal cases and has a deep understanding of sports law and sports sociology. He was a semi- professional baseball player at Seoul national university. As a member of the Sports Culture Institute, he has designed and participated in numerous seminars and symposiums regarding sport law and culture. He is also an in- house counsel for the Korean Sport and Olympic Committee (‘KOC’) (2013–present). He has published a translation of The Legal Status of Professional League Players from Japanese into Korean.

Brendan Schwab, an Australian lawyer, is the executive Director of the world Players Association, the Swiss- based global collective of 85,000 professional athletes through major player associations including the Fédération Internationale des Associations Footballeurs Professionnels (‘FIFPro’), the Federation of International Cricketers’ Associations, the International rugby Players’ Association, eu Athletes, the uS national Basketball Players Association, the uS national Football League Players Association, the national Hockey League Players Association (uS and Canada), the Japanese Professional Baseball Players Association and the Australian Athletes’ Alliance (‘AAA’). He has 25 years’ experience in the collective representation of professional athletes with a large part of

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that dedicated to Asia. He is a former long- serving Chairman of FIFPro Division Asia/Oceania and FIFPro Board member and vice President. He is also a former general Secretary of the AAA and Chief executive of Professional Footballers Australia.

Jess (Hee Sung) Shin completed a Juris Doctor at Melbourne Law School in 2016, and worked as a research assistant at its Asian Law Centre. She holds a Bachelor of Arts majoring in Criminology and Japanese, also from the university of Melbourne.

David Skene is the Head of Legal for Betfair Australia. Before joining Bet-fair Australia in August 2015, David worked as a regulatory lawyer in a commercial law firm for ten years, during which time he acted for Com-monwealth and State regulators and highly regulated entities. He is now responsible for ensuring that Betfair Australia complies with its statu-tory obligations and its integrity agreements with racing and sports con-trolling bodies, working closely with Betfair Australia’s regulator, law enforcement agencies and racing and sports controlling bodies to ensure that the integrity of Betfair Australia’s betting markets is maintained.

Stacey Steele leads the Japanese and Korean Programs at the Asian Law Centre, Melbourne Law School where she has hosted many Japanese and Korean judges, prosecutors and court clerks. Her research inter-ests include the Japanese legal system, law reform, insolvency law in the Asia- Pacific, legal education and banking law. Her publications include Legal Education in Asia: Globalisation, Change and Contexts (2010, routledge, co- edited with K. Taylor), Internationalising Japan: Discourse and Practice (2014, routledge, co- edited with J. Breaden and C. Stevens) and numerous articles. Stacey holds degrees from the uni-versity of Queensland (BA (Jap)), Monash university (MA (Jap)) andthe university of Melbourne (LLB (Hons) and LLM (by thesis)). Shespeaks Japanese and is also a practising lawyer specialising in financialservices law.

Sarah (Jin Hyung) Yang completed a Juris Doctor at Melbourne Law School in 2016, and worked as a research assistant at its Asian Law Centre. She holds a Bachelor of Biomedicine, also from the university of Melbourne.

Kee Young Yeun, PhD, is a Professor of Law at Dongguk university in Seoul, Founding President of the Korean Association of Sports and entertainment Law (1999–2013) and Founding President of the Sport, entertainment, Media & Tourism Arbitration (‘SeMTA’) Forum (2014). He has been vice President of the International Association of Sports Law (IASA) from 2006 and Mediator of the Seoul High Court from 2006. He was Founder and President of the Asia Sports Law

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Contributors xv

Association (‘ASLA’) (2005–07). He was also Dean of the College of Law, Dongguk university (1997–2003), President of the Korean Associ-ation of Buddhist Professors (2001–05), Chairman of the 2006 world religious Leaders’ Conference in Seoul and Board Member and Arbi-trator of the Korea Sports Arbitration Committee (KSAC) (2006–10). He studied Law and Buddhism at Dongguk university in Seoul (LLB, LLM), and received a Dr. jur. (göttingen). He has written many pub-lications about civil law, product liability, sports law, legal philosophy and Buddhism. He recently published Framework of Sports Law (2013, yr Publishing), and edited New Prospects of Sports Law (2013, yr Publishing).

178

Foreword

Professional sport plays a pivotal role in modern society whilst also being a multi- billion-dollar industry. An integral aspect of sport is the uncer-tainty of the outcome of its matches or competitions. Any threat to this would endanger its credibility and public perception as well as jeopardise its very existence. Match- fixing poses the main threat to the sanctity of professional sport and, with the advent of new technology coupled with illegal or unregulated sports betting providers, a global menace has emerged. This book presents legal analysis, comparative evaluation, case studies and empirical findings for practitioners and researchers as well as the numerous stakeholders in sport. It provides a detailed examination of the recent legal strategies employed in this field and their impact on curbing the dangers of match-fixing in professional sport. Australia, Japan and Korea were chosen as subjects because collectively they are Asian sporting powerhouses, both as competitors and hosts of major international events. All three have hosted the Olympic games, and Korea and Japan co- hosted the 2002 FIFA world Cup. Korea will also host the winter Olympic games in 2018 and Tokyo will host the Summer Olympic games in 2020. All three nations are strong performers in the final overall medals tally in the Summer Olympic games, and Australia is or has been world or con-tinental champion in cricket, both codes of rugby, football and netball, to speak of just a few major sporting disciplines. This trio is also an interesting blend of legal jurisdictions that take varied approaches to combating match- fixing and betting on sport. while sports betting is akin to an Australian pastime, gambling in general is pro-hibited under the Japanese Criminal Code. Korea on the other hand, which has faced the most perilous incidents of match- fixing in recent years, has an Act of Parliament to promote and protect the integrity of professional sport in the country. As good team work is an essential prerequisite to on- field success, it is a similar case in order to defeat match- fixing in sport. Thus, close

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Foreword xvii

cooperation between sport governing bodies and both domestic and supra-national law enforcement agencies is a must. There is a wealth of academic, operational and practical knowledge inherent in this book, which is gleaned from leading minds in this sphere of sport, an area that melds together various legal disciplines and jurisdic-tions. Those practising, teaching or researching into match- fixing in sport are bound to find invaluable material within the following chapters. Match- Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond is an interesting and insightful addition to the growing corpus of research into this fascinating, dynamic and important segment of sports law.

Sanjeevan C. BalasingamDirector for Asia and Oceania

Fédération Internationale de Football Associationzurich

May 2017

180

Acknowledgements

First, we thank Professor Pip nicholson, Director, Asian Law Centre, Melbourne Law School, who initially suggested that we collaborate on a project involving Australia and Korea around the theme of major sports events. given recent scandals in these jurisdictions and Japan’s imminent hosting of significant international sporting events, we decided to focus on match- fixing in sport in these three jurisdictions. Our collaboration initially resulted in the Sports Law and Integrity Workshop which brought together leading practitioners, industry repre-sentatives, lawyers, academics and law enforcement representatives to discuss the issue of match- fixing in Australia, Japan and Korea in February 2015. The workshop was generously hosted by international law firm K&L gates at its Melbourne office, and we are particularly grateful for the support of Stephen Meade and Chris nikou, partners at the firm with a keen interest in the law as it relates to sport. we are also grateful for the contributions at the workshop of Andrew godkin and Damien voltz of the Australian national Integrity in Sport unit, Jo Setright of Football Fed-eration Australia and Sergeant Philip van Dissel of the Australian Federal Police, in addition to many of the contributors to this volume. The workshop was also financially supported by the Australia- Korea Foundation and a MLS- Asia research Collaboration grant, enabling us to bring our international guests to Melbourne and provide appropriate lan-guage support. we thank Jess Shin, Sarah yang, yeon Lee, Shojeeb Alam, Hae Jin Kwon and Soo Kyung Lee for language assistance during the workshop, and the unwavering support of Kathryn Taylor, Manager, and Ade Suharto, Coordinator, both of the Asian Law Centre, Melbourne Law School. A further MLS- Asia research Collaboration grant supported the trans-lation work required to complete this volume. we fondly recall the task of bringing together such a mix of languages, cultures and professional back-grounds which was described by one of the publisher’s reviewers as an ‘adventure’. The translation, editorial and communication process has been complex, and extremely rewarding. we could not have undertaken this

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endeavour without the support of our research associates and Melbourne Law School Juris Doctor students, Jess Shin, Sarah yang and Jeremy Latcham. Jess Shin was crucial to the production of a number of chapters and our communication with our Korean authors. Sarah yang provided excellent project management support in addition to her author and research roles. Jeremy Latcham’s attention to detail, knowledge of the style guide and commitment to producing a high quality final product kept us sane. we are also grateful for financial support from the MLS International research visitors Scheme for Professor Kawai’s visit to the Melbourne Law School in 2016 to complete his chapter. we are grateful for various forms of assistance, guidance and inspira-tion provided by distinguished international sports administrator Malcolm Speed AO, academic colleagues Judy Bourke, Lloyd Freeburn and Björn Hessert, the staff of the Melbourne Law Library and especially the MLS Academic research Service, the victorian racing Integrity Commissioner Sal Perna, and Sam walch of Codeware. we also thank yoko Kushida from the Japanese Para- sports Association who attended the workshop and introduced us to yuta Ando. we thank Sandra Pyke, Monash univer-sity, who compiled the index with speed and efficiency as always. Finally, we thank the contributors for their cooperation, patience and intellectually stimulating discussions over the course of this project. This book is dedicated to children who play sport, especially Stacey’s son Charlie. May they play with passion and integrity; without fear or threat of interference.

Stacey Steele and Hayden OpieMay 2017

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Notes on style

Currency

Monetary amounts are generally described in this volume in the currency in which the amounts were originally specified for transparency and longevity purposes. For reference, at the time of writing (May 2017), the following currencies were equivalent to uS$1. The monetary amounts referred to in this volume, however, may relate to a period of time with different currency conversion rates than those listed below.

• AU$: 1.346• €: 0.900• GB£: 0.768• KRw: 1130.360• JP¥: 111.106

Naming conventions

references to ‘Korea’ in this volume are to the republic of Korea, commonly known as South Korea. All individual names, including Japanese and Korean names, appear with a person’s given name first and family name last. Korean names are generally written according to their common spelling in english (e.g. ‘Park’, which is transliterated as ‘Bak’ under the revised romanisation of Korean system). The names of people are unitalicised except where within a longer extract of romanised text (e.g. within the romanised title of a Korean or Japanese newspaper article in an endnote citation).

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transliterations and translations

In this volume, Korean words are romanised under the revised romanisation of Korean system, and Japanese words are romanised under the Modified Hepburn romanisation system. romanised Korean and Japanese words appear in italics, except as noted below. words that are already a normal part of the english lexicon appear according to their regular english usage (e.g. Seoul, sumo), without italics or diacritics. Proper nouns such as the names of organisations appear in the format preferred by the organisation itself. Specific to Chapter 7 by yuta Ando, references originally written in Bulgarian, greek, Mandarin Chinese and russian have been romanised according to the Library of Congress (uS) romanisation tables.1

Although research on Korean legislation for this volume was conducted by reading the official, Korean- language legislation, translated excerpts from Korean legislation in this volume are primarily direct quotations from the unofficial english translations provided by Korea’s Ministry of government Legislation.2

Notes1 Available online at Library of Congress 2017, ALA- LC Romanization tables,

www.loc.gov/catdir/cpso/roman.html.2 Available online at Korea Ministry of government Legislation, National Law

Information Center, www.law.go.kr/eng/engMain.do.

184

Abbreviations

ACIC Australian Criminal Intelligence CommissionAFC Asian Football ConfederationAFL Australian Football LeagueAFP Australian Federal PoliceAML/CTF Act Anti- Money Laundering and Counter- Terrorism

Financing Act 2006 (Cth)Aru Australian rugby unionASADA Australian Sports Anti- Doping AuthorityAuSTrAC Australian Transaction reports and Analysis CentreCA Cricket AustraliaCAS Court of Arbitration for SportCon Ops Concepts of OperationsFFA Football Federation AustraliaFIFA Fédération Internationale de Football AssociationGR Act Gambling Regulation Act 2003 (vic)Hrv Harness racing victoriaICC International Cricket CouncilICSS International Centre for Sport SecurityIGA Interactive Gambling Act 2001 (Cth)IOC International Olympic CommitteeIP Internet ProtocolJOC Japan Olympic CommitteeJSA Japan Sports AgencyJSC Japan Sport CouncilMACC Malaysian Anti- Corruption CommissionMACC Malaysian Anti- Corruption Commission Act 2009MeXT Ministry of education, Culture, Sports, Science and

Technology (Japan)MgA Malta gaming AuthorityMou Memoranda of understandingMSe 2015 major sporting events 2015nBL national Basketball League (Australia)

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Abbreviations xxiii

nISu national Integrity in Sport unit (Australia)nPB nippon Professional Baseball (Japan)nrL national rugby League (Australia)nSwLrC new South wales Law reform CommissionOrIC Office of the racing Integrity Commissioner (victoria)POI persons of interestSCBs sport controlling bodiesSIIu victoria Police Sporting Integrity Intelligence unitTA Tennis AustraliaTIu Tennis Integrity unit, International Tennis FederationueFA union of european Football AssociationsvPL victorian Premier League

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Chapter 10

Police and investigative cooperation on match- fixingAn Australian experience

Catherine Ordway1

Introduction: the roles of the Australian Federal Police in combating match- fixing

This chapter analyses the Australian Federal Police’s (‘AFP’) approach to match- fixing and reflects on its publicly reported experiences dealing with the threat of match- fixing at selected major international sporting events hosted in Australia in 2015. The Asian Football Confederation (‘AFC’) men’s Asian Cup (‘Asian Cup’) involved 16 national teams in 32 matches over five Australian cities between 9 and 31 January; the International Cricket Council (‘ICC’) men’s World Cup (‘ICC World Cup’) involved 14 teams playing in 49 matches over 14 venues across Australia and New Zealand from 14 February to 29 March; and the International Netball Federation women’s Netball World Cup was played in Sydney by 16 teams in 64 matches from 7 to 16 August. These major sporting events (‘MSE 2015’) together attracted an estimated viewing audience of over a billion fans worldwide.2 The MSE 2015 serves as a useful case study and high-lights the coordinating role that a national organisation such as the AFP can play, particularly in a diversified federal system such as Australia’s. The numerous government, law enforcement, and sport stakeholders with different perspectives and agendas required strong leadership, particularly around clarity of roles during, and in the lead up to, these major events. The author assisted the AFP as an independent consultant to develop and then co- facilitate event- based scenario planning sessions for the various MSE 2015 stakeholders and this chapter draws on that experience. This chapter begins by first explaining the jurisdiction and role of the AFP in Australia’s federal system. Match- fixing is a relatively new criminal offence in Australia.3 Specific match- fixing legislation empowers State and Territory police to investigate this crime type. The AFP has jurisdiction to provide support where there is a nexus to money laundering and the inter-national criminal environment which comes within its authority. The AFP also assists in developing national frameworks. Second, the chapter con-siders why the AFP prioritised its involvement in preventing and deterring

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match- fixing as part of its overall strategy. Australian sporting codes and events are vulnerable to match- fixing for several reasons, including: the perception that Australian sport is uncorrupted, the close time zone to Asia and the huge volume of online betting, particularly originating from the Asian region.4 The harm to sport where match- fixing is involved includes reputational issues resulting in the loss of public confidence and sponsors. Third, the chapter analyses the AFP’s approach to match- fixing in the context of the MSE 2015, which presented a complex environment of opportunities and threats. The chapter demonstrates that the AFP, which also participated in Avi-ation Security and Border Control scenario planning, played a key role as the lead federal agency to marshal the national government’s efforts against match- fixing during the MSE 2015. The AFP worked with other law enforcement, government agencies and sporting codes to develop a collective response to protect the integrity of the MSE 2015. Importantly for the find-ings in this chapter, the AFP strategies focused heavily on prevention and disruption activities rather than investigation. As the chapter highlights, information sharing between law enforcement and sporting codes was the crucial element for collaboration. The chapter concludes that the focus on prevention and disruption was successful. It is understood that law enforce-ment worked through several incidents with their sport partners, including proactively targeting and disrupting known match- fixers. Following the completion of the events, the AFP concluded, from information gathered from all jurisdictions and agencies, that there was no evidence of match- fixing, including no spot- fixing, during the MSE 2015.

AFP leadership and coordination in Australia’s federal system

Formal public–private relationships between governments and sports organisations are now obligatory for any proposal to host a major inter-national sporting event. Submitting a bid book containing detailed plans, funding and guarantees from local, regional and national governments is a common requirement in the competitive world of major event hosting. As part of the bid process to win the right to be a host nation, the Australian Commonwealth and relevant State Governments guaranteed that innov-ative solutions would be developed to protect the MSE 2015 from integrity threats.5 To secure the right to host the MSE 2015, the Commonwealth Government committed to guarantees including the enforcement of offences pertaining to intellectual property crime, money laundering and other criminal activity.6 The Commonwealth Government does not, however, have the constitutional power to create national legislation to criminalise match- fixing, and the AFP does not have direct jurisdiction in relation to match- fixing.

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Investigative cooperation in Australia 173

The AFP’s role in combating match- fixing during the MSE 2015 was facilitated by a national policy and the AFP’s jurisdiction in relation to other criminal activities such as money laundering and criminal activity with an international element. In June 2011, the Commonwealth, State and Territory Sports Ministers jointly endorsed the National Policy on Match- Fixing in Sport (‘Policy’).7 With reporting lines to the Common-wealth Minister for Sport, this Policy is monitored and supported by the National Integrity in Sport Unit (‘NISU’). The NISU was established in October 2012 and is located within the Commonwealth Department of Health.8 The State and Territory Governments implemented the Policy in a somewhat harmonised manner in their respective jurisdictions in the lead up to the MSE 2015, although the conduct prohibited under the new State and Territory criminal laws differs from the definition of match- fixing under the national Policy.9 A joint working group was also established by the NISU and the AFP in 2014 as a mechanism to discuss and develop integrity related strategies, policies and procedures, and to allow for other-wise confidential intelligence information to be accessed around the time of the MSE 2015.10

Although each State and Territory in Australia has a separate police service, the AFP is the principal law enforcement agency for the Common-wealth Government, and it conducts both community policing in the Aus-tralian Capital Territory and investigates offences against federal law in Australia and overseas.11 The AFP’s Corporate Plan 2016–17 describes it as ‘the Australian Government’s primary policing agency’ and ‘a key member of the Australian law enforcement and national security community, leading policing efforts to keep Australians and Australian interests safe both at home and overseas’.12 The AFP’s mission of ‘dynamic and effective’13 law enforcement nationally requires a coordinated approach across the eight police services, in addition to the Australian Criminal Intelligence Commis-sion.14 The AFP’s primary purpose is ‘to enforce Commonwealth criminal law, contribute to combating organised crime and protecting Common-wealth interests from criminal activity in Australia and overseas’.15 The AFP provides support to investigations in each Australian State or Territory by, for example, providing intelligence and conducting overseas inquiries. These aspects of the AFP role were important drivers in its participation in preventing match- fixing during the MSE 2015. By employing the core principles of ‘prevention, deterrence, partnership and innovation’, the AFP works to counter terrorism and promote national security.16 The Austral-ian community is also familiar with the AFP regularly reporting on its involvement in disrupting and detecting Commonwealth offences, such as serious fraud against the Commonwealth, and transnational crimes such as drug importation, money laundering, terrorism and people smuggling.17

The intersection of money laundering and match- fixing was also a key reason that the AFP was able and willing to employ its resources nationally

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during the MSE 2015, despite match- fixing not being a Commonwealth crime, and therefore not directly within the AFP’s ‘operational emphasis’.18 Sport has traditionally managed its own integrity and behavioural issues through internal regulations and tribunals, without recourse to law enforcement agencies, or domestic courts. This segregation however has been shifting, and the recent AFP initiative to assist in protecting the MSE 2015 was reflective of this development. The detection and prevention of money laundering and the financing of terrorism are key focus areas for the AFP, and the Minister for Justice, the Hon Michael Keenan MP, was cognisant that unregulated global sports betting markets, including online betting, presented opportunities for organised crime to launder funds, including through match- fixing. Accordingly, the AFP’s involvement in MSE 2015 complemented its core purpose.19

Money laundering is a method used by criminals to make illegitimate money sources appear legitimate.20 Criminals use professional launderers to legitimise their illicit profits and diversify their activities across legal and illegal businesses, thereby reducing the risk of successful law enforcement intervention. The negative impact of organised crime and its associated money laundering is severe and collectively threatens individuals, com-panies, services, national economies and the security of governments in multiple ways.21 Lax regulation means that gambling is one of the tradi-tional methods of laundering money worldwide.22 Criminals can transfer money between casinos globally outside traditional banking reporting systems, for example. The provision of credit by casinos allows for phys-ical or electronic monetary values to be used in one country while debts are paid via poorly regulated casinos in another. Often gambling debts are paid in full by casino gaming chips.23 Official estimates suggest that almost US$3 billion per week is laundered through sports betting.24 Transnational organised crime groups view money laundering via online sports betting as an easy, cost- effective method with little risk of detection. The so- called ‘hyper- globalisation’25 phenomenon in sport also requires a national approach to match- fixing. This phenomenon has been caused through the international expansion of events and tours, many of which are digitally broadcast. This globalisation creates a global market for gam-blers, which is enhanced by the growth in sports gambling operators’ spon-sorship and marketing saturation,26 and the breadth of online gambling participation modes.27 These circumstances create opportunities for trans-national criminals and present complex problems for jurisdictionally bound legislators, regulators and law enforcers. The federal system in Aus-tralia makes combating match- fixing challenging, because the criminalisa-tion of match- fixing is based on State and Territory legislation. Transnational online gambling operators have also made laundering even more profitable than through traditional methods.28 Unregulated and under- regulated online sports betting is a recent development in this

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environment and contributes to betting being an easy, cost effective method to launder money. The amount of money being laundered through sports betting is ever- increasing and already comprises more than 15 per cent of estimated total global illegal income.29 Most of the betting takes place in Asia, primarily on football and cricket.30 Unregulated and under- regulated online sports betting sites, many controlled by Asian organised crime entities, actively facilitate money laundering. This method is low risk because it is practically impossible for jurisdictional and technical reasons for any one law enforcement agency to prosecute unregulated and under- regulated online bookmakers based in foreign locations. These online sports betting sites have the capacity to launder up to 100 per cent of global organised crime proceeds at much lower cost, and almost no risk, as compared with other laundering methods, particularly if the results have been guaranteed in advance through fixing. Police investiga-tions internationally have demonstrated that criminals have infiltrated sport (or are themselves officials, athletes, coaches or referees)31 to secure an agreed action (such as a red card, no ball or double fault) or outcome (such as a win, margin or draw) for an agreed sum or other inducement such as drugs, prostitutes or deferment of gambling debts to ensure that their so- called investment is safe and, ideally for transnational criminal organisations’ purposes, enhanced. In some cases, those markets are estab-lished by criminals primarily for the purpose of money laundering.

The risk of match- fixing exacerbated by betting

There is currently no internationally agreed approach or definition for match- fixing, as distinct from the long- established, and internationally har-monised, approach taken to combat doping in sport.32 The growing aware-ness that sports results were being determined prior to the event forced sports organisations to be proactive, particularly over the last decade. Hill’s seminal research, published in his 2008 book The fix: soccer and organized crime, established through hundreds of in- depth interviews with players, referees, coaches, fixers and gamblers that football and cricket are the two sports most under threat from match- fixing in the world.33 By June 2010, the then- president of the International Olympic Committee (‘IOC’), Jacques Rogge, expressed a concern, also increasingly being voiced else-where within the Olympic Movement, that ‘cheating driven by betting is undoubtedly the biggest threat to sport after doping’.34

The link made to gambling by the IOC is instructive, and hints at the further incentive for law enforcement involvement in the solution. In early examples of match- fixing, the motivation for the fix appears to have been financial;35 that is, prize money or in other cases relating to putting the team or player into a better position for future rounds or seasons (so- called ‘tanking’),36 which are arguably challenges for sports organisations, and

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not law enforcement agencies, to address. ‘Improperly influencing the outcome or any dimension of a sports event for financial or personal benefit’37 is not new. However, as Anderson suggests, developments in sports gambling, and more recently the ease of accessibility and scope of betting products created through (particularly unregulated and under- regulated) online gambling operators, require a distinction to be drawn between betting- related ‘gambling- led corruption’ and non- betting related match- fixing.38 Anderson also highlights that the Australian framework only criminalises match- fixing if it corrupts betting outcomes. Thus, a bribe to lose a match might be match- fixing in a colloquial context, but not be a criminal offence in most Australian States and Territories because of the absence of gambling.39 The conduct may, however, be an offence under the applicable sport rules. Deliberately losing a match to obtain a more favourable position in a play- off or just resting several players ahead of an important game resulting in a loss to a lower ranked team is not necessarily regarded as match- fixing by many commentators.40 In contrast, although linked to gambling, the practice of ‘pitch or court- siding’ is not regarded as match- fixing, and instead results in the offender’s ejection from the sporting premises under ticketing conditions.41

Moreover, the evolution and expansion in the sports betting market does not directly create a risk to sports integrity, and some commentators would argue there have also been benefits.42 This view should be con-trasted with concerns frequently aired about the partnership between sports organisations and gambling operators43 and the social harm caused by gambling more broadly.44 Match- fixing raises the issue of gambling where it impacts on sporting outcomes, that is, the results of a game or an event within a match. Sport integrity is at risk because professional gam-blers and, increasingly, transnational criminal organisations, are not satis-fied by the uncertainty of outcome that characterises sport competitions.45 Instead, unscrupulous gamblers and betting operators are happy to exploit the vulnerable and the greedy to ensure the odds are entirely in their favour. Law enforcement agencies have recognised that money from crimi-nal endeavours may be quickly and easily laundered through under- regulated or unregulated, and even regulated, sports betting markets.46

MSE 2015 case study: coordination and cooperation

In the context of the high- level national and international governmental dialogue around possible solutions for gambling- related threats to sport integrity, the AFP began to assess and quantify what it ultimately con-sidered to be the severe threat posed to Australia by transnational criminal organisations’ involvement in money laundering via unregulated online sports betting. The AFP collected intelligence, built collaborative networks,

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and first assisted with a match- fixing investigation in November 2013.47 The potential harm which match- fixing posed during the MSE 2015 was identified by both sports organisations and law enforcement agencies as a priority and was sought to be minimised through an AFP collaborative initiative. The sports industry has recognised for some time that it must work closely with governments and agencies with access to relevant information, knowledge, powers and resources to protect sport from various integrity threats. In relation to match- fixing, for example, INTER-POL accepts that ‘no organisation can tackle the problem of match- fixing alone’.48 Further, INTERPOL advocates for strategies which ‘incorporate partnerships’ between national ‘associations and betting organizations as well as public authorities including law enforcement and regulators’.49

Moreover, at the time, Australian men’s sport faced unprecedented integrity crises. The Australian Sports Anti- Doping Authority (‘ASADA’) was investigating Australian Football League and National Rugby League clubs arising out of the Australian Crime Commission’s report claiming ‘widespread use of prohibited substances in professional sport’,50 the Foot-ball Federation Australia and Victoria Police broke up a gambling ring that was corrupting the outcomes of lower- level football (soccer) matches for financial gain, there were public scandals surrounding the conduct of members of the men’s Olympic swimming team, and admissions of doping in cycling.51 These events heightened the reputational risks associated with the MSE 2015. The AFP’s efforts also confirmed that not only was there growing interest by groups of transnational criminal organisations, such as Asian triads, in unregulated sports betting and match- fixing, but there were mul-tiple links between online sports betting and transnational criminal syndi-cates, casino junkets and influential political and business entities in Asia and Europe. Some of these groups also had business and family links to Australia, and it was possible that the Asian Cup and ICC World Cup would provide the impetus for transnational criminal organisations to increasingly focus on teams participating in these events. In addition to the threat already posed to the public’s and sponsors’ confidence in all sport-ing events through illegal betting, money laundering and match- fixing, major sporting events are particularly vulnerable to organised crime as they generate a huge betting volume. The volume and breadth of betting interest in football and cricket worldwide, coupled with the extent of match- fixing allegations, betting fraud investigations and corruption and governance failings in these sports, led the AFP to establish a dedicated sports integrity team under Major Events Intelligence.52 In comparison, both the sport of netball generally, and the World Cup event itself, were considered to be of such low risk as to not require dedicated AFP resources. From 1 July 2014, the AFP Integ-rity in Sport Team, supported by an AFP civilian recruit with elite sport

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experience, drew on resources of police in Australia and New Zealand as the MSE 2015 drew closer. For the cricket and football events then, the AFP initiative identified potential persons of interest, and facilitated efforts to reduce the threat to sports integrity through inter- agency (law enforce-ment and sport) cooperation. The AFP developed a Concept of Operations (‘ConOps’) outlining its intentions to address the prevention, disruption and prosecution of organ-ised crime involvement in sport through money laundering, illegal betting, match- fixing and related offences in the lead up to, during and following the MSE 2015. This ConOps highlighted that protecting sport requires a multifaceted approach, combining the efforts of sports, law enforcement and government agencies. A focus on investigating money laundering and the prevention and disruption of illegal betting, match- fixing and related offences were identified as necessary to protect major sporting events and maintain faith in the ‘contest’ – a key element in sport – by the public and sponsors. The intelligence services tapped into international networks and implemented border security disruption strategies with the Common-wealth Immigration and Customs departments (now the Australian Border Force). Strategies included proactively targeting and disrupting persons of interest in terms of match- fixing and related offences and referring them to the then Department of Immigration and Border Protection for inclusion on their person and document alert systems.53

The timely and lawful sharing of information and intelligence was a key plank to the strategy. Memoranda of Understanding (‘MoUs’) were developed to enhance this process, and to supplement the existing arrange-ments with the New Zealand Police and Australian State and Territory policing agencies. The AFP entered into MoUs on cooperation and information exchange with stakeholders, including the International Cricket Council,54 Sportradar55 and others.56 The MoUs demonstrate the existence of a formal relationship and enable the AFP to deal directly with the sporting organisation’s integrity unit, and share information securely with trusted people. MoUs also set out various legislative obligations of the AFP to collect, store, use and disclose information. This information in certain circumstances may be accessed by external bodies such as the courts, ombudsmen and privacy commissioners.

Outcomes and recommendations

The MSE 2015 events were heralded as a success by players, politicians and the public alike.57 There was also no evidence of match- fixing or related offences.58 Research into contemporary policing bodies suggests that success can be measured by organisational credibility, stakeholder acceptance, inter- agency cooperation and the development of personnel.59 The AFP and other stakeholders’ focus on preventing and disrupting

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attempts to match- fix during the MSE 2015 reflect these contemporary policing benchmarks and highlight the important coordinating role that a national organisation can play in a federal system such as Australia’s. To ensure the continued success of major events held in Australia, the NISU and the AFP needs to continue to build on this experience and play a role in implementing identified learnings. Most crucial in achieving organisational credibility for the parties involved, and acceptance by each of the stakeholders, is inter- agency cooperation through partnership building. The MSE 2015 highlighted the success that a coordinated and partnership- driven focus on match- fixing may bring. The ‘at risk’ sports would benefit from working more closely together throughout the year, even without hosting a major event. Meetings and invi-tations to local events or conferences, inclusion on media and mailing lists, and the provision of annual reports, help to promote greater mutual under-standing of compatible roles, and not insignificant challenges, and can lead to deeper trust and solution- focused anti- corruption outcomes. To achieve this closer cooperation, particularly in the lead up to major events, partnerships need to be cultivated proactively at many levels – from the executive equivalents, through to the various operational positions, and including national and international contacts. These partnerships need to go beyond the existing law enforcement and government agency struc-tures, and include other sport industry stakeholders, such as player associ-ations, bookmakers (online and shopfront) and regulatory bodies such as those overseeing sports integrity, betting and telecommunications. Formal documentation of these relationships should be based on a con-sensus between partners, ideally via information- sharing MoUs. MoUs were acknowledged as being critical in the success of the MSE 2015 anti- corruption strategies. In some settings there may be legislative or policy barriers preventing information- sharing. The earlier that such obstacles are identified, the quicker they may be removed or minimised. In the Austral-ian context, Commonwealth legislation linking sports integrity and the use of other legislation, such as telecommunications and betting- related instru-ments, could assist the AFP to target criminal methodologies. Such meas-ures may include broadening the Telecommunications Act 1997 (Cth) to ensure that mobile phone and internet service providers are prohibited from facilitating match- fixing.60

Sharing information between government agencies is consistent with the ‘Whole of Government’ approach,61 and in this case study it was crucial to include private bodies in the information loop, including appropriately cleared personnel within the organising committees of the relevant sporting bodies. The direct tripartite relationship between law enforcement, the host sport integrity team and Sportradar as the betting monitoring service for the MSE 2015, was very important to the success of the mission. Pre- Games sharing of Persons of Interest (‘POI’) lists and other information on

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potential risk methodologies was a key tool for future events.62 Law enforcement agencies, in consultation with NISU, can also assist sporting organisations to develop whistle blowing mechanisms to provide players with confidential, anonymous, reporting options. Games- time integrity hubs which facilitate the co- location of these stakeholders during events ensure a timely and complete information sharing, evaluation and inquiry generation process. This geographical proximity enables information sharing, including persons- of-interest lists, which are central to disruption strategies and facilitates effective information sharing.

Conclusion

The temptation to pay a participant to ‘throw’ a sporting match is not new. Far from it merely being another side- effect of the rampant growth in the commercialisation of modern sport as has been suggested by some commentators,63 there are many examples of cheating in ancient times.64 Key modern differences include the intersection of illegal and unregulated and under- regulated online betting, hyper- globalisation of sport and money laundering by transnational organised criminals. These drivers led to the AFP’s initiative to reduce the threat to sports integrity through broadly scoped inter- agency cooperation as part of Australia’s initiative to disrupt and prevent match- fixing during the MSE 2015. It will be of great benefit to Australia as a sporting integrity island that these collaborative tools should continue to be utilised all year round, particularly for those sports of greatest interest to gamblers, and those who seek to pervert sport for criminal gain.

Notes 1 The author acknowledges the support of several AFP officers. 2 This estimate is based on anecdotal evidence. For cricket, it is claimed that the

tournament was watched by more than 1.5 billion people worldwide: see Press Trust of India 2015, ‘ICC Cricket World Cup 2015 significantly boosted eco-nomies of co- hosts Australia and New Zealand’, Cricket Country, 30 June, www.cricketcountry.com/news/icc- cricket-world- cup-2015-significantly- boosted- economies- of-co- hosts-australia- and-newzealand-300850. In relation to foot-ball see, e.g. Local Organising Committee 2015, Asian Cup smashes audience numbers, Football Federation Australia, 30 January, www.footballaustralia.com.au/article/asian-cup- smashes-audience- numbers/pp. 1ebmxdio8k1gibyf93a54dx.

3 See Opie and Lim in this volume. 4 In Canberra in 2009, the Australian and New Zealand Sports Law Association

(ANZSLA) annual conference’s keynote speaker, Dr Declan Hill, called on those involved in sport in Australia and New Zealand to take the risk of match- fixing seriously, particularly in light of the threat from Asian gambling and organised crime syndicates. Dowling, J., 2009, ‘Breaking the rules’, The Sydney Morning Herald, 7 November, www.smh.com.au/national/breaking- the-rules- 20091106-i28k.html.

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5 For football see, e.g. AFC and Football Federation Australia, AFC Asian Cup Australia 2015: information guide, p. 2, www.ahavic.com.au/Literature Retrieve.aspx?ID=100313&A=SearchResult&SearchID=94753213&ObjectID=100313&ObjectType=6; Football Federation Australia 2010, ‘Australia’s bid to host the 2015 AFC Asian Cup’, 21 October, www.footballaustralia.com.au/article/australias- bid-to- host-2015-afc- asian-cup/1dycpy337r16q1oop27e6qcu55. For netball see, e.g. Netball World Cup Sydney 2015 2013, ‘Sydney to host the 2015 Netball World Cup’, 11 November, http://nwc2015.com.au/News/sydney- to-host- 2015-netball- world-cup- 1. For cricket see, e.g. Worldcup.com.au, 2015 Cricket World Cup, www.worldcup.com.au/cricket- world-cup/2015-cricket- world-cup; ICC Cricket World Cup 2015, FAQ, www.icc-cricket.com/cricket-world-cup/about/277/faq.

6 Commonwealth Government refers to the Australian federal or national gov-ernment and references in this chapter to the Commonwealth refer to the federal system of Australian government.

7 Australian Government Department of Health 2014, ‘National policy on match- fixing in sport’, 11 February, www.health.gov.au/internet/main/publishing.nsf/Content/national- policy-on- match-fixing- in-sport. See also Godkin, A., 2013, National Integrity of Sport Unit, 27 November, www.ors.sa.gov.au/__data/assets/pdf_file/0004/148522/National- Sport-Integrity- Unit-Presentation.pdf. Sport New Zealand adopted a match- fixing policy in April 2014: Sport New Zealand 2014, New Zealand policy on sports match- fixing and related corruption, April, www.sportnz.org.nz/assets/Uploads/attachments/managingsport/integrity/New- Zealand-policy- on-sports- match-fixing- and-related- corruption. pdf.

8 The NISU works closely with the Australian Criminal Intelligence Commission (ACIC). The ACIC was established on 1 July 2016 following the merger of the Australian Crime Commission and CrimTrac: Minister for Justice 2015, ‘New super agency to tackle emerging threats’, 5 November, www.ministerjustice.gov.au/Mediareleases/Pages/2015/FourthQuarter/5-November- 2015-New- super-agency- to-tackle- emerging-threats.aspx. See also Murnane and Moller in this volume.

9 Match- fixing in the Australian National Policy is defined as:

(a) the deliberate fixing of the result of a contest, or of an occurrence withinthe contest, or of a points spread; (b) deliberate underperformance; (c) with-drawal (tanking); (d) an official’s deliberate misapplication of the rules ofthe contest; (e) interference with the play or playing surfaces by venue staff;and (f ) abuse of insider information to support a bet placed by any of theabove or placed by a gambler who has recruited such people to manipulatean outcome or contingency.

(Australian Governments 2011, National policy match- fixing in sport, 10 June, p. 2, www.health.gov.au/internet/main/publishing.nsf/Content/F6DB8637F05C9643CA257C310021CCE9/$File/National%20Policy%20on%20

Match-Fixing%20in%20Sport%20(FINAL).pdf )

See also Opie and Lim in this volume. In NZ, the Crimes (Match- Fixing) Amendment Act was enacted in 2014, to extend the scope of Section 240 of the Crimes Act 1961.

10 In the 2013–14 Budget, the Commonwealth Government committed to provide $3 million over three years to further strengthen the Major Sporting Events Taskforce within the Department of Regional Australia, Local Government, Arts and Sport, to help ensure the successful staging of the 2015 Cricket World Cup and the Asian Football Cup: Commonwealth of Australia 2013, Budget

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paper no. 2: 2013–14, 14 May, p. 196, www.budget.gov.au/2013-14/content/bp2/download/BP2_expense.pdf.

11 Australia.gov.au, Police and crime prevention, www.australia.gov.au/information- and-services/public- safety-and- law/police- and-crime- prevention.

12 Australian Federal Police, AFP corporate plan 2016–17, www.afp.gov.au/corporate- plan-2016-17.

13 Australian Federal Police, Our organisation, www.afp.gov.au/about- us/our- organisation.

14 In relation to ACIC, see above n. 8.15 Australian Federal Police, Corporate plan 2015–19, www.afp.gov.au/sites/

default/files/PDF/AFP- Corporate-Plan- 2015-2019.pdf.16 Australian Federal Police, What we do, www.afp.gov.au/what- we-do.17 Australian Federal Police, Media releases, www.afp.gov.au/news- media/media-

releases.18 AFP, www.afp.gov.au/about- us/our- organisation. The AFP has a community

policing role in the ACT, which means that its jurisdiction would include enforcing ACT criminal offences against match- fixing.

19 See Australian Federal Police 2015, AFP annual report 2014–15, 16 October, www.afp.gov.au/afp- annual-report- 2014-15. See also Minister for Justice 2015, ‘Serious and organised crime costing Australia $36 billion’, media release, 18 December, www.ministerjustice.gov.au/Mediareleases/Pages/2015/FourthQuarter/18-December- 2015-Serious- and-organised- crime-costing- Australia-36-billion.aspx.

20 Eligo National Task Force, ‘Money laundering’, www.austrac.gov.au/sites/default/files/documents/eligo_ml_fact_sheet.pdf; Australian Transaction Reports and Analysis Centre 2011, Money laundering in Australia, www.austrac.gov.au/publications/corporate- publications-and- reports/moneylaundering-australia- 2011.

21 Unger, B. and Busuioc, E.M., 2007, The scale and impacts of money launder-ing, Edward Elgar Publishing.

22 See ‘Case studies: gambling’, in Australian Transaction Reports and Analysis Centre 2013, AUSTRAC typologies and case studies report 2013, pp. 61–64, www.austrac.gov.au/sites/default/files/documents/typ13_full.pdf.

23 See Richards, J.R., 1998, Transnational criminal organizations, cybercrime, and money laundering: a handbook for law enforcement officers, auditors, and fin-ancial investigators, CRC press; Schopper, M.D., 2002, ‘Internet gambling, electronic cash and money laundering: the unintended consequences of a monetary control scheme’, Chapman Law Review, vol. 5, no. 1, pp. 303–330; Reuter, P., 2004, Chasing dirty money: the fight against money laundering, Peterson Institute; Schneider, F. and Windischbauer, U., 2008, ‘Money launder-ing: some facts’, European Journal of Law and Economics, vol. 26, no. 3, pp. 387–404.

24 A key report estimated that ‘$US140 billion is laundered every year through sports bets, which means that more than 10% of the worldwide revenue of organised crime would gain the appearance of legality in this way’: University Paris 1 Panthéon-Sorbonne and International Centre for Sport Security 2014, Protecting the integrity of sport competition: the last bet for modern sport, May, p. 29, www.theicss.org/wp- content/themes/icss- corp/pdf/SIF14/Sorbonne- ICSS%20Report%20Executive%20Summary_WEB.pdf?lbisphpreq=1.

25 This phrase is used in the Protecting the integrity of sport competition report, and contemplates an extreme scale, ‘accompanied by a lack of regulation, control and coordination between States’: ibid., p. 10.

26 Operators involved in sponsorship and marketing are often well- regulated and working in partnership with the sports organisations. See also Thomas, S., Lewis, S., Duong, J. and McLeod, C., 2012, ‘Sports betting marketing during

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sporting events: a stadium and broadcast census of Australian Football League matches’, Australian and New Zealand Journal of Public Health, vol. 36, no. 2, pp. 145–152.

27 Woolley, R., 2003, ‘Mapping internet gambling: emerging modes of online participation in wagering and sports betting’, International Gambling Studies, vol. 3, no. 1, pp. 3–21.

28 Fiedler, I., 2012, Online gambling as a game changer to money laundering?, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2261266.

29 In 2009, the United Nations Office for Drugs and Crime (UNODC) estimated that transnational organised crime generates US$870 billion a year: United Nations Office on Drugs and Crime 2017, Transnational organized crime: the globalized illegal economy, www.unodc.org/toc/en/crimes/organized- crime.html.

30 University Paris 1 Panthéon-Sorbonne and International Centre for Sport Security, above n. 24.

31 Hill, D., 2009 ‘How gambling corruptors fix football matches’, European Sport Management Quarterly, vol. 9, no. 4, pp. 411–432.

32 See Ordway, C. and Opie, H., 2017, ‘Integrity and corruption in sport’, Critical issues in global sport management, Routledge, pp. 38–65.

33 Hill, D., 2008, The fix: soccer and organized crime, McClelland and Stewart Limited.

34 IOC News 2010, ‘Sports movement agrees on unified strategy to tackle irregu-lar betting’, 24 June, www.olympic.org/news/sports- movement-agrees- on-unified- strategy-to- tackle-irregular- betting. Chappelet cites evidence for the IOC’s proactive stance from 2007: Chappelet, J.L., 2015, ‘The Olympic fight against match- fixing’, Sport in Society, vol. 18, no. 10, pp. 1260–1272.

35 In 2014, historians deciphered an ad 267 contract where a wrestler had agreed to yield for ‘3,800 drachmas’ (approximately the price of a donkey at the time): Rathbone, D.W., ‘5209. Contract to lose a wrestling match’, in Henry, W.B. and Parsons, P.J. (eds.), 2014, The oxyrhynchus papyri: volume LXXIX, Egypt Exploration Society, pp. 163–167; Jarus, O., 2014, ‘Body slam this! Ancient wrestling match was fixed’, Live Science, 16 April, www.livescience.com/44867-ancient- wrestling-match- was-fixed.html.

36 E.g. in 1900 Burnley FC offered Nottingham Forest FC a bribe to deliberately lose a so- called dead rubber to ensure Burnley would not be relegated the fol-lowing season: Inglis, S., 1985, Soccer in the dock: a history of British football scandals 1900 to 1965, Willow Books, pp. 8–10. Four women’s badminton doubles pairs were expelled from the London 2012 Olympic Games for playing to lose, and thereby secure themselves an easier draw: Zaksaite, S., 2013, ‘Match- fixing: the shifting interplay between tactics, disciplinary offence and crime’, The International Sports Law Journal, vol. 13, no. 3, pp. 287–293.

37 Heron, H. and Jiang, C., 2010, ‘The gathering storm – organised crime and sports corruption’, Australian and New Zealand Sports Law Journal, vol. 5, no. 1, pp. 99–118.

38 See, e.g. Anderson, J., 2012, ‘Gambling- led corruption in international sport: an Australian perspective’, International Sports Law Journal, vol. 1–2, pp. 3–6.

39 See Opie and Lim in this volume.40 In Australian Rules Football (AFL), for example, some coaches support the

process of so- called ‘blooding’ for young players; rather than play the best players throughout the whole match, they will play young players: see, e.g. Morris, T., 2016, ‘Hawthorn coach Alistair Clarkson is successfully blooding young players while challenging for fourth premiership’, Fox Sports, 11 June, www.foxsports.com.au/afl/hawthorn- coach-alastair- clarkson-is- successfully-blooding- young-players- while-challenging- for-fourth- premiership/news- story/8

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abfdd7bec6aee0a67dffd7f80cc304b; Ryan, P., 2015, ‘The 10 best wins of Mick Malthouse’s coaching career’, AFL, 1 May, www.afl.com.au/news/2015-05-01/the- 10-best- wins-of- mick-malthouses- coaching-career. ‘Tanking’ in the AFL has also been reviewed by economist Dr Liam Lenten following sanctions against the Melbourne Football Club in 2013: see Lenten, L., 2014, ‘AFL draft rule change proposal: rank picks not ladder position’, Australian Financial Review, 31 July, www.afr.com/opinion/our- writers/afl- draft-rule- change-proposal- rank-picks- order-by- finals-exit- not-ladder- position-20140730-jk6q9. In relation to basketball, the Australian national team was accused of not playing its best team to avoid playing the United States of America in the next round and thereby losing unexpectedly to lesser ranked Angola. For an explanation as to why Australia may have chosen this strategy deliberately, see Prada, M., 2014, ‘Why Australia probably tanked against Angola’, SB Nation, 4 September, www.sbnation.com/nba/2014/9/4/6106015/fiba- world-cup- 2014-australia- tank-angola- slovenia.

41 E.g. the New Zealand response at the opening of the ICC World Cup: New Zealand Police 2015, ‘Police alert to betting cheats’, 14 February, www.police.govt.nz/news/release/police- alert-betting- cheats.

42 In an environment where sponsorships from other products are prohibited, par-ticularly when they are seen to be in conflict with the values of the sport (tobacco and alcohol primarily), and the reduced willingness by Governments to provide financial support for many sports organisations, gambling operators have filled a void. See, e.g. Danson, A., 2010, ‘Sponsorship by gambling com-panies in the UK and Europe: the opportunities and challenges’, Journal of Sponsorship, vol. 3, no. 2, pp. 194–201.

43 See, e.g. McKelvey, S.M., 2004, ‘The growth in marketing alliances between US professional sport and legalised gambling entities: are we putting sport consum-ers at risk?’, Sport Management Review, vol. 7, no. 2, pp. 193–210.

44 See, e.g. Walker, D.M. and Barnett, A.H., 1999, ‘The social costs of gambling: an economic perspective’, Journal of Gambling Studies, vol. 15, no. 3, pp. 181–212.

45 Pound, R., 2011, ‘Responses to corruption in sport’, paper presented at the Play the Game Conference, 3 October, Cologne, Germany, p. 2, www.playthegame.org/fileadmin/image/PTG2011/Presentation/Richard_Pound_2011.pdf; Pielke Jr, R., 2013, ‘Does uncertainty of outcome define sport?’, The least thing, web log post, 19 February, http://leastthing.blogspot.com.au/2013/02/does- uncertainty-of- outcome-define- sport.html. Whether sports consumers care is a separate dis-cussion. See Buraimo, B. and Simmons, R., 2008, ‘Do sports fans really value uncertainty of outcome? Evidence from the English Premier League’, Inter-national Journal of Sport Finance, vol. 3, no. 3, pp. 146–155.

46 Including through ignoring the outcome of the event altogether. Major illegal online betting firms will write the winning tickets for organised crime (for a fee), as they are not required to demonstrate that a bet even took place. Buying one dollar for 98 cents is very profitable and risk- free in an anonymous environment.

47 See Australian Associated Press 2015, ‘Cairns defence suggests AFP offered deal’, SBS News, 27 October, www.sbs.com.au/news/article/2015/10/27/cairns- defence-suggests- afp-offered- deal. Cairns was ultimately cleared of the perjury charge: Martin, A., 2015, ‘Chris Cairns trial: verdict leaves more questions than answers about match- fixing’, Guardian, 1 December, www.theguardian.com/sport/2015/nov/30/chris- cairns-verdict- questions-matchfixing.

48 INTERPOL 2015, Improving awareness and understanding of corruption in football, p. 1, http://sports.growthlab.cid.harvard.edu/files/icss/files/2013.05_leaflet_integrity_in_sport_enweb.pdf.

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49 INTERPOL, Improving awareness and understanding of match- fixing, para. 2, www.interpol.int/en/News- and-media/Publications2/Leaflets- and-brochures/Integrity- in-sport- Trifold.

50 Australian Sports Anti- Doping Authority 2013, ‘Ministerial statement: organ-ised crime and drugs in sport’, 7 February, www.asada.gov.au/news/ministerial- statement-organised- crime-and- drugs-sport.

51 Bricknell, S., 2015, Corruption in Australian sport, Trends and issues in crime and criminal justice publication no. 490, Australian Institute of Criminology, Canberra, p. 1.

52 See above n. 10 in relation to funding.53 See Australian Customs and Border Protection Services 2015, Annual report

2014–15, www.border.gov.au/ReportsandPublications/Documents/annual- reports/ACBPS- Annual-report- 2014-15.pdf.

54 See, e.g. Boyer, S., 2013, ‘Police look at sharing cricket info’, NZ Herald, 12 December, www.nzherald.co.nz/Sam%20-Boyer/news/article.cfm?a_id=912&objectid=11171027.

55 Inside World Football 2015, ‘Aussie police open gateway to more match- fixing data with Sportradar hook- up’, 3 May, www.insideworldfootball.com/2015/05/03/aussie- police-open- gateway-to- more-match- fixing-data- with-sportradar- hook-up.

56 See ‘Combating criminal infiltration of major sporting events’, in Australian Federal Police 2015, AFP annual report 2014–15, 16 October, www.afp.gov.au/afp- annual-report- 2014-15; Australian Federal Police, Senate file list – January to June 2013, www.afp.gov.au/about- us/governance- and-accountability/harradine- report/january- june-2013.

57 See, e.g. ‘ICC Cricket World Cup 2015 gives economic boost to Australia and New Zealand’ 2015, press release, International Cricket Council, 29 June, www.icc- cricket.com/news/181588.

58 In relation to football, as an example, see Asian Football Confederation 2015, ‘Asian Cup 2015: no evidence of match- manipulation’, web log post, 17 Febru-ary, www.the- afc.com/asian- cup-2015/asian- cup-2015-no- evidence-ofmatch-manipulation.

59 See, e.g. the analysis of ASADA in Ordway, C., 2011, ‘Doping: review of Aus-tralia’s national anti- doping agency: part 1’, World Sports Law Report, vol. 9, no. 6, pp. 2–4. Contemporary policing agencies, e.g.: South Australia Police 2014, Strategic priorities, www.police.sa.gov.au/about- us/strategic- priorities; National Crime Agency 2017, NCA annual plan 2017–18, p. 6, www.national-crimeagency.gov.uk/publications/790-nca- annual-plan- 2017-18/file; Garda Inspec-torate 2016, Corporate strategy 2016–2019, www.gsinsp.ie/en/GSINSP/Garda%20S%C3%ADoch%C3%A1na%20Inspectorate%20Corporate%20Strategy%202016%20-2019.pdf/Files/Garda%20S%C3%ADoch%C3%A1na%20 Inspectorate%20Corporate%20Strategy%202016%20-2019.pdf.

60 For the current legislation, see Australian Communications and Media Author-ity, Law enforcement (telecommunications), www.acma.gov.au/theACMA/lawenforcement-telecommunications.

61 Carson, W.G., 2003, ‘Whole of government and crime prevention for Victoria’, in Crime prevention for a safer Victoria: making it work – a consultative symposium, September, University of Melbourne, pp. 29–30; Goldstein, H., 1990, ‘Problem- oriented policing: the basic elements’, in Problem- oriented policing, McGraw- Hill, pp. 32–49, p. 47: ‘[p]roblem- oriented policing urges the police to be more aggressive partners with other police agencies’.

62 ICC shared POI lists with Australian and NZ law enforcement: Bayer, K., 2015, ‘Match- fixing “sickness” not part of tournament – cricket bosses’, NZ Herald, 11 February, www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=11400146.

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63 See, e.g. the discussion in Hong, F. and Zhouxiang, L., 2013, ‘The professional-isation and commercialisation of football in China (1993–2013)’, The Inter-national Journal of the History of Sport, vol. 30, no. 14, pp. 1637–1654.

64 The road to the Olympic stadium in Greece is lined with bronze statues of Zeus hurling thunderbolts like javelins. Called ‘Zanes’, the statues were purchased by athletes who broke the rules: KU Leuven 2012, The Zanes, http://ancient olympics.arts.kuleuven.be/eng/TA008EN.html.

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Chapter 4: Legislation and regulatory measures

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Chapter 4 Overview: Legislation and regulatory measures As discussed by Ordway & Opie (2017) in Publication #1 (Chapter 1), legislation and other

regulatory measures can be used effectively to support a range of anti-corruption strategies,

including, as outlined in Chapter 3, to support “Partnerships: information-sharing and inter-

agency collaboration”. In Chapter 3, the need for information-sharing and collaboration in

combatting doping were set out in Publication #4, and these reasons were also cited in

supporting the proposed amendments to the Australian Sports Anti-Doping Authority’s

(ASADA) legislation in Publication #6: ACC Report: why ASADA needs teeth.

Australia is considered to be one of the leading nations in relation to anti-doping through

establishing its national anti-doping organisation (the Australian Sports Drug Agency in 1989

and then ASADA in 2006) through its own Act of Parliament, and a national anti-doping

framework in 2011. Australia is also a signatory to the World Anti-Doping Code (2003), and

the UNESCO (2005) International Convention against Doping in Sport. Ratifying first the

Council of Europe anti-doping convention, and later, the UNESCO convention, allowed the

national legislation to be enacted.

In line with Chapter 3, where a match-fixing case study was reviewed in Publication #5 on

the approach used for the major sporting events held in Australia in 2015, Publication #7 in

this Chapter 4, also considers the extent to which national legislation might assist in

enforcing the existing match-fixing policy. Publication #7, Sports Integrity: Legislating into

a Position of Strength, analyses the recommendations from the Wood Review (2018).

In contrast with the policy position to not impose penal sanctions for doping, match-fixing in

Australia has been criminalised in most States and Territories due to the need expressed to

protect the integrity of sports betting markets. However, as identified by the Wood Review,

as Australia has not ratified the Council of Europe (2014) Convention on the manipulation of

sports competitions [known as the Macolin Convention], the national policy prescribing a

maximum 10-year jail term cannot be translated into national legislation. This limitation

means that the inconsistencies between the State and Territory approaches creates a crochet

effect, where perpetrators can potentially slip through the gaps.

Publication #8, co-authored with Nikos Passas, takes this idea of using international

conventions to strengthen national integrity in sport efforts to a higher level in: “Sports

Corruption: Justice and Accountability through the Use of the UNCAC and the UNTOC”.

Inspired by the idea of “moral repair” coined by Margaret Urban-Walker (Walker 2001) in

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line with an Ethics of Care approach (Gilligan 1982), this Chapter 4 examines the degree to

which international instruments can be used as a risk management strategy to assist sports

organisations to restore the public’s trust in their sport.

International conventions and protocols have not traditionally been used to make

international sport organisations and events accountable. However, Australia has ratified the

UN Conventions against Corruption (UNCAC) and against Transnational Organized Crime

(UNTOC). As a State Party, Australia has a responsibility in implementing these

Conventions, to enact legislation to combat corruption, including for the sports industry. In

Publication #1, Ordway & Opie (2017), it was noted that participants at the 5th World

Conference of Sports Ministers in May 2013 adopted a range of non-binding

recommendations calling on UNESCO Member States to enact legislation to protect the

integrity of sport from the threat posed by transnational organised crime, doping, the

manipulation of sports competitions and corruption (UNESCO 2013).

Going beyond doping and match-fixing, in the Passas & Ordway chapter (Publication #8), it

is recommended that the Australian Parliament use the UNCAC and UNTOC to enact

national legislation that captures behaviour impacting on, and perpetrated by, members of the

sports industry including: “bribery of public officials; embezzlement; trading in influence;

abuse of function; illicit enrichment by public officials; bribery and embezzlement in the

private sector; money laundering; and obstruction of justice” (UN 2005), and under the

UNTOC: ‘corruption’ (Art. 8), ‘participation in an organized criminal group’ (Art. 5),

‘laundering of proceeds of crime’ (Art. 6) and ‘obstruction of justice’ (Art. 23) (UN 2003). If

one of the Wood Review recommendations is accepted by the Government, the establishment

of a new umbrella body called the National Sports Integrity Commission (NSIC), this body

could potentially include the UNCAC and UNTOC definitions of corrupt behaviour within its

remit (Wood 2018 p10).

It was hoped that the Government would have provided its response to the Wood Review by

the end of 2018, but to date it has not been released (McKenzie 2018). In the meantime, a

bill to establish the Australian National Integrity Commission has been referred to the Senate

Standing Committee for the Scrutiny of Bills on 5 December 2018 (APH 2018). It remains to

be seen whether the Standing Committee will, instead of the NSIC, but arguably still in line

with the Wood Review recommendations, suggest that that National Integrity Commission’s

authority be expanded to include sport, and thereby serve as an additional risk management

anti-corruption strategy for all sports organisations.

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References: Australian Parliament House (APH). (2018). National Integrity Commission Bill No. 2, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1154# Gilligan, C. (1982). In a Different Voice. Cambridge: Harvard University Press. McKenzie, B. (2018). “Shooting for Success”, 1 August, National Press Club presentation, http://www.abc.net.au/news/programs/national-press-club/2018-08-01/national-press-club:-bridget-mckenzie/10062694 United Nations (UN). (2003). Convention Against Transnational Organized Crime https://www.unodc.org/unodc/en/treaties/CTOC/signatures.html United Nations (UN). (2005). Convention Against Corruption https://www.unodc.org/unodc/en/corruption/uncac.html Walker, M. U. (2001). Moral repair and its limits Wood Review. (2018). Commonwealth of Australia, Department of Health, Report of the review of Australia’s Sports Integrity Arrangements, 12074, http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin

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https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1154

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1154

http://www.abc.net.au/news/programs/national-press-club/2018-08-01/national-press-club:-bridget-mckenzie/10062694

http://www.abc.net.au/news/programs/national-press-club/2018-08-01/national-press-club:-bridget-mckenzie/10062694

https://www.unodc.org/unodc/en/treaties/CTOC/signatures.html


http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin


IN THIS ISSU

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The Article 29 Working Party, abody representing the EuropeanUnion’s data protection regula-tors, has written to the WorldAnti-Doping Agency (WADA)warning that proposedrevisions to the World Anti-Doping Code (the ‘Code’) donot respect European dataprotection law. ‘In the context ofthe third and final stage of thepublic consultation organisedby WADA, the Art. 29 WPwould like to express a numberof observations and concernswith regard to these documents,particularly the latest modifica-tions’, reads a 5 March letter tothe World Anti-Doping Agency(WADA). ‘The Art. 29 WP feelsthat WADA’s proposals do notstrike the necessary and propor-tionate balance betweenWADA’s aims and the respectfor fundamental rights’.In a 13-page annex to theletter from its Chairman JacobKohnstamm, the Art. 29 WP

outlines its objections to thelatest revisions to the Code;WADA’s International Standardfor the Protection of Privacyand Personal Information(ISPPPI); its use of the Anti-Doping Administration andManagement System(ADAMS); its InternationalStandard for Therapeutic UseExemptions (ISTUE); and itsInternational Standard onTesting (whereabouts). In the annex to the letter, theArt. 29 WP rejects athleteconsent as the basis for process-ing data, as ‘the sanctions andconsequences attached to apossible refusal by participantsto subject themselves to theobligations of theCode…prevents the WorkingParty from considering thatconsent would be, in any way,freely given’. It also states it is‘out of the question’ that non-EU requests for disclosure ofpersonal information relating to

doping are complied with,unless prescribed by thenational legislation of the anti-doping body concerned.It states that identifiablesamples can only be stored fora maximum of eight years, andonly indefinitely if anonymised.Whereabouts can only relate tofour hours in a 24-hour period(currently living, competitionand training locations plus onehour per day). It also requeststhe Code to state that theAthlete Biological Passport isnot mandatory, ‘as confirmedby WADA during the subgroupmeeting’ and that ADAMS isnot mandatory.“The Art. 29 WP opinions arenot binding but, as previouscases have shown (e.g. GoogleStreet View), they are highlyinfluential in view of the actionthe regulators might take”, saidDominika Kupczyk, a PrivacyAdvisor with Field FisherWaterhouse LLP.

Over 200 anti-doping expertsfrom over 25 countries willconvene at TwickenhamStadium on 13-14 March forthe sixth edition of World SportsLaw Report’s Tackling Dopingin Sport annual conference.Thanks to the help of organis-ing partners Squire Sanders(UK) LLP and UK Anti-Doping(UKAD), the event has grownfrom a niche briefing in a lawfirm’s offices to a two-daysymposium featuring over 15national anti-doping authori-ties, over ten internationalfederations and over 30

national sports associations.Key speakers include theWorld Anti-Doping Agency, theCourt of Arbitration for Sport,UKAD, the InternationalAssociation of AthleticsFederations, the Nationale Anti-Doping Agentur Deutschland,the Rugby Football Union, theFédération EquestreInternationale, Change CyclingNow, the US OlympicCommittee, the BritishOlympic Association, the JapanAnti-Doping Agency, Anti-Doping Norway, the AustralianFootball League and more.

Key sessions will examineproposed reforms in cycling,proposed reforms of the WorldAnti-Doping Code, the use ofintelligence and law enforce-ment to combat doping, dataprotection in anti-doping andmore. Break-out sessions willalso allow delegates to take partin mock anti-doping proceed-ings and to undergo polygraph(lie detector) testing, which hasbeen suggested as a potentialtool to combat doping. Therewill also be anti-dopingnetworking sessions led byWorld Sports Law Report.

WADA warned that Codedoesn’t respect data laws

Five plaintiffs have launched aconsumer protection classaction against cyclist LanceArmstrong, six publishingcompanies, Thomas Weisel andWilliam Stapleton; alleging thatthey defrauded the publicthrough publication of fiveArmstrong books as works ofnon-fiction. Filed 7 March atthe US District Court for theEastern District of California,case 2:13-cv-00116-MCE-KJNseeks ‘damages, injunctive,equitable and declaratory’ relief,alleging that defendants ‘labeledand sold [the books] as truthfuland honest works of nonfictionbiography (or autobiography)when, if fact, Defendants knewor should have known thatthese books were works offiction’.Weisel was a financial backerof Tailwind Sports, thecompany formed to manage theUS Postal Service cycling team.Stapleton is Armstrong’s agent.The lawsuit alleges both knewArmstrong was doping and thatthe books contained false state-ments. The plaintiffs are fourmen inspired by Armstrong’sbattle with cancer and a womanfighting against breast cancer. A‘class action’ allows plaintiffs tobring a claim to court on behalfof a large group of people - inthis case, the people of the Stateof California.

Armstrongfaces ‘classaction’ suit

Doping experts from over 25 countries to attend Tackling Doping in Sport

SanctionsRetrospective action 03Doping DoJ joinsLandis lawsuit 06Sporting data FootballDataCo CoA ruling 08Regulations FFPR &‘related parties’ 10Doping ACC report &ASADA changes 13

worldsportslawreportTHE NEWSLETTER FOR THE SPORTS BUSINESS

VOLUME 11 ISSUE 03 MARCH 2013WWW.E-COMLAW.COM

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The international performanceenhancing drug trade is reportedlyworth billions1. The AustralianCrime Commission (ACC)dropped a bomb on Australiansport in the form of its: ‘OrganisedCrime and Drugs in Sport’ reporton 7 February 20132. The reportclaimed that ‘widespread’ doping isoccurring in Australia: ‘The ACC has found, on the basisof a limited and focusedexamination of one component ofthe PIEDs3 market, that the markethas evolved significantly in recentyears to include peptides andhormones. These substances,which are WADA-prohibited, arebeing used by professional athletein a number of professionalsporting codes. Organised crimehas been found to have a tangibleand expanding footprint in thismarket, and their activity is beingfacilitated by some coaches andsupport staff of elite athletes, whohave orchestrated and/orcondoned the use of prohibitedsubstances and/or methods ofadministration.4’It is clear that doping cannot bedetected by testing alone. TheWorld Anti-Doping Agency(WADA) promotes Australia ashaving developed a revolutionaryanti-doping model that solidifiescooperation between the anti-doping authority and othergovernment agencies. WADA laudsthe ‘Australian Model’ on itswebsite and in its publications5.WADA is also of the view that akey component in the investigativeand intelligence capabilities is theestablishment and maintenance ofrelationships between investigativeagencies across Government. Thisposition is reflected in WADA’s‘Guidelines for CoordinatingInvestigations’6. So, how canAustralian sport respond to theallegations from one of the mostpowerful law enforcement agenciesin the country?

The Australian Sports Anti-Doping Authority (ASADA) is theAustralian National Anti-DopingOrganisation under the WorldAnti-Doping Code (the ‘Code’),and is a Commonwealthgovernment statutory authority.ASADA’s vision is: ‘to be thedriving force for pure performancein sport’. ASADA’s purpose is to:‘protect Australia’s sportingintegrity through the eliminationof doping’7. Outspoken scientistand anti-doping campaigner, Dr.Mike Ashenden, was quoted lastmonth as expressing hisdisappointment in ASADA as: “aprodigy that has not yet deliveredon its exciting potential...for somereason, things just haven’t clicked,and the results they’ve produced sofar have been pretty modest’’8. ASADA is established under theASADA Act 2006 (amended 2011)and Regulations (including theNational Anti-Doping Scheme)9.The challenges for anti-dopingorganisations (ADOs), includingASADA, are to disrupt and detectdoping (anti-doping rule violationsin the Code terminology) throughinformation and intelligenceobtained from the following:l Athletes and Athlete SupportPersonnel as defined by the Code,thereby within the ADOjurisdiction.l Government organisations,including Law EnforcementAgencies [LEAs].l Non-governmentalorganisations and professionalassociations.l Individuals not within thejurisdiction of the ADO.ASADA currently has no powerto compel any of the classes ofperson above to provide it withinformation which ASADA may beable to use to carry out itsfunctions. Australian OlympicCommittee (AOC) President, JohnCoates, has been calling forenhanced investigative powers to

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ACC report: why ASADAneeds teethThe Australian Crime Commissionreleased a February report allegingthat ‘widespread’ doping isoccurring in Australia and thatorganised crime is involved. Thishas led to the ASADA AmendmentBill 2013, which suggests greaterinvestigative powers for theAustralian Sports Anti-DopingAuthority (ASADA). CatherineOrdway, a Sport & Anti-DopingConsultant who was formerly aDirector at ASADA, explains whythese and other powers are neededto help ASADA do its job.

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ASDA’s functions were focused onadvocacy and the testing andeducation of athletes and athletesupport personnel. Significantly,ASADA was also given the powerto investigate doping allegationsand present Anti-Doping RuleViolation (ADRV) cases athearings either before the Court ofArbitration for Sport (CAS) orother sports tribunals under theCode. This new Authority assistedthe Howard Government to fulfilits election17 and treaty18

obligations. This development wasalso in keeping with the growth innon-policing public sector agenciesperforming investigativefunctions19.

ASADA’s limitationsASADA does not possess powers ofcompulsion, or of search andseizure. ASADA must therefore relyon information derived from sportanti-doping rules and cross-government agreements. ASADA’scurrent limitations became moreobvious through the release of theACC ‘Organised Crime and Drugsin Sport’ report in February 201320.The ACC has coercive powers toinvestigate criminal matters at thenational level, particularly focusedon organised crime. The ACC hasreferred the matters outlined in itsreport to the State and Federalpolice forces, and to ASADA (inrelation to anti-doping).Unfortunately, ASADA cannotcompel the Athletes or AthleteSupport Personnel featured in theACC report to provide any furtherinformation, so unless theyvoluntarily come forward, there isno guarantee that any of thematters identified can beprogressed.

Information sharing with sportsorganisations In order to investigate thosematters within its jurisdiction,referred to it by the ACC or

otherwise, ASADA must rely onthe agreements in place with themajor National SportsOrganisations (NSOs) requiringthe NSOs to: ‘immediately adviseASADA of any alleged anti-dopingrule violations and [to] provideassistance to ASADA in anyinvestigation that ASADA mightreasonably request’21. If an NSOfails to comply with thisagreement, ASADA only haslimited legal (e.g. breach ofcontract) and political avenues topursue (e.g. embarrassment in themedia, with the Minister for Sportor the Australian SportsCommission). The NSO in turnhas jurisdiction over the Athletesand Athlete Support Personnel viatheir membership contracts (club,state and then national) oremployment arrangements.

Information sharing with externalorganisations (including LEAs) ASADA’s legislation includesexpanded information disclosureprovisions and specific referencesto allow ASADA to shareinformation with sports and lawenforcement bodies, e.g. AustralianCustoms, the State and FederalPolice, Therapeutic GoodsAdministration, National Anti-Doping Organisations andInternational sports Federations22.This is a one directional power,which needs to be replicated in theeach of the agencies ASADA wishesto receive information from(including through Memorandumsof Understanding). It was intendedthat this information would enableASADA to identify athletes orsupport personnel suspected ofdoping, and then concentrate itsresources on them, whether viafurther investigation or targeteddrug testing. Sharing informationbetween government agencies isconsistent with the ‘Whole ofGovernment’ approach23.

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be granted to ASADA (and itspredecessor) from as early as200010.There is currently a proposalbefore the Commonwealthparliament that the ASADA Act beamended to allow for, amongstother things, the ASADA CEO tocompel witnesses to giveevidence11. In accordance withAustralian parliamentary process12,the ASADA Amendment Bill 2013was introduced into the Senate(upper house) and, following thefirst reading of the Bill, wasimmediately referred to the SenateRural and Regional Affairs andTransport References Committeefor consideration. Interestedparties were invited to makesubmissions to the SenateCommittee in relation to the Bill,and a public hearing was held on 1March 201313.

HistoryThe Australian Sports DrugAgency (ASDA) was the originalNational Anti-DopingOrganisation for Australiaestablished by the ASDA Act 1990.In 2004, a new statutory authoritywas proposed to replace ASDA.The creation of ASADA was a keyrecommendation of the 2004Anderson inquiry into the use ofdrugs by Australia’s track cyclingteam14. Justice Andersonrecommended, with respect to theinvestigation of doping offences inAustralian sport, that:‘There should be a body which isquite independent of the AIS15 andof the Australian SportsCommission and of the sportingbodies themselves with the powerand duty to investigate suspectedinfractions such as substance abuseand to carry the prosecution ofpersons against whom evidence isobtained.16’ASADA replaced ASDA on 14March 2006 and took over thefunctions performed by ASDA.

Headline

CatherineOrdway

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Barriers to information sharingwith government agencies(including LEAs) An expansion to ASADA’s powersas anticipated by the 2013 Bill willassist to overcome one of itscurrent challenges: reliance onLEAs. In order to have mattersthoroughly investigated, ASADAmust attract the attention oforganisations which have scarceresources and higher priorities forcommunity safety (e.g. murders,child pornography, and thetrafficking of non-performanceenhancing drugs, including ice24

and heroin). Even if the LEAs arekeen to provide information toASADA, there are additionalbarriers to sharing information,both internally and externally. One of the additional challengesto inter-agency cooperation isAustralia’s privacy legislation. Thishas not been addressed in thecurrent draft Bill. For example, in2008, ASADA attempted to data-match records with Medicare25 todetermine whether doctors wereprescribing performanceenhancing drugs to athletes fornon-therapeutic purposes,particularly where those substancesmay be subsidised by thePharmaceutical Benefits Scheme(PBS). Other AustralianGovernment agencies data-matchon a regular basis, and far in excessof the number of records referredby ASADA, and yet ASADA’sefforts in that instance wereblocked26. Before a response wasreceived from Medicare, concernsrelating to the privacy of medicalrecords were raised in the media27.Following an investigation initiatedby the then Sports Minister, KateEllis28, questions were asked ofASADA by the CommonwealthParliament Senate EstimatesCommittee29. This led to thePrivacy Commissioner conductingan investigation and handing downrecommendations for ASADA to

implement in its futureinformation handling practices30. Itwould be of assistance to ASADA ifthis Bill was amended to allow fordata-matching exercises to beconducted to investigate anti-doping rule violations (ADRVS),including - for example - toexamine whether public funds arebeing diverted from the PBSinappropriately.

SummaryI am supportive of ASADA beingprovided with powers to compelwitnesses to provide informationrelating to potential anti-dopingrule violations. Many of thehuman rights, privacy andphilosophical concerns raised withme by some of my legal andsporting colleagues have been fullyaddressed in the parliamentaryreport into human rights31. In mysubmission to the SenateCommittee, I have also suggestedthat it may also be of benefit forASADA to be granted powers of‘search and seizure’, and for therecently introduced information-sharing facilitation mechanism -the National CollaborationFramework - be used moreeffectively in relation to ASADA32,including extending the PrivacyCommissioner’s data-matching inaccordance with informationhandling guidelines. I have alsosuggested that we have anotherlook at whether ADRVs should bemade criminal offences under theCrimes Act, and thereby whetherother benefits may flow from that,including applying the relevantprovisions of the Proceeds ofCrime Act to ASADA. The lattersuggestion is a bigger discussionfor another day!

Catherine Ordway Sport & Anti-DopingConsultantLecturer and PhD Candidate, NationalInstitute of Sport Studies, University [email protected]

1. WADA Media Release, ‘Interpol andWADA Team Up to Fight Cheats’, 2October 2006, www.wada-ama.org/en/newsarticle.ch2?articleId=3115331. E.g. ‘InternationalLaw Enforcement Operation TargetsUnderground Manufacture of AnabolicSteroids, “Operation Raw Deal” Nets 124Arrests Nationwide To Date’, USDepartment of Justice, 24 September2007 www.usdoj.gov/opa/pr/2007/September/07_crm_753.html2 .www.crimecommission.gov.au/publications/other/organised-crime-drugs-sport3. Performance and Image EnhancingDrugs.4. www.crimecommission.gov.au/publications/other/organised-crime-drugs-sport at p36.5. www.wada-ama.org/en/dynamic.ch2?pageCategory.id=694. See also the jointWADA & Interpol press release: ‘WADAApplauds Actions Targeting the IllegalManufacture and Distribution of DopingSubstances New Era in Anti-DopingMust Involve Coordination with LawEnforcement’ and Ings R, (2007), PlayTrue, WADA Issue 1, p10-11www.wada-ama.org/rtecontent/document/PlayTrue2007_BeyondtheAthlete_En.pdf6. www.wada-ama.org/en/World-Anti-Doping-Program/Governments/Investigation--Trafficking/Investigations/Guidelines/. Seealso Senator George Mitchell in hisfindings into the illegal use of steroids inMajor League Baseball (USA): MitchellGJ, (2007) ‘Report To The CommissionerOf Baseball Of An IndependentInvestigation Into The Illegal Use OfSteroids And Other PerformanceEnhancing Substances By Players InMajor League Baseball’,www.primerahora.com/XStatic/primerahora/docs/espanol/informemitchell4.pdf7. www.asada.gov.au8. S Lane, ‘ASADA: Is it Working’,Sydney Morning Herald, 23 February2103, www.smh.com.au/sport/asada-is-it-working-20130222-2ex1r.html#ixzz2MC344dup9. www.comlaw.gov.au/Details/C2011C0069010. See the Australian OlympicCommittee submission to the ASADA Bill2013, dated 21 February 2013, atwww.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/sports_anti_doping/submissions.htm11. www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s90212. www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/briefs/brief08

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It would be ofassistance toASADA if thisBill wasamended toallow fordata-matchingexercises tobe conductedto investigateanti-dopingrule violations

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Australian and New Zealand Journal ofCriminology, 27 (1994), p111-132.20. www.crimecommission.gov.au/publications/other/organised-crime-drugs-sport21. An example of this type ofagreement is found at Appendix D of the‘Cycling Australia Review’ conducted bythe Hon James Wood AO QC, releasedon 14 January 2013, atwww.regional.gov.au/sport/resources/reports/review-of-cycling-australia.aspx22. ASADA Act, 2006,www.comlaw.gov.au23. See also the National CollaborationFramework cited. W G Carson, ‘Wholeof Government and Crime Prevention forVictoria’, August 2003, Department ofCriminology, University of Melbourne, p1-40, www.criminology.unimelb.edu.au/staff/kit_carson/whole-government-crime-prevention.pdf. H Goldstein,‘Problem-oriented policing: the basicelements’ in ‘Problem-Oriented Policing’(1990), McGraw-Hill, New York, p32-49at p47.24. Methamphetamine, or ‘crystal meth’.25. Medicare is Australia’s universalhealth insurance scheme.26. J Magnay, ‘Minister orders review’,and ‘Medicare enlisted for fight against“loophole seekers”‘, Sydney MorningHerald, 15 March 2008,www.smh.com.au27. S Parnell, ‘Investigators scouringathletes’ medical records for drugcheats’, The Australian, 14 March 2008,www.theaustralian.com.au/news/secret-anti-doping-probe/story-e6frg7mo-111111579389228. S Parnell, ‘Doping Checks May End’,The Australian, 15 March 2008,www.theaustralian.com.au/news/doping-checks-may-end/story-e6frg7mo-111111580386829. See Senate Estimates Committeehearing transcript, 5 June 2008,www.aph.gov.au. See also S Parnell,‘Secret List of Athletes Led to DrugsInquiry’, The Australian, 24 July 2008,www.theaustralian.com.au/news/secret-athletes-list-led-to-inquiry/story-e6frg7mo-111111700057330. News 22 July 2008, ASADA website,‘On 30 June 2008 the Australian PrivacyCommissioner (OPC), contacted ASADAoutlining three recommendations...’,www.asada.gov.au31. ‘Examination of legislation inaccordance with the Human Rights

(Parliamentary Scrutiny) Act 2011ASADA Amendment Bill 2013 SecondReport of 2013’ dated February 2013,available atwww.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/reports/index.htm32. http://agimo.gov.au/collaboration-services-skills/national-collaboration-framework/

DOPING

13. www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/sports_anti_doping/submissions.htm14. Australian Sports Anti-DopingAuthority Bill 2005, Bills Digest no. 792005-06,www.aph.gov.au/library/Pubs/BD/2005-06/06bd079.htm15. Australian Institute of Sport.16. The Honourable R Anderson QC,‘Second Stage Report to the AustralianSports Commission and to CyclingAustralia’, (Anderson Report), Canberra,27 October 2004, Department ofCommunications, InformationTechnology and the Arts, 2004,http://fulltext.ausport.gov.au/fulltext/2004/feddep/Anderson_report.asp (originallylocated atwww.dcita.gov.au/sport/publications/anderson report).17. The Howard Government’s 2004election policy, Building AustralianCommunities through Sport, included arequirement on sporting organisations toimplement anti doping policies andpractices consistent with the World Anti-Doping Code as a condition for FederalGovernment funding. Australian SportsAnti-Doping Authority Bill 2005, BillsDigest no. 79 2005-06,www.aph.gov.au/library/Pubs/BD/2005-06/06bd079.htm. See also the 7December 2005 reference to; ‘the 2004election policy Building AustralianCommunities Through Sport’,http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?id=2537041&table=HANSARDR18. See www.wada-ama.org/rtecontent/document/copenhagen_en.pdf andwww.wada-ama.org/rtecontent/document/UNESCO_Convention.pdf19. Examples of public agencies havinginvestigative functions include: theAustralian Taxation Office, Centrelink,Medicare Australia, the Office of NationalAssessments, the Australian Securitiesand Investment Commission, theAustralian Commission for LawEnforcement Integrity, the AustralianCompetition and ConsumerCommission, Customs Australia,Comcare, Auscheck, and theDepartment of Families, Housing,Community Services and IndigenousAffairs. See P Fairchild, ‘The emergingpolice complex: Hoogenboom andAustralian Inter Agency Cooperation’,

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Protecting sports integrity through legislationFollowing a eight month review into Australia’s sports integrity arrangements, instigated by the former federal Sports Minister, Greg Hunt5, a range of recommendations have been provided for the government to consider6. Led by the Honourable James Wood AO QC7, the panel consisted of David Howman CNZM8 and Ray Murrihy9. The panel was assisted by adjunct panel members Jo Setright10, and The Honourable Dr Annabelle Bennett AO SC11. The ensuing report (referred to as ‘the Wood Review’) identified five key themes:

1. a stronger national responseto match fixing;

2. an Australian SportsWagering Scheme;

3. enhancing Australia’s anti-doping capability;

4. a National Sports Tribunal; and5. a National Sports Integrity

Commission.

The federal Minister for Sport, Bridget McKenzie12, launched the new strategic plan for sport in Australia, Sport 2030: National Sports Plan (‘the Plan’), together with a name change for the Australian Sports Commission (now Sport Australia) on 1 August 201813. The Plan replaced the Government’s strategic plan for sport, the Winning Edge (2012-2022)14. The Winning Edge emphasised

the need for good governance and defined this through its Mandatory Sports Governance Principles (‘MSGP,’ updated June 2015). MSGP Principle 3 is ‘Sport transparency, reporting and integrity15.’ Recognising perhaps that this Principle did not go far enough, one of the four key priority areas of the Plan is: ‘Safeguarding the integrity of sport - A fair, safe and strong sport sector free from corruption16.’ Sport Australia seeks to be “an exemplar of sports integrity” and to demonstrate leadership in “the national approach for a safe, ethical and inclusive sport industry17.” The Government has formed a Sports Integrity Review Taskforce to develop and implement its response to the Wood Review. The Plan envisages that Sport Australia will support the Sports Integrity Review Taskforce in this role, continue to encourage sports organisations to implement best practice governance, and establish Sport Safe Australia18.In 2016, University of Melbourne academic, Hayden Opie and I19 outlined a number of possible approaches to mitigate the risk of corruption in sport. Proposed, in effect, as a range of ‘tools in the toolbox’ to strengthen the integrity of sport, on-field and off-field, under the heading ‘Solutions: anti-corruption strategies and their application to sport,’ we discussed the following ideas:

1. Leadership: ethical decision-making2. Partnerships: information-sharing

and inter-agency collaboration3. Good governance: transparency

and accountability (includinggender equity)

4. Awareness and education5. Sport industry regulatory frameworks6. Early warning systems7. Whistleblowing and reporting systems8. Integrity units, officials and networks9. Legislation and the role

of penal measures10. Asset protection: athlete welfare; and11. Research and facilitation of

new ideas and approaches.

The following will examine a selection of the Wood Review recommendations, focusing on the ninth solution proposed above, namely, bolstering current legislative provisions as one of the ‘tools’ to combat threats to the integrity of sport.

Australia’s international obligationsAs a founding member of the United Nations (‘UN’) in 194520, Australia ratified the UN Conventions against Transnational Organized Crime (‘UNTOC’) in 200421 and the following year, against Corruption (‘UNCAC’)22. Professor Nikos Passas drafted the Legislative Guides for the implementation of the UNCAC and the UNTOC. Together we previously considered the capacity for these Conventions to protect sports integrity23. Countries such as Australia have a responsibility in implementing these Conventions, to

Sports Integrity in Australia: legislating into a position of strengthAustralia has recently conducted a review of its ‘Sports Integrity Arrangements.’ The resulting report was presented to the Commonwealth Government in March 2018 and was made publicly available on 1 August 20181. This date is significant, because, in the same announcement, the current federal Minister for Sport, Bridget McKenzie2, launched the new National Sports Plan for Australia and a name change for the Australian Sports Commission (now Sport Australia)3. Known as the ‘Wood Review,’ the 340 page report and its 52 recommendations are proclaimed to be “the most comprehensive analysis of Australia’s sports integrity arrangement ever undertaken4.” Catherine Ordway, Senior Consultant at Snedden Hall & Gallop and Senior Fellow at the University of Melbourne, outlines the state of integrity in Australian sport in light of the findings of the review and its recommendations, the new strategic plan for sport, and discusses how the proposed legislative changes might contribute to broader anti-corruption strategies in Australian sport.

INTEGRITY Catherine Ordway Senior Consultant [email protected] Hall & Gallop, AustraliaSenior Fellow, University of Melbourne, Law School

PUBLICATION #7

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Australia has recently conducted a review of its ‘Sports Integrity Arrangements.’ The resulting reportwas presented to the Commonwealth Government in March 2018 and was made publicly available on 1 August 20181. This date is significant, because, in the same announcement, the current federal Minister for Sport, Bridget McKenzie2, launched the new National Sports Plan for Australia and a name change for the Australian Sports Commission (now Sport Australia)3. Known as the ‘Wood Review,’ the 340 page report and its 52 recommendations are proclaimed to be “the most comprehensive analysis of Australia’s sports integrity arrangement ever undertaken4.” Catherine Ordway, Senior Consultant at Snedden Hall & Gallop and Senior Fellow at the University of Melbourne, outlines the state of integrity in Australian sport in light of the findings of the review and its recommendations, the new strategic plan for sport, and discusses how the proposed legislative changes might contribute to broader anti-corruption strategies in Australian sport.

enact legislation to combat corruption, including for the sports industry.

Specifically relating to sport, Australia has also ratified the Council of Europe (‘CoE’) Anti-Doping Convention in 199424 and the UNESCO International Convention Against Doping in Sport in 200625, resulting in the creation of the Australian Sports Anti-Doping Authority (‘ASADA’) discussed below. As a long-standing UNESCO Member State26, Australia has participated in the World Conferences of Sports Ministers (‘MINEPS’). The May 2013 MINEPS V adopted a range of recommendations calling on UNESCO Member States to enact legislation to protect the integrity of sport from the threat posed by transnational organised crime, doping, the manipulation of sports competitions and corruption27. While also non-binding, it is indicative of the growing concern that the UNESCO International Charter of Physical Education, Physical Activity and Sport (1979) was revised in 2015 to include a reference to the importance of protecting the integrity of sport for the first time28.

UNESCO does not have a convention covering match-fixing, however the Council of Europe Convention on Manipulation of Sport Competitions has been prepared by the Enlarged Partial Agreement on Sport29. Australia has been one of the non-Member States assisting the Council of Europe to draw up the Convention30. Opened for signature in the Swiss city of Macolin in 2014, it is known as the Macolin Convention. The Convention requires another two states to ratify so that it can be entered into force31. It would therefore assist the global work against match-fixing, and the national strategy, if Australia became a signatory. As will be discussed below, the Wood Review recommends that Australia becomes a signatory.

Australian sports integrity legislationThe Wood Review notes that while there are significant gaps in the sports integrity framework, there is also duplication throughout the Australian sporting ecosystem, which includes ASADA, Sport Australia (including the Australian Institute of Sport), the National Integrity in Sport Unit and Office of Sport, the Australian Sports Foundation, the State and Territory sport departments and institutes, Play by the Rules and the integrity units of the professional clubs, national sports organisations and peak bodies including the Australian Olympic Committee and the Australian Paralympic Committee.

The most comprehensive of the Wood Review recommendations relates to the establishment of a new umbrella body, the National Sports Integrity Commission (‘NSIC’) and a National Platform for information sharing32. It is anticipated that the NSIC would need to be established as a statutory authority, or equivalent, as the Wood Review recommends that both ASADA and the NSIC be accorded ‘status as a law enforcement agency33.’ It has previously been noted that not being designated as a law enforcement agency has severely hampered ASADA’s ability to fully function, as it means that it was not permitted to receive and share intelligence with domestic and international regulatory, sporting and law enforcement bodies34.

It is intended that the NSIC should have three primary areas of focus35:

1. Sports Wagering Regulation aspart of a proposed AustralianSports Wagering Scheme: As alaw enforcement agency, the NSICwould have the power to collectand use ‘sensitive information’ andmaterial alleging criminality. It is notstated whether the additional phrase‘including oversight as to sports’implementation and adherence toappropriate integrity policies’ is limitedto the wagering context, or morebroadly relates to governance36.

2. Intelligence: The NSIC will beresponsible for information gatheringand both operational and strategicintelligence functions. Investigationsare to be referred to either theappropriate law enforcement agenciesin criminal matters, or to sportingorganisations for code of conductissues37. What is not clear, as WADAfound in attempting to restore trustfollowing the doping scandal inRussia38, is where the NSIC shouldrefer matters when corruption withinthe sporting organisation is alleged.

3. Policy and Program Delivery:Recommendation 49 suggeststhat the NSIC should become‘responsible for centrally coordinatingsports integrity policy functionspreviously executed by a numberof different organisations including[Sport Australia], the Goods SportsProgram (through the Alcohol andDrug Foundation) and the NationalIntegrity of Sport Unit39.’ It appearsto be envisaged that the NSIC willpartner with a range of organisationsto enhance existing outreach andeducation programs and assist‘sports in implementing policies and

appropriate practices in responding to possible integrity breaches40.’

While the Wood Review acknowledges that ‘sports integrity’ is much broader than match-fixing and doping41, it is not specified whether the converse of ‘[…] The manifestation of the ethics and values which promote community confidence in sports’ is ‘sports corruption’ as outlined by the UNCAC, for example, and therefore would fall within the NSIC’s jurisdiction. The Wood Review states that the NSIC’s ‘monitoring, intelligence and investigations’ function relates to ‘possible doping activity and manipulation of sports competitions and related corruption [emphasis added].’ Beyond what will remain the remit of on-field referees, judges and umpires42, fully extended, the NSIC’s scope could include all other on-field cheating, beyond doping and match-fixing, including classifications (whether via age, weight, gender and para-sports)43, and athlete protection against abuse and exploitation (whether financial, legal, physical, sexual or emotional for example)44. However, the Wood Review does not clarify whether, beyond protecting the sports gambling industry, which dominates the Wood Review45, the NSIC will have the power to investigate off-field corruption where it cannot otherwise be referred46.

The Wood Review notes the arguments made around the importance of sport autonomy47, however examples both in Australia and internationally abound that demonstrate the inadequacy of the criminal law in holding those responsible for corruption in sport to account48. In the absence of a national anti-corruption body, the NSIC needs both self-initiating and responsive powers49 to investigate and regulate behaviour including: vote-rigging, extortion and bribery (e.g. in the awarding of event hosting rights or player transfers), fraud and misappropriation of membership organisation funds (e.g. through property, procurement, staffing, salary cap breaches, expenses and remuneration), pork barrelling and sports development grants processes, nepotism, media rights, sponsorship and ticketing impropriety, or poor accountability and governance. I would therefore also expand the whistle-blower protections recommended, beyond ASADA, to include any sports corruption issues50.

Recommendations to amend the anti-doping legislationIn compliance with its obligations under, first the Council of Europe, and

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then later, the UNESCO, anti-doping conventions, Australia has enacted legislation aimed at what has been coined as ‘cheating to win51.’ Australia is believed to be one of only two jurisdictions in the world that establishes its national anti-doping organisation, ASADA, through an act of Parliament52. However, in line with the World Anti-Doping Agency (‘WADA’)’s position, Australia does not consider it appropriate to criminalise doping in sport, and it is not addressed in the Wood Review53.

Perhaps in anticipation of a bill being passed providing civil law immunity for WADA ‘including its directors, officers and employees’ for ‘any decision (and resulting activity) made in connection with its mission to fight doping in sport internationally’ by the Canadian parliament in Quebec (where WADA is based)54, the Wood Review recommends extending this immunity, already applicable to ASADA, to the national sporting organisations ‘in their exercise of Anti-Doping Rule Violation functions55.’ A number of commentators have queried whether provisions like this, that effectively make organisations less accountable, in an environment where athletes already feel powerless, are necessary or proportionate56.

A similar impost is sought by the Wood Review in recommending that the ASADA Act be amended to exclude the right held by other members of the community in policing investigations ‘to claim privilege against self-incrimination when answering a question or providing information to ASADA57.’ This exclusion was rejected by the Parliament in previous rounds of amendments, and the protections against’“non-direct or derivative use’ are unlikely to satisfy the chorus of

objections led by the Australian Athlete’s Alliance, lawyers and academics58. The self-incrimination exclusion currently applies to persons within ASADA’s jurisdiction in relation to the production of ‘documents and things,’ and the Wood Review argues that athletes and athlete support personnel are already denied this right through the contractual arrangements with their national sporting organisations59. One possible scenario where this amendment could be of benefit to its detractors, however, is where third parties could be compelled to provide evidence that serves to support or exonerate another person.

Match-fixing legislationTaking on board the mounting evidence that Australian sport, primarily in the men’s professional codes, was at risk of manipulation instigated by organised criminals, the Commonwealth Government took decisive action60. Without authority to enact national legislation under the constitutional external affairs power61, the next best solution was to encourage the States and Territories to enact harmonised legislation. In June 2011, the Australian Council of Sport and Recreation Ministers adopted the National Policy on Match-Fixing in Sport (‘the Policy’)62. Respondents to the Wood Review commended Australia’s “proactive approach” and described its sports integrity system as a global “shining light63.” As required by the Policy64, by November 2011 the Attorneys General met to discuss appropriate sanctions, and agreed that the gambling-related match-fixing behaviour defined in the Policy would attract ‘a maximum of 10 years imprisonment65.’

However, as set out in the Wood Review and by other commentators,

standardised legislation throughout Australia hasn’t been enacted66. For this reason, the Wood Review’s first recommendation is that Australia ratifies the Macolin Convention67. Following the ratification of the Macolin Convention, national legislation can create consistency within Australia and in a coordinated global response. The Wood Review recommends that, in line with current legislation in New South Wales: ‘offences relating to the manipulation of sports competitions and related corruption be introduced by the Australian Government and inserted into the Criminal Code Act 1995 and that harmonisation of Commonwealth and state and territory offence provisions be encouraged68.’ There would appear to be no reason to delay signing the Macolin Convention once the Government has completed its response to the Wood Review later this year. In the meantime, Australia will be represented at the Council of Europe’s third ‘International Conference on the fight against the manipulation of sports competitions - Promoting and Implementing the Macolin Convention’ in Strasbourg in September 201869.

Next stepsSport Minister McKenzie anticipates that the Government will provide its response to the Wood Review by the end of 201870. The Wood Review is certainly comprehensive, and its recommendations provide a range of solutions that will strengthen current legislative provisions. However, as I have outlined above, in order to be fully prepared to address the range of sports corruption issues that have presented internationally, the recommendations contained in the Wood Review do not go far enough.

INTEGRITY

continued

1. http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin

2. https://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=207825

3. http://www.bridgetmckenzie.com.au/Media/Media-Releases/ID/1175/National-Press-Club-Address-Shooting-for-Success

4. http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin

5. http://www.health.gov.au/internet/ministers/publishing.nsf/Content/health-mediarel-yr2017-hunt076.htm

6. http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review-of-australias-sports-integrity-arrangements

7. Former Judge of the Supreme Court of New South Wales and former Chairperson, Law Reform Commission of New South Wales.

8. Former Director-General, World Anti-Doping Agency and current Chair, IAAF Athletics Integrity Unit.

9. Former Racing New South Wales Chief Steward.10. Head of Legal, Business Affairs and Integrity at the Football Federation

Australia (‘FFA’), nominated by the Coalition of Major Professional and Participation Sports, of which the FFA is a member.

11. Chancellor of Bond University and a Court of Arbitration for Sport arbitrator, nominated by the Australian Olympic Committee, Australian Paralympic Committee and Commonwealth Games Australia.

12. https://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=207825

13. http://www.bridgetmckenzie.com.au/Media/Media-Releases/ID/1175/National-Press-Club-Address-Shooting-for-Success

14. McKenzie, B (2018).15. https://www.ausport.gov.au/ais/australias_winning_edge/mandatory_

sports_governance_principles/sport_transparency,_reporting_and_integrity 16. https://www.ausport.gov.au/nationalsportsplan17. Sport Australia also used this phrase in the position

advertisement for the role: ‘Australian Sports Commission - Deputy General Manager, Safe & Ethical Sport.’

18. National Sport Plan (2018) pp44-47. Sport Safe Australia is one of the recommendations from the report by the Royal Commission into Institutional Responses to Child Sexual Abuse (2017).

19. Ordway, C. and Opie, H. (2016) ‘Integrity and Corruption in Sport,’ in Schulenkorf & Frawley (eds) Critical Issues in Global Sport Management, Routledge, pp38-65.

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A Cecile Park Media Publication | September 2018 19

20. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook43p/engagementun

21. Australia ratified the UNTOC on 27 May 2004: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&clang=_en

22. Australia ratified the UNCAC on 7 December 2005: https://www.unodc.org/unodc/en/corruption/ratification-status.html

23. http://www.track.unodc.org/Pages/allEvents.aspx?index=5124. Australia ratified the CoE Anti-Doping Convention on 5 October

1994, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/country/AUT?p_auth=fkpBXK8Q

25. Australia ratified the UNESCO Convention on 17 January 2006, http://www.unesco.org/eri/la/convention.asp?KO=31037&language=E

26. Australia joined UNESCO on 4 November 1946, http://www.unesco.org/eri/cp/ListeMS_Indicators.asp

27. http://www.unesco.ru/en/?module=news&action=view&id=398 The Declaration of Berlin appears in full on the Australian Department of Health website: http://www.health.gov.au/internet/main/publishing.nsf/Content/declaration-of-berlin-mineps-v Although concerns were expressed at the time that the Declaration did not commit any of the Member States to ‘concrete action.’

28. http://unesdoc.unesco.org/images/0023/002354/235409e.pdf and http://portal.unesco.org/en/ev.php-URL_ID=13150&URL_DO=DO_TOPIC&URL_SECTION=201.html

29. https://rm.coe.int/factsheet-on-epas-activities-in-2018/16808b1c4330. Wood Review p69.31. Chart of signatures and ratifications of Treaty 215, Council of

Europe Convention on the Manipulation of Sports Competitions, Status as of 6 September 2018 states that 3 Member States have ratified, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/215/signatures?p_auth=KIMM5tXx

32. Wood Review p10.33. Wood Review pp15, 18, 107 and 130, 172. At p178 there is a reference to the

‘National Platform’ being designated as a ‘law enforcement agency,’ which would only seem to be necessary if the Platform does not sit inside the NSIC.

34. See, eg: ‘Doping: Review of Australia’s national anti-doping agency: parts 1 and 2,’ v9(6), Jun and v9(7), Jul 2011; ‘Doping: Working with Law Enforcement: A Strategic Approach,’ v9(10), Oct 2011; ‘ACC report: why ASADA needs teeth,’ v11(3) Mar 2013 in World Sports Advocate.

35. Wood Review p11; pp172-3; p176-185.36. This phrase only appears on p11 Wood Review.37. Wood Review p172 para 7 - The proposed new NSIC Joint Intelligence

and Investigations Unit is to be responsible for: ‘intelligence collection and analysis for the broad range of sports integrity issues; liaison with domestic and international law-enforcement agencies and criminal intelligence commissions; and referral services.’ Wood Review p172 para 8 - the proposed new Strategic Analysis Unit is to be responsible for: ‘conducting open-source threat identification and analysis.’ It is not clear if it is limited to gambling. Wood Review p172 and p179 Recommendation 43: The Australian Criminal Intelligence Commission Sports Betting Integrity Unit is to be transferred into the NSIC.

38. https://ssrn.com/abstract=2836388 [last accessed 7 Sept 2018].39. Wood Review p185.40. Wood Review p11. Noting that while the NSIC will be assisting sports, the

regulation function also requires the enforcement of integrity policy.41. Wood Review p28. While p37 Key Finding 6 states that ‘Equally important

is the ability of governments and the sport sector to adequately respond to other integrity issues in the sporting sphere including: harassment, bullying and discrimination; child protection; health and safety issues; accreditation of athlete support personnel; regulation and supply of performance and image enhancing drugs, including in sporting and dietary supplements; gender issues; and corruption of new and emerging sports without identifiable controlling bodies (for instance, e-sports).’ It has not been specified whether the NSIC would have jurisdiction for these issues.

42. Except that behaviour such as hits behind the play, high tackles, professional fouls, ball tampering etc, could be expected to come within the NSIC’s jurisdiction if there was a gambling motivation to the conduct.

43. Wood Review p171 Key finding 4 states that ‘Australia needs an independent, central, national body with the expertise and reach to monitor issues across the sports integrity continuum [...] This includes monitoring and developing responses to new and emerging issues including the ongoing accreditation of athlete support personnel; supply and use of performance and image enhancing drugs; gender issues in sport; wagering on emerging sports without a controlling body (such as e-sports); child protection; and player welfare issues, particularly at junior level.’

44. Eg: p53 and Athlete and Official Vulnerability, Wood Review pp58-59.45. It is telling that the section titled; ‘Why does integrity in sport matter?’

opens with a quote from the then IOC President, Jacques Rogge, from 2011 stressing the importance of integrity for “the legitimate sports gambling industry” creating an ironic paradox when presented together with Rogge’s 2010 statement that: “Cheating driven by betting is

undoubtedly the biggest threat to sport after doping.” Wood Review p29.46. At p9 of the Wood Review there is a reference to: ‘those other

forms of manipulation that are directed towards securing other sporting advantages [where] a role might be preserved for monitoring of such activity by the proposed NSIC.’

47. Wood Review pp56-57.48. Many examples, including: 1. The failure of the German prosecutors to

finalise their investigation into the broadcasting deals entered into by the International Handball Federation President, Moustafa, allowing for his fourth re-election: See summary in Ordway, C. Presentation, Crime and Sport Research Conference (2012) University of Canberra, published by Play the Game, Knowledge Bank, 23 April 2012, http://www.playthegame.org/news/news-articles/2012/new-in-knowledge-bank-threats-to-sporting-integrity-doping,-match-fixing-and-corruption/; Handball Planet, Dr Hassan Moustafa Re-elected for IHF President (2017, 11 Nov) http://www.handball-planet.com/dr-hassan-moustafa-re-elected-for-ihf-president/ 2. FIFA granting of the hosting rights for the men’s World Cup to Qatar and Russia despite evidence of corrupt behaviour by both winning and losing bids, eg: Blake, H., & Calvert, J. (2015). ‘The ugly game: The Qatari plot to buy the World Cup,’ Simon and Schuster. and in Australia eg: Mersiades, B. (2018) ‘Whatever It Takes: The Inside Story of the FIFA Way,’ Powderhouse Press.

49. http://playthegame.org/fileadmin/documents/Good_governance_reports/AGGIS_Final_report.pdf

50. https://itunes.apple.com/au/podcast/the-ticket-abc-news/id898138253?mt=2&i=1000417159773

51. I’ve used the expressions ‘cheating to win’ and ‘cheating to lose’ frequently in publications and in media interviews, including, eg: Nehme, M. and Ordway, C. ‘Governance and Anti-Doping: Beyond the Fox and the Hen House,’ ‘Doping in Sport and the Law’ (ed by Haas and Healey) (2016) Hart Publishing, pp207-231, and it was pleasing to see it was also picked up in the Wood Review at p41.

52. The second nation is New Zealand: https://drugfreesport.org.nz/what-we-do/about-doping-in-sport/history The first national anti-doping organisation for Australia was the Australian Sports Drug Agency (‘ASDA’) established via the ASDA Act 1990. ASDA was replaced by the ASADA Act 2006, and the National Anti-Doping Scheme regulations https://www.legislation.gov.au/Details/C2006A00006 The ASADA Act was most recently amended on 1 July 2018 to remove the Advisory Group: https://www.legislation.gov.au/Series/C2006A00006

53. http://www.theage.com.au/sport/wada-against-jail-terms-for-athletes-20141116-11o25a.html See also https://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1003&context=slej

54. https://www.wada-ama.org/en/media/news/2018-06/quebec-assembly-protects-wadas-mission-to-fight-doping-in-sport

55. Wood Review Recommendation 19 p115; p15, 106, 113.56. https://globalsportmatters.com/science/2018/08/14/has-

wada-helped-or-hurt-the-anti-doping-movement/57. Wood Review p107 and p129-130.58. The submission by the Australian Athlete’s Alliance to the Wood Review

has not been published, but is referred to in the Wood Review. See also Crocker, A. (2014) ‘The Integrity of Sport and The Privilege Against Self-Incrimination - Is ASADA Playing by the Rules?’ https://www.monash.edu/__data/assets/pdf_file/0006/139803/schwab-paper.pdf

59. Wood Review p129.60. The keynote presentation by Declan Hill to the 2009 Australian & New

Zealand Sports Law Association Conference based on his book, Hill, D. (2008). ‘The fix: Soccer and organized crime’ has been credited as being enormously influential. See for example, Opie, H. & Lim, G., (2017). ‘The Australian legal framework for countering match-fixing’ pp. 59-74 at p60 and Ordway, C. (2017) ‘Police and investigative cooperation on match-fixing’ pp. 171-186 at p175; both chapters in Steele, S., & Opie, H. (eds) ‘Match-Fixing in Sport: comparative studies from Australia, Japan, Korea and Beyond.’

61. Section 51(xxix), https://www.legislation.gov.au/Details/C2013Q0000562. http://www.health.gov.au/internet/main/publishing.nsf/

Content/national-policy-on-match-fixing-in-sport63. Wood Review p67 (the European Sport Security

Association and Sportradar respectively).64. National Match-Fixing Policy (2011) s.3.4.65. https://lawsocietynt.asn.au/about-lsnt/news/363-standing-

council-on-law-and-justice-18-november-2011-.html66. Wood Review p103-15; Opie, H. & Lim, G., ‘The Australian legal framework for

countering match-fixing’ pp. 59-74 in Steele & Opie (eds) (2017) ‘Match-Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond.’

67. Wood Review p8, 13, 65 and 70.68. Wood Review p9 - other forms of manipulation (eg:

tanking/avoiding relegation not related to gambling) remains regulated by the sport integrity codes.

69. https://www.coe.int/en/web/sport/conference-201870. McKenzie, B (2018).

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UNODC United Nations Office on Drugs and Crime

SYMPOSIUM

of the Anti - Corruption Academic (ACAD) Initiative

Moscow, 30-31 October 2015

Compendium

of the papers submitted by the participants

Vienna 2015

PUBLICATION #8

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120120120

SPORTS CORRUPTION: JUSTICE AND ACCOUNTABILITY

THROUGH THE USE OF THE UNCAC AND THE UNTOC

By Nikos Passas

By Catherine Ordway

The corruption scandal currently engulfing football’s international governing body, t he

Fédération Internationale de Football Association (FIFA), and the recent allegations of

bribery in order to host the 2006 World Cup in Germany1

raise a number of issues.

Allegations in recent years of bribery, embezzlement, misappropriation, money-

laundering, vote rigging and other abuses of power within several international sports

federations demand that this type of misconduct be investigated and prosecuted. In the

absence of a comparable international integrity oversight body similar to the World Anti-

Doping Agency (WADA), it is timely to examine the applicability and potential

usefulness of existing international instruments.2

Given that the United Nations Conventions against Corruption (UNCAC) and against

Transnational Organized Crime (UNTOC) represent the most comprehensive global

standards and have the highest number of States Parties (177 and 185 respectively, as of

October 2015), this paper examines in detail the applicability of these instruments to the

most prominent and challenging sports corruption instances revealed in recent times. The

misconduct covered by these instruments and their mutual legal assistance frameworks,

in addition to innovative provisions on dual criminality, asset recovery and the definition

of an organized criminal group, can significantly enhance international cooperation and

effective law enforcement. In this way, justice, accountability and greater transparency

will be boosted on a global scale.

1 Spiegel Online, “World Cup Scandal: Germany Appears to Have Bought Right to Host 2006 Tournament”, 16 October 2015, http://www.spiegel.de/international/world/documents-indicate-slush-fund-used-in-german-world-cup-bid-a-1058212.html [last accessed 19 October 2015].

1 Noting that the World Anti-Doping Agency (WADA) is also supported by the UNESCO International Convention Against Doping in Sport (2005), http://www.unesco.org/new/en/social-and-human-sciences/themes/anti-doping/international-convention-against-doping-

in-sport/ [last accessed 19 October 2015].

*Dr., Professor and Co-Director of Institute for Security and Public Policy, Northeastern University

**Professor of Practice, La Trobe University

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The application of United Nations Convention Against Transnational Organized

Crime (UNTOC)

The United Nations Convention Against Transnational Organized Crime (UNTOC) was

adopted in November 2000 and came into force in 2003. As of October 2015, 185 states

have ratified it and are parties to it. It constitutes an acknowledgement that cross-border

misconduct requires close international cooperation to tackle it. States parties are

mandated to introduce, if they do not already have, four basic criminal offences3. The

UNTOC provides an extensive facilitative legal basis and framework for extradition,

mutual legal assistance, international cooperation in law enforcement and capacity

building through information exchanges, training and technical assistance. The four

basic UNTOC offences are:

participation in an organized criminal group (Art. 5)

laundering of proceeds of crime (Art. 6)

corruption (Art. 8)

obstruction of justice (Art. 23)

States parties must criminalize all of these acts. It must be emphasized that trans-

nationality and involvement in an organized criminal group need not and should not be

elements of these offences in domestic law (Art. 34 (2)).

3 Art. 5. Criminalization of participation in an organized criminal group 1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, whencommitted intentionally: (a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity: (i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group; (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in: a. Criminal activities of the organized criminal group;

b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above described criminal aim; (b) Organizing, directing, aiding, abetting, facilitating or counseling the commission of serious

crime involving an organized criminal group.

2. The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual

circumstances. 3. States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized

criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for

purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the

United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession tothis Convention.

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The term “organized criminal group” is defined as a structured group of three or

more persons that exists for a period of time, acts in concert and aims to commit serious

crimes (i.e. crimes punishable by deprivation of liberty of at least four years or a more

serious penalty – Art. 2(b)) or other offences covered by UNTOC, in order to obtain a

direct or indirect financial or other material benefit (Art. 2)4. A structured group does not

require a formal organization, membership or structure, but it has to be more than just:

“…randomly formed for the immediate commission of an offence” (Art. 2(c)).

Participation in an organized criminal group is essentially agreeing to commit a

serious crime for financial or material benefit or knowingly taking part in criminal or

related activities of an organized criminal group to contribute to a given criminal aim.

States Parties can adopt different approaches to conspiracy or association, but the

important point is that domestic law is expected to ensure that all serious crimes

committed by organized criminal groups are covered.5

In this context, it is interesting to consider the criminal prosecutions initiated by

both the United States and Switzerland against high ranking members of the international

football association. FIFA, based in Zurich, Switzerland, owns the rights to the men’s

and women’s World Cups and is the custodian of what is known as ‘the world game’. On

27 May 2015, the US Department of Justice announced that it had indicted nine FIFA

officials and five sports marketing executives for criminal enrichment, conspiracy and

corruption through racketeering, bribery, wire fraud and money laundering.6

The 47-

count indictment alleges that the co-conspirators systematically paid, and agreed to pay,

well over US$150 million in bribes and kickbacks to obtain lucrative media and

marketing rights to international football tournaments over a 24-year period. The highest

ranking FIFA official named is the previous President of the football association for the

4 Ideologically motivated offences are thus not covered. 5 One non sport benefit of this clause is that it addresses inchoate offences, such as those relating to piracy, which is not otherwise covered by the United Nations Convention on the Law of the Sea (UNCLOS). 6 US Office of Public Affairs, Department of Justice, Press Release, “Nine FIFA Officials and Five Corporate Executives Indicted for Racketeering, Conspiracy and Corruption”, 27 May 2015, http://www.justice.gov/opa/pr/nine-fifa-officials-and-five-corporate-

executives-indicted-racketeering-conspiracy-and, [last accessed 3 October 2015]. Note that some jurisdictions, such as Russia which

was awarded the rights to host the 2018 FIFA men’s World Cup, have criticised the actions taken by the US: S Rainsford, “Russia cries foul: Fifa arrests 'a conspiracy' says Moscow”, BBC News, 28 May 2015, http://www.bbc.com/news/world-europe-32925637

[last accessed 18 October 2015]

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http://www.bbc.com/news/world-europe-32925637

[last accessed 3 October 2015].

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Americas (CONCACAF), and President of the Caribbean Football Federation, Jack

Warner.

It is clear that the fourteen-man conspiracy alleged by the US can be considered to

be an organized criminal group for these purposes, even though many of those involved

are not US citizens.7

On 25 September 2015, the Swiss Office of the Attorney General

(OAG) commenced criminal proceedings against FIFA President Joseph S. Blatter on

‘suspicion of criminal mismanagement’ and on ‘suspicion of misappropriation’

(Arts. 158 and 138 of the Swiss Criminal Code). These proceedings relate to a

broadcasting agreement between Blatter and Warner in 2005, and a 2011 payment made

by Blatter to Michel Platini, President of the Union of European Football Associations

(UEFA).8

It is not yet clear whether the purpose for making these corrupt payments was

for Blatter to secure his presidential position (vote rigging), or whether it had other

criminal motivations, such as money laundering.

The offence of money laundering includes acts designed to obscure the criminal

source of assets through conversion or transfers (‘layering’). The offence covers the

concealment of the nature, source, location, disposition, movement or ownership of crime

proceeds. To the extent that this is consistent with the fundamental legal principles of

States Parties, the offence covers also the knowing acquisition of crime proceeds as well

as participation, association, conspiracy, attempts, aiding, abetting and facilitation of

money laundering (Art. 6).

The mandatory offence of corruption covers the promise, offer, giving,

solicitation or acceptance of any undue advantage to/by a public official in order to act or

refrain from acting in any matter relating to the official’s public duties (Art. 8). UNTOC

7 The jurisdictional link with the US here is the use of US bank accounts, and meetings held in the US between co-conspirators: P

Blake, “Fifa scandal: Why the US is policing a global game”, BBC News, 28 May 2015, http://www.bbc.com/news/world-us-canada- 32889845 [last accessed 18 October 2015]. 8 Office of the Attorney General of Switzerland, Press Release, “Criminal proceedings against the President of FIFA”, 25.09.2015, https://www.news.admin.ch/message/index.html?lang=en&msg-id=58891 [last accessed 3 October 2015]. See also the discussion by A Brown, “Swiss Open Criminal Proceedings Against Blatter”, Sport Integrity Initiative, 27 September 2015, http://www.sportsintegrityinitiative.com/swiss-open-criminal-proceedings-against- blatter/?utm_content=buffera2d6b&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

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http://www.news.admin.ch/message/index.html

http://www.sportsintegrityinitiative.com/swiss-open-criminal-proceedings-against-

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also provides for the optional offence of bribery of foreign public officials or

officials of international organizations – which is mandatory under the OECD convention

on Combating Bribery of Foreign Public Officials in International Business Transactions

– and other types of corruption, such as the abuse of power, abuse of function, illicit

enrichment, etc.9

(See the discussion on the UNCAC below).

It is interesting to consider in this context whether the definition of “officials of

international organizations” could apply to paid or unpaid representatives of bodies such

as FIFA, WADA or the International Olympic Committee (IOC) for example. An

obvious application of this in a sports context relates to allegations that the self-confessed

doper and seven time Tour de France winner, Lance Armstrong, paid a bribe to the

international cycling federation (UCI).10

While doping is not a criminal offence in

Switzerland, unlike some other jurisdictions, the claim made by fellow team members

Floyd Landis and Tyler Hamilton, to the United States Anti-Doping Agency that

Armstrong bragged that he had made a ‘donation’ to the UCI to make the positive drug

test from the 2001 Tour de Swiss “go away” could theoretically fall within this Art. 8.11

In this case however, the Cycling Independent Reform Commission examined these

claims and ultimately found that, while Armstrong had made a US$25,000 donation to

the UCI in 2002, and that accepting this donation may not have been a prudent course of

action for the UCI given the allegations surrounding Armstrong at the time, there was no

evidence of a ‘positive’ drug test from this event, and the UCI had not committed any

offence.12

In addition, the UNTOC can be applied to any offences that are:

transnational

9 The last mandatory UNTOC offence is obstruction of justice: the use of force, threats or intimidation or promise, offer or giving of undue advantages, in order to interfere with giving of evidence or testimony or to interfere with exercise of duties of judicial or law-

enforcement official in connection with proceedings on any UNTOC offence. 10 Affidavit of Floyd Landis, p. 4, and Affidavit of Tyler Hamilton, pp. 13-14. See United States Anti-Doping Agency v. Lance Armstrong, Reasoned Decision on Disqualification and Ineligibility (10 October 2012), http://cyclinginvestigation.usada.org/ [last accessed 18 October 2015] 11 Paragraph 2.4.1.1 “Disappearance of Lance Armstrong's positive test result at the 2001 Tour de Suisse”, Cycling Independent

Reform Commission Report (2015) pp161-166, http://www.uci.ch/mm/Document/News/CleanSport/16/87/99/CIRCReport2015_Neutral.pdf [last accessed 18 October 2015] 12 Cycling Independent Reform Commission Report (2015) p166 http://www.uci.ch/mm/Document/News/CleanSport/16/87/99/CIRCReport2015_Neutral.pdf [last accessed 18 October 2015]

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constitute serious crimes; and

are committed by an organized criminal group

A crime is considered transnational when it is committed (a) “...in more than one

State”; or (b) “...in one State but a substantial part of its preparation, planning, direction

or control takes place in another State”; (c) “in one State but involves an org anized

criminal group that engages in criminal activities in more than one State” or (d) “...in one

State but has substantial effects in another State” (Art. 3(2)).

Thus, sports crime and corruption can be addressed through the UNTOC in

multiple ways. The most straightforward ones would be whenever offenders act as or

participate in an organized criminal group, launder the proceeds of their crime, bribe

public officials or obstruct justice. These are quite likely scenarios given the social

organization of different types of sports misconduct as outlined above. Unless profits

from these offences are recycled into criminal enterprises or informal economies,

proceeds of crime would have to be laundered before they can be enjoyed in open and

legitimate transactions. Public officials in different positions may play a role in receiving

or giving bribes, turning a blind eye or facilitating the commission of sports crimes,

tampering with evidence, obstructing justice, assisting in the disposal of assets, money

laundering or resisting investigation of alleged offences.

Examples of such misconduct in the sport setting include allegations that national

or state government officials bribed members of international sports organizations to

obtain the right to host major events in their cities. The scandal relating to the IOC

awarding the rights to host the 2002 Olympic Winter Games to Salt Lake City rocked the

Olympic movement. In exchange for their votes, IOC members were found to have been

variously bribed through the provision of medical care for relatives, workplace

internships or scholarships at major universities for their children, expensive guns and

majorly reduced land deals.13

13 B Mallon, “The Olympic Bribery Scandal”, Journal Of Olympic History, May 2000, http://library.la84.org/SportsLibrary/JOH/JOHv8n2/johv8n2f.pdf [last accessed 16 October 2015]

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The UNTOC can also apply to any ‘serious crime’ that is transnational and

committed by an organized criminal group. This is at the discretion of States parties,

which need to make sure that sports-related offences are criminalized and punishable by

four years of imprisonment or more severe penalties. This means these offences could

equally apply to ‘cheating to win’ (for those jurisdictions which criminalize sport doping

offences14

), and to ‘cheating to lose’ (match-fixing offences, such as those criminalized

by Australian states15

), as well as to corruption and fraud offences. Therefore, not only

does the UNTOC provide for the main offences but it also affords a framework for

dealing with the proceeds and instrumentalities of these crimes. This is a central issue for

control, as the international community will be able to reduce or remove the incentives

for sports-related crime when it can be established where the money or advantages go,

who makes illicit payments, and who benefits from them.

One case study which can be considered in this context is the public funding

sponsorship of the US Postal Service cycling team and the admission of systemic doping

by Lance Armstrong and the team.16

This involved what is being termed ‘sporting fraud’

over a number of years from 1998 and implicated 12 athletes and five support staff.17

This can also be considered to be trans-national in the sense that the US Postal team

competed internationally, and received prize money and sponsorships fraudently outside

of the US, including using Swiss bank accounts and other devices intended to avoid

detection.

Whenever available, any of these options outlined above would allow States to

establish jurisdiction and benefit from extensive possibilities with respect to extradition,

mutual legal assistance (esp. regarding victims, witnesses, seizure and confiscation of

proceeds and instrumentalities of the offence, evidence located in the requested State

14 C McKenzie (2007) “The use of criminal justice mechanisms to combat doping in sport”, Bond University, http://epublications.bond.edu.au/slej/4 [last accessed 16 October 2015] 15 The majority of States and Territories in Australia have enacted legislation to create a crime a match-fixing, attracting a maximum penalty of 10 years in jail, in accordance with the National Policy on Match-Fixing in Sport, Australian Commonwealth Government, (June 2011) http://www.health.gov.au/internet/main/publishing.nsf/Content/national-policy-on-match-fixing-in-sport [last accessed 19 October 2015] 16 T Tygart, “Statement From USADA CEO Travis T. Tygart Regarding The U.S. Postal Service Pro Cycling Team Doping Conspiracy “, 10 October 2012, http://cyclinginvestigation.usada.org/ [last accessed 18 October 2015] 17 “Report On Proceedings Under The World Anti-Doping Code and the USADA Protocol”, USADA, 10 October 2012, http://d3epuodzu3wuis.cloudfront.net/ReasonedDecision.pdf [last accessed 4 October 2015]

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party, etc.), international cooperation, the use of special investigative techniques (e.g.

undercover and proactive investigations), and joint investigations.

The UNTOC provisions harmonize extradition under existing treaties and other

arrangements and make extradition available for all UNTOC offences. States Parties

cannot refuse extradition solely on the basis of fiscal matters. The UNTOC also contains

an aut dedere aut iudicare (extradite or prosecute) obligation (Art. 16(10)). It is

noteworthy that the obligation to “submit the case without undue delay to its competent

authorities for the purpose of prosecution” springs from “the request of the State Party

seeking extradition”. Extradition may be refused when the requested State has

“substantial grounds for believing that the request has been made for the purpose of

prosecuting or punishing a person on account of that person’s sex, race, religion,

nationality, ethnic origin or political opinions or that compliance with the request would

cause prejudice to that person’s position for any one of these reasons”.

The UNTOC provisions on mutual legal assistance are comprehensive (see

Art. 18) and quite useful. States Parties must “afford one another the widest measure of

mutual legal assistance in investigations, prosecutions and judicial proceedings in

relation to the offences covered” by UNTOC (Art. 18(1); emphasis added) and include

(Art. 18 (3)):

(a) Taking evidence or statements from persons;

(b) Effecting service of judicial documents;

(c) Executing searches and seizures, and asset freezing;

(d) Examining objects and sites;

(e) Providing information, evidentiary items and expert evaluations;

(f) Providing original or certified copies of relevant documents and records,

including government, bank, financial, corporate or business records;

(g) Identifying or tracing proceeds of crime, property, instrumentalities or other

things for evidentiary purposes;

(h) Facilitating the voluntary appearance of persons in the requesting State Party;

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(i) Any other type of assistance that is not contrary to the domestic law of the

requested State Party.

States Parties are able to rely on these UNTOC provisions and establish a legal

basis for mutual legal assistance (MLA) as an alternative to other existing instruments or

even in the absence of any bi-lateral or other arrangements. For the purposes of

requesting and extending MLA, it suffices that the offence is one covered by UNTOC

(see above) or that “the requesting State Party has reasonable grounds to suspect that the

[serious] offence …, is transnational in nature, including that victims, witnesses,

proceeds, instrumentalities or evidence of such offences are located in the requested State

Party and that the offence involves an organized criminal group” (Art. 18(1)).

Most MLA requirements are operational, rather than legislative, but Parties must

have in place the legal powers needed to produce and deliver assistance. Under UNTOC,

States Parties are required to designate a central authority to receive, execute or transmit

legal assistance requests and cannot refuse MLA on the grounds of bank secrecy.

Further, more direct liaison arrangements are allowed for other forms of cooperation. For

example, under Art. 27, States Parties can:

establish and enhance channels of communication

cooperate in inquiries concerning the identity, whereabouts and activities of

suspects; the movement of proceeds of crime or instrumentalities

exchange information on:

o specific means and methods used by organized criminal groups

o general trends, analytical techniques, definitions, standards and

methodologies

Investigative measures are also supported by the UNTOC, including agreements

on joint investigations (Art. 19), domestic and international/cooperative use of special

investigative techniques - such as controlled deliveries, electronic or other forms of

surveillance and undercover operations (Art. 20) – and measures to encourage those

involved in transnational organized crime to cooperate with law enforcement authorities

(Art.26). In the anti-doping setting, WADA encourages signatories to the World Anti-

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Doping Code to enter into collaborative and information-sharing arrangements with law

enforcement18

. WADA itself has signed a Cooperation Agreement with the International

Criminal Police Organization (INTERPOL)19

and a Memorandum of Understanding with

the World Customs Organization (WCO).20

UNTOC is replete with additional provisions regarding practical measures to

enhance and facilitate international cooperation. For instance, provisions with application

to piratical events include those regarding the confiscation of money, property or other

assets deriving from UNTOC offences (Art. 12-14), as well as assistance and protection

for witnesses and victims (Art. 24-25)21

.

In short, the UNTOC may provide a common framework for States Parties around

the world, when they wish to investigate, prosecute and generally control sports crime

and corruption in a collaborative manner. On the other hand, this proposition is not

simple in its execution due to a series of challenges in UNTOC’s effective

implementation.

UNTOC Implementation Challenges

In terms of implementation, the UNTOC is not a simple document. Because it is

comprehensive and covers a lot of ground, its implementation relies not on a single

government body, but rather multiple units and agencies, including Ministries of Justice,

Finance, Foreign Affairs, as well as law enforcement, supervisory and other bodies. This

has challenged the capacity of many countries that may have the political will to

18 WADA Guidelines, “Coordinating Investigations and Sharing Anti-Doping information and Evidence”, 5 January 2011,

https://www.wada-ama.org/en/resources/world-anti-doping-program/coordinating-investigations-and-sharing-anti-doping- information [last accessed 18 October 2015] 19

Cooperation Agreement between WADA and INTERPOL, 2 February 2009, http://www.interpol.int/content/download/9287/68584/version/2/file/INTERPOL_WADA.pdf [last accessed 18 October 2015] 20

Memorandum of Understanding between WADA and WCO, 27 June 2011, http://www.wcoomd.org/en/media/newsroom/2011/june/wco-and-world-antidoping-agency-sign-groundbreaking- partnership.aspx [last accessed 18 October 2015] 21

A detailed outline of the UNTOC provisions can be found in the Legislative Guide for the Implementation of the UNTOC, which is available in all UN languages (http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html).

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http://www.interpol.int/content/download/9287/68584/version/2/file/INTERPOL_WADA.pdf

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implement but lack the means. As a consequence, States Parties need technical

assistance, which may not always be available in a timely fashion.22

The number and scope of different instruments that countries are called upon or

required to implement and comply with have generated a ‘regulatory tsunami’. In

addition to UNTOC, there are thirteen universal counter-terrorism instruments, the

UNCAC, sanctions and counter-proliferation of weapons of mass destruction under

Chapter VII of the UN Charter, Financial Task Force (FATF) Recommendations, just to

mention a few. As a result, many governments are overwhelmed and severely stretched.

Even at the level of reviewing requirements, progress, accomplishments and needs,

several countries, including those in Southeast Asia (which in the sport environment have

also been besieged with match-fixing scandals 23

), have reported a need for technical

assistance. Reports to the United Nations by States suggest that most technical assistance

is needed for training and capacity-building (25 per cent), legal assistance (20 per cent),

strengthening of international cooperation (16 per cent) and assistance in complying with

reporting requirements (16 per cent).24

In the cheating to lose, match-fixing, setting in sport, in the absence of a sport

convention, similar calls for support could have been answered in part through the FIFA-

Interpol training and capacity building center recently established in Singapore.25

Instead

of accepting money from implicated organizations such as FIFA however, the UNTOC

could provide the mechanism to assist countries, such as Singapore and Malaysia, to

implement novel witness protection solutions, such as that posed by journalist and

22 See for example the technical assistance and legal assistance needs illustrated in Figures 1, 2 and 3 in UNODC, Overview of technical assistance needs identified by States in their responses to the questionnaires/checklist on the implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto2009; CTOC/COP/WG.2/2009/2,

http://www.unodc.org/documents/treaties/organized_crime/CTOC_COP_WG_2_2009_2_E_revised_Feb_2010.pdf [last accessed 18

October 2015] 23 D Hill (2013), The Insider’s Guide to Match-Fixing in Football, Anne McDermid & Associates, Toronto 24 For example, see UNODC Overview of technical assistance requests made by States through the questionnaires/checklist on the implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, CTOC/COP/WG.2/2009/3, http://www.unodc.org/documents/treaties/organized_crime/CTOC_COP_WG2_2009_3_E.pdf [last accessed 18 October 2015] 25 Except this agreement has now been suspended in light of the prosecutions currently underway against FIFA Executives (referred to above): O Gibson, “Interpol suspends€20m FIFA partnership to fight match-fixing”, The Guardian, 12 June 2015, http://www.theguardian.com/football/2015/jun/12/interpol-suspends-fifa-match-fixing-partnership [last accessed 18 October 2015]

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http://www.unodc.org/documents/treaties/organized_crime/CTOC_COP_WG_2_2009_2_E_revised_Feb_2010.pdf

http://www.unodc.org/documents/treaties/organized_crime/CTOC_COP_WG2_2009_3_E.pdf

http://www.theguardian.com/football/2015/jun/12/interpol-suspends-fifa-match-fixing-partnership

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academic, Declan Hill. In his blog post on 23 September 2015, Hill proposes that,

instead of funding expensive conventions, such as the recent International Centre for

Sport Security (ICSS) “Financial Integrity and Transparency in Sport Forum”26

(which

Hill characterizes as ‘dead catting’ and ‘image laundering’ exercises 27

), the Qatari-funded

organization could instead pay to house convicted match-fixers such as Singaporean

match-fixer and inventor of the ghost game, Pal, or Malaysian national, Dan Tan, to give

evidence against all sports (and public) officials involved in criminal offences.28

Unfortunately, thus far, the identified needs of States Parties have not always been

at the top of priority lists both by the donor community and governments. As has been

pointed out, the strengthening of law enforcement and prosecutorial activities, services

and institutions especially against serious organized crime and corruption is

comparatively neglected (van Dijk, 2008). In addition to these issues, when available,

the quality of technical assistance extended to different countries and agencies is quite

diverse and occasionally leaves room for significant improvement.

Coordination of work conducted even within one capital city is another difficulty.

This is partly because of the independent actions of the numerous implementing

government agencies requesting and receiving assistance. Partly it is also due to the fact

that most bi-lateral aid agencies do not work closely with those of other countries.

Finally, the political will – a conditio sine qua non for effective implementation –

is not always strong enough, because the fight against the main UNTOC offences is not

26 ICSS, FITS Forum, Lausanne (3-4 Sept 2015), http://designsouq.com/news/read/us-experts-join-strong-international-field-for-fits- forum [last accessed 18 October 2015] 27 D Hill, “Dead catting, Image Laundering and why you should have nothing to do with the ICSS”, Blog, 15 September 2015, http://declanhill.com/dead-catting-image-laundering-and-why-you-should-have-nothing-to-do-with-the-icss/ 28 D Hill, “Requiem for a Fixer”, Blog, 23 September 2015, http://declanhill.com/requiem-for-a-fixer/ [last accessed 18 October 2015]: “Take the money they spend on one of their interminable conferences where they gather a group of people to speak nonsense to each other. Take the money for just one of those conferences and give it to Pal. Let him take his family and move to Sri Lanka. Give Pal enough money to be comfortable. Here is his one condition. He has to fly around the world and testify against all sports officials,

players and referees that he bribed. All the league officials. All the FIFA-connected people. All the team owners who used to pay

him to organize the fixes. All the internationally-ranked players and referees that he corrupted. If he is caught lying – even once – in his testimony, he goes back to Singaporean prison, this time for twenty years.

Pal’s potential testimony (like Dan Tan) would truly clean up the sport. It would strike a significant blow against the organized criminals inside football. However, it is a blow that the sporting establishment is desperate not to have happen. Better for them that

fixers like Pal and Tan are shut up where no one can hear them. Now the sporting establishment can carry on with their nonsensical

battle against fixing and the corrupt elements in their midst can continue to ruin the sport.”

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http://declanhill.com/requiem-for-a-fixer/

132132132

everywhere considered as a top priority. For example, currently, criminalizing

doping as defined via the Anti-Doping Rule Violations in the World Anti-Doping Code,

is unlikely to attract significant support (except in some jurisdictions for those most

serious or ‘aggravated’ doping offences such as seen in the Armstrong case above)29

and

match-fixing, even where distinguished from simply sports gambling or tanking, has very

little legislative appetite internationally.30

Nonetheless, provided the sports offences of

concern are criminalized domestically with a penalty of four years or more, UNTOC may

hold promise as a novel tool for controlling a whole range of sports misconduct primarily

because it does not involve curtailing signatory States sovereignty (see Art. 431

).

United Nations Convention against Corruption (UNCAC)

The UN Convention Against Corruption could be another good option, if sports

misconduct can be connected to any of its offences. The offences covered by the

Convention are distinguished between those that are mandatory (States parties are

obligated to establish domestic legislation criminalizing these) and those that are non-

mandatory (which remain at the discretion of the States parties). Mandatory Offences

include:

Active bribery of public officials (Art. 15 [a])

Passive bribery of public officials (Art. 15 [b])

Active bribery of foreign officials and officials of international organizations

(Art. 16 [a])

Money laundering (Art. 23)

Embezzlement, misappropriation and other diversion of public property (Art. 17)

Obstruction of justice

29 C McKenzie (2007) “The use of criminal justice mechanisms to combat doping in sport”, Bond University, http://epublications.bond.edu.au/slej/4 [last accessed 16 October 2015] 30 As set out above, Australia is an exception to this in the match-fixing setting, where a 10 year maximum jail penalty has been set in most States: National Policy on Match-Fixing in Sport, Australian Commonwealth Government, (June 2011), http://www.health.gov.au/internet/main/publishing.nsf/Content/national-policy-on-match-fixing-in-sport [last accessed 19 October 2015] 31 Art. 4. Protection of sovereignty. 1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. 2. Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

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133133133

Non-Mandatory Offences are:

Passive bribery of foreign officials and officials of international organizations

(Art. 16 [b])

Illicit enrichment (Art. 20)

Abuse of function (Art. 19)

Trading in influence (Art. 18)

Private to private bribery – active and passive (Art. 21)

Embezzlement in private sector (Art. 22)

The UNCAC elaborates much further the corruption-related offences which are

also covered by UNTOC and provides for several additional offences, which have indeed

proved very practical and popular in many countries, especially those which relate to

illicit enrichment. The offence of the bribery of foreign public officials and that

regarding officials of international organizations should be especially helpful in the sports

environment. Everything stated above with respect to the linkages of sports crimes with

UNTOC offences applies also to UNCAC, but some further advantages of applying

UNCAC should be underlined.

As of October 2015, the UNCAC has 177 States parties and enjoys a great deal of

momentum and genuine acceptance in the global South, thanks to its path-breaking

chapter on asset recovery and repatriation. The anti-corruption agenda has been linked

for obvious reasons to that of public procurement, development, rule of law and good

governance. The implementation of the UNCAC thus benefits from significant activity

and synergies with the development community, where the prevailing concerns are those

of institutional reforms and economic growth. The goals of the anti-corruption and

development communities are the same or entirely consistent (Passas, 2014), and as a

result many more resources are devoted to UNCAC-related reforms than for other

international legal instruments.

Another substantive advantage of the application of UNCAC is the advanced

mutual legal assistance (MLA) and international cooperation framework it provides for

willing States parties, which can make processes and exchanges even easier in practice.

For example, dual criminality (which is required by UNTOC) is relaxed by allowing the

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134134134

existence of different legal definitions, provided that the basic acts are the same in the

jurisdictions concerned. Also States Parties are required to provide MLA even in the

absence of dual criminality, if they are asked to apply non-coercive measures. Parties are

also allowed to collaborate on their own initiative, even if there is no dual criminality and

encouraged to exchange information informally and even without a previous request from

another State party32

.

However the challenges to the implementation of UNCAC are substantial. In

addition to those challenges listed with respect to the implementation of the UNTOC,

which are even more applicable to the broader and more comprehensive UNCAC. Its

chapter on prevention chapter (Chapter II, Art. 5-14), which constitutes a blueprint for

good governance in general, contains so many measures, policies and practices that the

full and effective implementation of the UNCAC for most countries is a long-term

project. By a long list of metrics (WBI, Global Integrity, TI CPI, etc.), despite substantial

investment in resources, technical assistance and capacity building, the world can and

should do a much better job at improving its response against corruption and lack of

integrity in business, sport and government.

Conclusion

The main point of this paper is that the contemporary manifestations of sports crime and

corruption are not adequately addressed by laws and frameworks developed with these

offences in mind. Alternative approaches ought to be considered, including the resort to

comprehensive, global instruments enjoying global consensus support, which can enable

extensive international cooperation and practical solutions, as a range of crimes can be

defined as convention offences or offences that can be tackled on the basis of these

conventions. The UNTOC and the UNCAC hold pragmatic promise despite the serious

implementation challenges on the ground, which make progress incremental and slow.

One essential vital condition is that we develop genuine political will to activate the use

of these Conventions for sports crime control.

32 See Legislative Guide for the Implementation of the UNCAC: http://www.unodc.org/unodc/en/treaties/CAC/legislative-guide.html

[last accessed 18 October 2015].

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135135135

The final points to raise here toward assisting with the planning of such creative

applications and assisting with the good work of many donor organizations and

government agencies are lessons drawn from international implementation practice and

experience. Precisely because of the significant activity necessary for some time to

come, three main guidelines should be taken into consideration.

First, countries and government bodies may express political will to implement

these complex conventions, but the best results can be expected when officials are

convinced about the concrete benefits they will derive in terms of their own priorities and

policy objectives. Incentives are thus of paramount importance. When countries see for

themselves the multiple applications and usefulness of these conventions (for example

with respect to improved economic growth, foreign investment, rule of law and a

criminal justice system that is better able to raise revenue and mete out justice), efforts

will be better resourced and supported.

Second, efforts must revolve around a strategy. These projects are long term,

while political necessities demand short-term accomplishments. A well-constructed

strategy would set long-term objectives and ensure the smaller scale programs and

projects meet their targets but are also instrumental and conducive to the attainment of

ultimate goals. In this way, momentum and credibility will grow, legitimacy will be

strengthened and the process will become sustainable.

Third, this strategic effort must be based on outreach and consensus that includes

all stakeholders, including the private sector, sports governance institutions, civil society,

academia, and quite importantly, the private sector. Where everyone participates and

owns the overall project, the long-term success will be based on a more solid foundation

and will benefit all contributors.

Sports crime and corruption could thus be tackled through these innovative UN

instruments, but the best outcomes for all types of security and other serious crime threats

will be achieved through the concerted and thoughtful efforts described above.

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136136136

References:

Australian Commonwealth Government, (June 2011) “National Policy on Match-Fixing in Sport”,

http://www.health.gov.au/internet/main/publishing.nsf/Content/national-policy-on-match-fixing-in-sport

P Blake, “Fifa scandal: Why the US is policing a global game”, BBC News, 28 May 2015, http://www.bbc.com/news/world-us-

canada-32889845

A Brown, “Swiss Open Criminal Proceedings Against Blatter”, Sport Integrity Initiative, 27 September 2015,


blatter/?utm_content=buffera2d6b&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

Cycling Independent Reform Commission Report (2015)


O Gibson, “Interpol suspends€20m FIFA partnership to fight match-fixing”, The Guardian, 12 June 2015,


D Hill (2013), The Insider’s Guide to Match-Fixing in Football, Anne McDermid & Associates, Toronto

D Hill, “Dead catting, Image Laundering and why you should have nothing to do with the ICSS”, Blog, 15 September 2015,


D Hill, “Requiem for a Fixer”, Blog, 23 September 2015, http://declanhill.com/requiem-for-a-fixer/

ICSS, FITS Forum, Lausanne (3-4 Sept 2015), http://designsouq.com/news/read/us-experts-join-strong-international-field-for-fits-

forum

C McKenzie (2007) “The use of criminal justice mechanisms to combat doping in sport”, Bond University,


B Mallon, “The Olympic Bribery Scandal”, Journal Of Olympic History, May 2000,


Office of the Attorney General of Switzerland, Press Release, “Criminal proceedings against the President of FIFA”, 25 September

2015, https://www.news.admin.ch/message/index.html?lang=en&msg-id=58891

N Passas, (2014) “The Alignment of the Anti-Corruption and Development Agendas: The UN Convention against Corruption as a Catalyst” in

Marilda Rosado de Sa Ribeiro & Ely Caetano Xavier Junior (Eds.), Direito Internacional dos Investimentos (International Investments Law) (pp.

363-391) Rio de Janeiro: Renovar.

S Rainsford, “Russia cries foul: Fifa arrests 'a conspiracy' says Moscow”, BBC News, 28 May 2015, http://www.bbc.com/news/world-

europe-32925637

Spiegel Online, “World Cup Scandal: Germany Appears to Have Bought Right to Host 2006 Tournament”, 16 October 2015,


233


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http://www.news.admin.ch/message/index.html

http://www.bbc.com/news/world-


137137137

T Tygart, “Statement From USADA CEO Travis T. Tygart Regarding The U.S. Postal Service Pro Cycling Team Doping Conspiracy

“, 10 October 2012, http://cyclinginvestigation.usada.org/

UNESCO International Convention Against Doping in Sport (2005), http://www.unesco.org/new/en/social-and-human-

sciences/themes/anti-doping/international-convention-against-doping-in-sport/

UNODC, Overview of technical assistance requests made by States through the questionnaires/checklist on the implementation of the

United Nations Convention against Transnational Organized Crime and the Protocols thereto, CTOC/COP/WG.2/2009/3,


UNODC, Overview of technical assistance needs identified by States in their responses to the questionnaires/checklist on the

implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto2009;

CTOC/COP/WG.2/2009/2,


UNCAC, Legislative Guide for the Implementation of the UNCAC, http://www.unodc.org/unodc/en/treaties/CAC/legislative-

guide.html

UNTOC, Legislative Guide for the Implementation of the UNTOC, (http://www.unodc.org/unodc/en/treaties/CTOC/legislative-

guide.html)

USADA, “Report On Proceedings Under The World Anti-Doping Code and the USADA Protocol”, 10 October 2012,


(USADA) United States Anti-Doping Agency v. Lance Armstrong, Reasoned Decision on Disqualification and Ineligibility

(10 October 2012), http://cyclinginvestigation.usada.org/

US Office of Public Affairs, Department of Justice, Press Release, “Nine FIFA Officials and Five Corporate Executives Indicted for

Racketeering, Conspiracy and Corruption”, 27 May 2015, http://www.justice.gov/opa/pr/nine-fifa-officials-and-five-corporate-

executives-indicted-racketeering-conspiracy-and

J Van Dijk (2008) The World of Crime, Thousand Oaks, CA: Sage.

(WADA) Cooperation Agreement between WADA and INTERPOL, 2 February 2009,


WADA Guidelines, “Coordinating Investigations and Sharing Anti-Doping information and Evidence”, 5 January 2011,

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(WADA) Memorandum of Understanding between WADA and WCO, 27 June 2011,

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234


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http://www.wcoomd.org/en/media/newsroom/2011/june/wco-and-world-antidoping-agency-sign-groundbreaking-partnership.aspx

Chapter 5: Asset protection (Athlete Welfare) – Financial Security and Inclusion (transgender athletes)

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Chapter 5: Asset Protection (Athlete Welfare) – Financial Security and Inclusion

Publication #9, “Why this Australian Supported Germany to Win the World Cup” (2014),

was an early exploration of the idea that strong integrity practices off-field would translate

into on-field excellence, which were later expanded on in Publication #1 Ordway and Opie

(2017). This concept was suggested by the wording of the Australian Sports Commission’s

Winning Edge high performance strategy (2012-2022) that linked sporting outcomes to good

governance and integrity through its Mandatory Sports Governance Principles (updated June

2015).1 This was also referred to in Publication #3 “Gender Equality Achieved Through

Love: promoting an Ethics of Care [EoC] Approach in Football (FFA)” (unpublished).

In Publication #1, Ordway and Opie (2017) applied the asset protection idea featured in the

integrity model developed by the Australian Commission for Law Enforcement Integrity

(ACLEI), to the sports context. Ordway and Opie state that:

Integrity in the organisation can be seen as an asset in the same way as both athletes

and staff need to be developed and empowered by their sports within an integrity

framework. In his book, The Insider’s Guide to Match-Fixing in Football, Declan

Hill (2013) went further by arguing that the first priority [in protecting integrity] is to

address baseline survival issues. Hill called on sports organisations to reduce

integrity risks through providing for the athletes’ welfare, paying them appropriately

and on time and supporting vulnerable athletes (e.g., those with gambling and

prescription drug addictions). WADA has also funded a number of important social

science studies into doping athletes’ motivations and rationale in order to assist in

shaping the education and welfare programs (Moston, Engelberg, & Skinner, 2015).

It is clear from both WADA’s and Hill’s research that financial rewards are

motivators both in cheating-to-win (doping) and cheating-to-lose (match-fixing)

scenarios which leads to the conclusion that measures aimed at minimising the

financial vulnerability of players will, at least in some cases, head off such cheating

activity. (Ordway & Opie 2017 pp52-53 – brackets added).

By looking at the German approach as a moral exemplar, Publication #9 reviewed a number

of the strategies later outlined in Ordway and Opie (2017) as having had an influence on the

1 Note that the Australian Institute of Sport formally ceased using the Winning Edge brand as its high performance strategy immediately following a board meeting of the Australian Sports Commission on 14 December 2017, retrieved from https://www.ausport.gov.au/ais/australias_winning_edge. The Australian Sports Commission was re-named Sport Australia on 1 August 2018

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https://www.ausport.gov.au/ais/australias_winning_edge


culture of German sport and, by implication, foreign athletes playing in the German

professional league. Publication #9 also first featured the phrases: cheating-to-win (doping)

and cheating-to-lose (match-fixing), and set out definitions of the term “match-fixing” which

were later refined in Ordway and Opie (2017).

Deliberately timed to coincide with the fever-pitched interest in the men’s FIFA

(international football) World Cup event held in Brazil in 2014, Publication #9 explored

broader sports integrity questions within a football context. Germany, as a nation, already

enjoyed a strong credit rating and low corruption perception index rating, and its men’s

football team was ranked second in the world by FIFA going into the tournament. However,

Publication #9 argues that the proactive steps taken by ethical leaders, including: the

partnership with Transparency International (Partnerships are discussed further in Chapter 3),

the legislative and regulatory measures (expanded on in Chapter 4) and most importantly, the

support and protection of the ‘assets’ (the players), through fair financial compensation and

conducting awareness and education programs, is argued to have further strengthened the

German position against match-fixing opportunism, to allow that team the best chance of

taking out the coveted prize.

Clearly however, as discussed in Annexure B(o) “How Fixed Will the World Cup Be?”, and

in a BBC interview with Shari Vahl (2018), there were factors, other than integrity resilience,

coming into play four years later, when Germany became the third defending champion in a

row to be eliminated at the group stage (FIFA 2018). Sports betting, and online betting, is

even more pervasive than it was in 2014, and it was worth an estimated $700 billion a year

then (Sorbonne-ICSS 2014). Where there is gambling on sport, there are criminals

attempting to influence the result, or pervert the progress of the competition for financial

gain.

In addition, the Russian FIFA World Cup in June 2018 was held in quite a different integrity

environment from that of Brazil 2014. Since questions were first raised about how Russia

(and Qatar: Blake & Calvert 2015) won the right to host the event, the Russian system of

doping was exposed in athletics and throughout the Sochi 2014 Olympic Winter Games

(McLaren 2016), resulting in bans to their Olympic and Paralympic athletes, their anti-doping

agency and laboratory, which continue today. As distinct from the culture created by the

2015 information-sharing and collaborative efforts described in Publication #5, “Police and

investigative co-operation on match-fixing: the Australian experience”, it is hard to imagine

that teams arriving in Russia would have been greeted by a sporting integrity ‘vibe’. As

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challenging as it is for sports organisations to eliminate all risk, it is unlikely that the culture

of corruption present in the 2018 FIFA World Cup host nation can be hypothesised to have

had an influence on, what was expected to be, a strong and resilient German team. Instead,

perhaps the idea of Bach (2018) that: “inertia, risk aversion, and success-induced

complacency” in both the management and players is to blame, and should be further

researched at a later stage.

As was referred to above, Hill’s research into match-fixing (2008; 2013) found that athletes

are routinely bribed by fixers seeking to guarantee the outcome of matches and/or to

perpetuate gambling fraud, such as betting on wides bowled in cricket, or on penalties

awarded in football. Fixers exploit the vulnerabilities of athletes through a range of

incentives ranging from: money, gifts, drugs, gambling accounts and prostitutes (Hill 2008).

As discussed above, while it is not possible to protect sport from all forms of exploitation, as

has been argued throughout this thesis, that if sports organisations use an over-arching Ethics

of Care [EoC] perspective to include athletes in wellbeing programs then this will help to

minimise an otherwise unacceptably high risk.

An EoC approach focuses on creating greater empathy, mutual respect, justice, equality,

fairness, trust, solidarity and responsibility, particularly for those stakeholders who have been

traditionally excluded from our sports, including, in Publication #3, women, and in

Publication #10, transgender athletes. The argument made is, if our sports are more

inclusive, and provide better care for all our athletes, for their mental health, physical safety

and financial security, then it is argued that sport as a whole will be better protected from

internal and external integrity challenges.

Publication #10, Does sex segregated sport still hold value? (2018)2, uses the Australian

Football League (AFL) decision to exclude transgender woman, Hannah Mouncey, from the

AFL Women’s League (the AFLW) as a case study, to examine the treatment of marginalised

members of the community by sports organisations. Using the EoC approach, concepts of:

“discrimination”, “fairness”, “unfair advantage” and a “level playing field” were examined.

International principles of human rights and inclusion in sport were reviewed against the

Victorian anti-discrimination legislation, and the AFL policy and public statements. The idea

2 The candidate is grateful to the comments provided on an early draft of this article by my supervisor, Dr Richard Lucas, and Bond University academic Annette Greenhow. Appreciation too for the roller derby insights from Dr Adele Pavlidis of Griffith University and clarification on the timing for the development of Australian Sports Commission (now Sport Australia) guidelines by Dr Merrilee Barnes.

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of diversity within team sports, and between men’s and women’s elite level collision sport

teams, was also examined against the AFL criteria of “strength, stamina and physique”.

Similarly, in Publication #1 Ordway and Opie (2017), the AFL’s “health” approach to illicit

drug use among its players, was compared with the inaction of the National Rugby League

(NRL) (p53). If the NRL had encouraged their professional clubs to be more proactive in

relation to vulnerable players, such as Ryan Tandy, who was known to have gambling and

drug addictions, it was argued that perhaps Tandy would not have been targeted and willing

to participate in match-fixing, and may still be alive today (Massoud 2014).

On one view, the AFL’s “health” approach in encouraging disclosure about their use of illicit

drugs has lessened the likelihood of Aussie Rules players being secretive, and reduces the

risk of vulnerable athletes being exploited and recruited into match-fixing and/or doping.

This ‘caring’ approach by the AFL appears to be at odds with the AFL’s decision to prevent

Mouncey from earning a living in the AFLW, particularly in circumstances where the AFL is

aware that Mouncey’s capacity to support herself through other means is severely limited by

her status as a transgender woman. The AFL’s decision to allow Mouncey to play in the

lower, State and Territory, leagues, and not the AFLW, initially appears to be partially

inclusive. However, the decision also contradicts the AFL’s argument that Mouncey enjoys

an unfair advantage (thereby justifying an exemption under the Victorian anti-discrimination

legislation).

To demonstrate that the AFL is an integrity-based organisation, Publication #10 argues that

the AFL needed to have developed a fair and inclusive policy, and to have applied that policy

in an open and transparent manner. In the Mouncey case, the AFL has not done that. This

decision sends a negative message to other marginalised athletes seeking inclusion, and

economic freedom, through sport. Instead, it is suggested that the AFL start from saying

“yes” (inclusion), except where evidence-based research supports a view that for health or

fairness reasons an athlete should be excluded.

Marginalised groups in society, including transgender, intersex, or other people with bodily,

sexual and/or physical diversity, have been shown to be at greater risk of mental health issues

(Rutherford et al 2012; Maycock et al 2009). Inclusive sport environments can play an active

and positive role in athlete welfare, particularly for mental well-being (Biddle & Asare 2011).

For sports organisations, as identified in the research by Hill cited by Ordway and Opie

(2016), unsupported, vulnerable athletes and officials present a risk to the integrity of the

organisation (Ordway & Opie p52). Anti-corruption research indicates that vulnerability may

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arise through poverty (including late or non-payment of salaries: Forrest 2012), greed,

addictions and/or other secrets (such as sexuality, illicit affairs or bodily diversity) which can

then be exploited by those seeking to manipulate athletes/ officials for their own benefit

(BaMaung & Cuddihy2018).

If it can be assumed that the culture created within: “sports organisations [that] have leaders

who are focused prominently on promoting an ethical vision for the organisation, ahead of

self-interest and greed, then the risk of on-field integrity issues would be significantly

diminished”, (Ordway & Opie 2017 p46), it can also be hypothesised that happy and healthy

athletes supported by that culture are less likely to compromise their sport. In this Chapter 5,

it has been argued that the German football federation achieved that outcome, while the AFL

has been inconsistent in their approach. It is therefore argued here that sports organisations

should start from an EoC position to consider athlete welfare (Asset Protection) first, and the

support of vulnerable athletes and officials should be included as a risk management anti-

corruption strategy.

References: Bach, D. (2018, 29 June). What Germany’s Spectacular World Cup Failure Can Teach Us About Management, Yale Insights, retrieved from https://insights.som.yale.edu/insights/what-germany-s-spectacular-world-cup-failure-can-teach-us-about-management BaMaung, D., & Cuddihy, J. (2018). Corruption: the exposure and exploitation of human vulnerabilities. In Corruption in Commercial Enterprise (pp. 117-135). Routledge. Biddle, S. J. H., & Asare, M. (2011). Physical activity and mental health in children and adolescents: A review of reviews. British Journal of Sports Medicine, 45, 886-895 Blake, H., & Calvert, J. (2015). The ugly game: The Qatari plot to buy the World Cup. Simon and Schuster. FIFA. (2018, 27 June). “Germany Ousted, Brazil Take Care of Business”, FIFA.com, retrieved from https://www.fifa.com/worldcup/news/2706-round-up-461-2971974 Forrest, D. (2012). The Threat to Football from Betting-Related Corruption. International Journal of Sport Finance, 7(2) pp99-116 at p114 Hill, D., (2008). The Fix, McClelland & Stewart, Toronto Hill, D., (2013). The Insider’s Guide to Match-Fixing in Football, Anne McDermid & Associates, Toronto McLaren, R. (2016, 9 December). The Independent Person 2nd Report, retrieved from https://www.wada-ama.org/sites/default/files/resources/files/mclaren_report_part_ii_2.pdf Mayock, P., Bryan, A., Carr, N., & Kitching, K. (2009). Supporting LGBT lives in Ireland: A study of the mental health and well-being of Lesbian, Gay, Bisexual and Transgender people. Moston, S., Engelberg, T., & Skinner, J. (2015). Self-fulfilling prophecy and the future of doping. Psychology of Sport and Exercise, 16, 201–207.

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https://insights.som.yale.edu/insights/what-germany-s-spectacular-world-cup-failure-can-teach-us-about-management

https://www.fifa.com/worldcup/news/2706-round-up-461-2971974

https://www.wada-ama.org/sites/default/files/resources/files/mclaren_report_part_ii_2.pdf


Massoud, J. (2014). The Penalty: The Inside Story of Ryan Tandy and Rugby League’s Most Notorious Match-Fixing Scandal. Allen & Unwin Ordway, C. (unpublished) “Gender Equality Achieved Through Love: promoting an Ethics of Care [EoC] Approach in Football (FFA)” [Publication #3] Ordway, C. (2014). Why this Australian Supported Germany to Win the World Cup, Sport & EU Review, 6(2) (Aut Nov 2014), 6-12. [Publication #9] Ordway, C. (2017). Police and investigative co-operation on match-fixing: the Australian experience. In S. Steele & H. Opie (Eds.), Match-fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond (pp. 171-186). London, England: Taylor & Francis, Routledge [Publication #5] Ordway, C. (2018). Does sex segregated sport still hold value? World Sports Advocate, 16(5) (May 2018), 16-18. [Publication #10] Ordway, C. & Opie, H. (2017). Integrity and corruption in sport. In N. Schulenkorf & S. Frawley (Eds.), Critical issues in global sport management (pp. 38-63). London, England: Taylor & Francis, Routledge [Publication #1] Rutherford, K., McIntyre, J., Daley, A., & Ross, L. E. (2012). Development of expertise in mental health service provision for lesbian, gay, bisexual and transgender communities. Medical Education, 46(9), 903-913 University Paris 1 Panthéon-Sorbonne and the International Centre for Sport Security (ICSS) (2014, 2 November) Protecting the Integrity of Sport Competition: The Last Bet for Modern Sport, An executive summary of the Sorbonne-ICSS Integrity Report Sport Integrity Research Programme, 2012-14, Paris, Sorbonne-ICSS Research Programme on Ethics and Sports Integrity, retrieved from http://www.theicss.org/wpcontent/themes/icss-corp/pdf/SIF14/Sorbonne-ICSS%20Report%20Executive%20Summary_WEB.pdf Vahl, S. (2018, 9 June). You Can Bet On It!, Sportshour, BBC World Service, retrieved from https://www.bbc.co.uk/programmes/w172w4pdr90bb4b [Annexure D(9)]

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http://www.theicss.org/wpcontent/themes/icss-corp/pdf/SIF14/Sorbonne-ICSS%20Report%20Executive%20Summary_WEB.pdf

http://www.theicss.org/wpcontent/themes/icss-corp/pdf/SIF14/Sorbonne-ICSS%20Report%20Executive%20Summary_WEB.pdf

https://www.bbc.co.uk/programmes/w172w4pdr90bb4b

Volume 6 — Issue 2 — Autumn 2014

PUBLICATION #9

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2. FORUM

Why this Australian supported Germany to win the

World Cup

Catherine Ordway*1

When I was asked for my tips ahead of the 2014 FIFA men’s football World Cup

finals, I put on record that I hoped that Germany would reign supreme (Ordway,

2014). I appreciate that it is not very patriotic for an Australian to not only

acknowledge that our team was the lowest ranked coming into the tournament, and

to also propose a novel rationale for supporting Germany ahead of other favoured

contenders. Going into the final, Germany had earned a FIFA ranking of number 2,

undoubtedly assisted by having one of the best national premier leagues in the world,

so they represent a solid pick.

However, football skills are only one factor to consider when determining a

tournament-winning formula. The predictor methodologies outlined by University of

Canberra Adjunct Professor Lyons in his The Conversation articles (Lyons, 2014a,

2014b), are compelling. This analysis, however, assumes that all matches are played

to the highest standard, and all athletes play to the best of their ability. Purist

performance analysis does not take into account that teams may deliberately ‘throw’

matches to assist their progression through the tournament (tanking2), or

deliberately fix elements of the match (e.g., red cards, penalties) or otherwise the

overall outcome of the match. My prediction, therefore, was not based on any hard

quantitative analysis of performance, but rather, on my understanding of the German

approach to corruption, and match-fixing particularly. The question is whether this

vigilant, zero tolerance approach to match-fixing translates into a culture of integrity

in German sport and the national football team.

* Ordway is Senior Lecturer in sports management in the Discipline of Sport & Exercise Science withinthe Faculty of Health and an Associate Member of the UC Research Institute of Sport and Exercise(UC-RISE) at the University of Canberra: [email protected] Such as most recently been alleged against the Australian men’s basketball team in their FIBA World Cup match against Angola; see on that: Golliver (2014).

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mailto:[email protected]

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Does Match-Fixing Present a Threat to Football’s Integrity?

Hill’s seminal work, “The Fix” (Hill, 2008), exposed the colossal reach of gambling

fraud globally through hundreds of in depth interviews with players, referees,

coaches/managers, fixers and gamblers in football and cricket. In 2009 the global

anti-corruption organisation, Transparency International (TI), considered that the

levels of corruption in sport were so serious that it published its first industry specific

report (Transparency International, 2009). In June 2010, the then-President of the

International Olympic Committee, Jacque Rogge, stated: “cheating driven by betting

is undoubtedly the biggest threat to sport after doping” (Rogge, 2010). After two

years of extensive research, the University Paris 1 Panthéon-Sorbonne and the

International Centre for Sport Security released the Sport Integrity Report Executive

Summary in 2014, and identified the following as key findings:

1. organised crime is estimated to launder over US$140 billion annually through

sport betting;

2. 80% of global sport betting is illegal; and

3. football and cricket proved to be most targeted sports by criminals (ICSS, 2014).

TI has also observed that if sports, such as football, are perceived to be led by a

culture of corruption, they will have a higher probability of threats to their integrity.3

It could therefore be argued that it is naïve to predict the outcomes of the World Cup

without factoring in the likelihood that matches may be ‘fixed’. The phrase ‘fixed’ here

means that the results, or events during a match, are orchestrated in advance in order

to achieve a gambling fraud. Put at its simplest, as compared with doping, which is

cheating to win, match-fixing is either cheating to lose, or artificially creating an in-

game situation, which can be bet on. While only one team can win, not every match in

the final is equal in terms of consequence or broadcasting interest (known as ‘dead-

rubbers’). For those numerous players not signed up with million dollar club deals

and sponsorship arrangements, a lucrative incentive, such as a year’s salary or more

to ‘throw’ a game (or create an adverse incident) might seem tempting, particularly

when the outcome of an individual match is inconsequential.

My argument is that creating a strict culture against match-fixing will mean that

teams not only deserve to win morally, but may actually produce better results by

making players more resilient to bribery; removing the temptation to deliberately

‘throw’ a game, or achieve negative in-game outcomes, such as red cards or other

penalties. Teams will then be playing to their highest potential every time they enter

the pitch.

3 For example, following the December 2010 announcement that Russia would host the 2018 Men’s World Cup and Qatar the 2022 Men’s World Cup, TI outlined a number of specific, concrete actions the international governing body of football, FIFA, could take to repair its reputation. See e.g. BBC News (2010) and Transparency International (2011).

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Why Germany?

One of the integrity risks identified by Hill (2008, 2013) is not paying players in a fair

and timely manner. If players are unable to meet their financial commitments,

particularly where those pressures are exacerbated by addictive and/or illicit

behaviours such as illegal drugs, prostitutes, problem gambling or alcoholism, then

those players are more susceptible to the advances of fixers to ‘solve’ their problems

through providing money for information, and/or specific on-field behaviour.

Football teams, even very wealthy clubs enjoying large memberships and/or generous

financial backers, are not immune from political and economic forces exerted by the

country they are based in. Clubs, or national teams, facing financial difficulties, may

be tempted to delay or reduce payments to players. This uncertainty may lead to a

sense of insecurity in the players, particularly those approaching the end of their

careers, and may heighten the risk of match-fixing and gambling fraud. There have

been examples of some representative teams entering into very public pay disputes

with their national federations, including several on the eve of this tournament.4 This

is not only disruptive for the teams’ preparation, but is also an invitation for fixers

looking for vulnerable teams to approach. The German national team has not been

reported as having a pay dispute with its national federation, and complaints relating

to non-payments or delays within the German Professional Football League (DFL)

are rare.

Supporting this industry perspective, the macro environment within Germany is

relatively stable. Despite economic challenges within the European Union, Germany

continues to enjoy a credit rating of 98.47 out of 100 (Trading Economics, 2014) and

comes 5th in the world in the Sovereign Risk index (BlackRock, 2014). In TI’s

Corruption Perception Index (CPI), Germany also ranks well at 12th in the world (CPI,

2013). In comparison with other countries appearing at the 2014 FIFA tournament,

only Switzerland fares better on all these indices (except in the FIFA ranking). Hill is

quick to point out that the CPI alone is a crude measure: for example, Singapore (at

5), whose national football league has effectively collapsed due to match-fixing, has a

stronger anti-corruption ranking than countries widely regarded as having low levels

of public corruption, such as Australia and Canada (at 9) (Hill, 2013, p. 233). It is

therefore also useful to look at how German authorities have managed various sport

integrity crises.

4 E.g., in 2014, the three countries Nigeria, Cameroon and Ghana “all had their tournaments undermined by disputes between players and officials over money”, cf. USA Today (2014).

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The German Approach to Corruption in Sport

The German Government, and German sports associations and leagues, have,

particularly in the last 10-15 years, increasingly taken a proactive and vigilant

approach to protecting sport from the threats to its integrity. Some authors suggest

that good governance and integrity in leadership can create a culture of integrity in

their organisations and broader society (e.g. Hooijberg, Lane & Diverse, 2010).

Opportunities for German authorities to demonstrate integrity leadership include the

following key examples:

1. Following the widespread condemnation of the East German doping program,

which came to light in 1990 (Ungerleider, 2001), and particularly since 2002,

the National Anti-Doping Agency (NADA) has worked very closely with

international anti-doping partners to develop a robust and transparent

anti-doping program. It is now considered as one of the best in the world.5

2. German football referees, Robert Hoyzer and Dominik Marks were sentenced to

29 and 18 months in jail respectively in 2005 for match-fixing (Marks received a

suspended sentence). The investigation by German authorities, which ultimately

became known as the “Bochum investigation” (see below), was conducted

following the German Football Federation (DFB) referring a number of

unusually large bets placed on second division, regional league and Cup

matches (Deutsche Welle, 2006).

3. In 2006, the Men’s European Clubs Handball Cup final was found to have been

fixed when Russian customs officials found US$50,000 in cash inside one of the

two German handball referees’ suitcases after the match at (Associated Press,

2009).6 The European Handball Federation (EHF) initially banned the referees,

Bernd Ullrich and Frank Lemme, for five years, which was subsequently

reduced to two years. Following Lemme’s retirement, in what was promoted as

providing the younger referee a second chance to redeem himself, but was

otherwise criticised as a soft response, the German Handball Federation gave

Ullrich the role of head of junior referee development in 2011 (Eggers, 2011).

4. The 2007 EHF Champions’ League Final was investigated when charges of

corruption and breach of trust were filed against Uwe Schwenker, a former

manager of German club, THW Kiel, and a former trainer, Zvonimir Serdarušić:

“Schwenker was accused of having transferred 92.000 euros of THW Kiel

money, to bribe the Polish referee in a match” (KEA European Affairs, 2012,

p.30). Both men were finally acquitted of all charges by the German courts due

to lack of evidence in 2013 (Spiegel, 2013).

5 Noting however that NADA does not exclusively conduct all the drug testing across the various professional leagues. See the NADA (2012, 2014) for more information. 6 The winners of the final, Russian club Chehovski Medvedi, were also excluded by the EHF from international competition for two years for failing to cooperate with investigating authorities.

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5. The German Organised Crime Task Force has had a team dedicated to

investigating match-fixing in football since 2008 (Hill, 2014). What started as

an investigation into a trans-national prostitution and narcotics operation run

out of Bochum, Germany, developed into the largest match-fixing case in

Europe (Boniface, Lacarriere et al., 2011). The evidence compiled through

phone tapping led to 50 arrests associated with the corruption of more than 320

football matches in ten European countries. These fixed matches included those

played at the European Cup and international levels (ibid., p. 12-3).7

6. In November 2011, German prosecutors launched an investigation into an

allegation that the International Handball Federation (IHF) President, and

Egyptian national, Hassan Moustafa, was alleged to have received a cheque for

€300,000 in April 2007 and a bank transfer of €302,000 in November 2007.

Prosecutors allege that these amounts were paid as bribes and ‘reward’ for

Moustafa giving the TV rights to German broadcaster Sportfive (Ahl, 2011;

Weinreich, 2010). Despite reports of the investigation ‘stepping up’ in

September 2013 (Ross, 2013), Moustafa, who has been IHF President since

2000, was granted a further four year term in October 2013 (Kicker Online,

2013). It appears that this matter has not yet been resolved by the German

courts.

7. Anti-match-fixing education efforts have been enhanced through a partnership

between TI’s chapter in Germany and the DFL. TI has been advising the DFL on

the project “Transparency and Integrity in Football”, which focuses on how to

prevent match-fixing. Germany was the first pilot country involved in the TI:

“Staying on Side: How to Stop Match-fixing” trainings, workshops and media

events (Transparency International, 2014).

These efforts are examples of how a culture of integrity in sport is being encouraged

and developed in Germany. It is hoped that this culture is influencing the decision-

making of the players in the professional sports leagues, including the DFL.

What influence could the DFL culture have on the FIFA World

Cup?

There were 736 players competing for thirty-two national teams in the 2014 FIFA

World Cup final. Sixteen of the 23-man German team at the World Cup were signed

with clubs in the DFL. Additionally, there were a total of 76 players, across twenty-

two national teams, playing at the World Cup with contracts to clubs in the DFL.

Only the English and Italian premier leagues had more representatives in Brazil.

Leaving aside the possibility of some players being ‘lent’ out to clubs outside

7 The head of the match-fixing operation, Croatian-German Ante Sapina, was eventually imprisoned for five years for his admission that he was involved in fixing more than twenty matches, cf. Uersfeld (2014) and FR Online (2014).

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Germany at various times, the fact that almost eighty current players had exposure to

the awareness campaigns and media associated with the anti-corruption prosecutions

gives rise to the expectation that these players may be more resilient to bribery

advances, and therefore more focused on playing to win.

Conclusion

The arguments I outline here might be (mis-)characterised as idealistic: that the most

‘morally defensible’ approach should be rewarded. Instead, my argument is that the

approach by the German Organised Crime Task Force in prosecuting match-fixers,

and TI and the DFL in educating players and raising awareness, together with a

generally low perception of corruption within Germany, and high standard of living

and player pay rates in Germany, would both dissuade fixers and make players more

resilient and less likely to accept advances from fixers. The establishment of the

Organised Crime Task Force in 2008 was a decisively proactive stance not

undertaken elsewhere prior to this. Germany is arguably the leading country actively

working to reduce the risk of global gambling fraud. Perhaps it is not too big a stretch

to argue that Germany’s success in winning the 2014 World Cup supports my view

that the German national team was the least at risk of being corrupted, and therefore

the most motivated and worthy winner on merit alone.

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http://cpi.transparency.org/cpi2013/results/

http://www.transparency.org/whatwedo/activity/staying_on_side_education_and_prevention_of_match_fixing

http://www.transparency.org/whatwedo/activity/staying_on_side_education_and_prevention_of_match_fixing

http://www.espnfc.com/story/1785621

http://www.usatoday.com/story/sports/soccer/2014/07/06/nigeria-heading-for-fifa-ban-over-interference/12269793/

http://www.usatoday.com/story/sports/soccer/2014/07/06/nigeria-heading-for-fifa-ban-over-interference/12269793/

http://www.jensweinreich.de/2010/01/27/Hassan-Moustafa-Handball-Sportfive-Lobbyismus-Und-Korruption/

http://www.jensweinreich.de/2010/01/27/Hassan-Moustafa-Handball-Sportfive-Lobbyismus-Und-Korruption/

16 WORLD SPORTS ADVOCATE

INCLUSION

The demand that transgender women be accorded their human right to play sport at all levels has challenged thinking in the sports industry. The Australian Football League’s decision to exclude transgender woman Hannah Mouncey from competing in its premier women’s league but allow her to continue to play in the lower, state, leagues appears inconsistent and raises a number of issues. Sports administrators and members of the public are asking: What do we mean by fairness and a ‘level playing field’?; how do we define ‘women’ in women’s sport?; and does binary sex segregation in sport still hold any relevance or benefit in the future? Catherine Ordway, Senior Consultant at Snedden Hall & Gallop and Senior Fellow at the University of Melbourne, addresses those questions in this article.

Does sex segregated sport still hold value?

Catherine Ordway Senior Consultant [email protected] Hall & Gallop, AustraliaSenior Fellow, University of Melbourne, Law School

In Australia, the issue which is causing significant debate in sport circles is how to embrace diversity and inclusion in sport while protecting existing competitors from perceived ‘unfair advantage1.’ The demand that transgender women be accorded their human right to play sport has challenged the thinking of sports administrators, policymakers and cis women in the industry. (Cis women, also sometimes referred to as ‘non-transgender women’ are women who identify with being female in alignment with their biological sex at birth2.) Transgender men (people born biologically female, and now living and identifying as men), do not appear to cause the same level of angst for sports authorities, as their physical prowess is not perceived to be a threat to the male competitors or to the ‘fairness’ of the competition. To analyse this contradictory approach, this article asks: What do we mean by fairness and a ‘level playing field’? which leads to answering: how do we define ‘women’ in women’s sport?, and considering whether binary sex segregation in sport still holds any relevance or benefit in the future?

BackgroundWomen have overcome centuries of sexism to now be permitted to participate in sport within a strict binary sex segregated system. People identifying with, or being ‘outed’ by sports authorities as having anything other than the ‘standard’ genetic and hormonal profiles3, are being marginalised and excluded. A solution to this debate is proposed here using an Ethics of Care (‘EoC’) approach4. The starting point for this approach is the conviction that all human beings are born free and equal in dignity and rights, as stated in Article 1 of the Universal Declaration of Human Rights5. Ethical

behaviour involves treating people in this spirit, regardless of gender. EoC, also known as Care Ethics, has developed historically from the feminist tradition of recognising, and requiring, that we can and should respond to marginalised members of the community with care and empathy. Doing the right thing means taking action to make the world a better place for those who have been made vulnerable or otherwise excluded and/or marginalised, even beyond our legal requirements. In this context, it requires sports administrators to provide more ‘care’ and resources to people on an increasing scale to match the needs of vulnerable and marginalised people within our community to ensure that everyone has both equitable access to the benefits of sport, and an equal opportunity to earn a living from those activities if they have the ability to do so.

What do we mean by fairness and a ‘level playing field’?The UNESCO International Charter of Physical Education and Sport states that: ‘[A]ccess to physical education and sport should […] be assured and guaranteed for all human beings6.’ The International Olympic Committee’s (‘IOC’) Olympic Charter also sets out, as one of the fundamental principles of the Olympic Movement, that: ‘The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play7.’

The IOC’s 2003 policy (known as the Stockholm Consensus8) recognising athletes after sex reassignment surgery has been heavily criticised for being

based on flawed and inaccurate scientific hypotheses9. Athletes and commentators have claimed that the policy amounts to “gender discrimination10” in preventing transgender women, and women with a range of hormonal and genetic profiles, from playing sport11. The Stockholm Consensus was amended in 2015 to take into account societal and legal recognition of changes to gender identity. The IOC’s amended Transgender Guidelines maintains the flawed ‘advantage’ biology assumptions based on testosterone levels, without taking into account significant genetic and other variations in the athlete population12. For example, cyclist Kristen Worley is not transgender, but has undergone reassignment from a XY male to XY female. She succeeded after 16 years to win her right to play when the Human Rights Tribunal of Ontario found that the International Cycling Union rules (based on the IOC policy) were discriminatory13. Worley equated the gender testing she underwent during her athletic career to sexual assault consistent with complaints arising out of the #MeToo movement14.

A transgender person is defined by UNAIDS as a person who: “has a gender identity that is different from his or her sex at birth. Transgender people may be male to female (female appearance) or female to male (male appearance). It is preferable to describe them as ‘he’ or ‘she’ according to their gender identity, i.e. the gender that they are presenting, not their sex at birth15.”

To achieve the aims of the UNESCO and IOC Charters, the starting position from an EoC perspective must be that transgender women be included, unless it can be established that there is an

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evidence-based unfairness warranting that they be excluded. To allow for women’s sport to be as inclusive as possible, it is clear that comprehensive and transparent transgender policies are needed. These policies must be based on science. In line with the human right to sports participation, the Australian Federal Government’s sport policy and funding arm, the Australian Sports Commission (‘ASC’), is currently undergoing a consultation to ensure that their guidelines are developed to allow transgender women to play sport, including at the elite level. The ASC guidelines should be released in August 2018.

Hannah MounceyHannah Mouncey is a transgender woman who wants to play in the Australian Football League (‘AFL’) Women’s Competition (the ‘AFLW’). The AFL has been basking in the glow of the success of its recently introduced premier women’s competition16, promotes its support for social issues including gay pride17, and claims a: “strong commitment to equality and inclusion at all levels of the game18.” On this basis, it would be expected that the AFL take an inclusion-based EoC approach to a person who finds herself in a highly marginalised class of people. However, the AFL appears to have resorted to conservative risk minimisation to exclude Mouncey. After the AFL finally announced, on the day before the AFLW Draft in October 201719, that Mouncey would be ineligible to be selected for teams in the 2018 AFLW, commentators criticised the decision20. The AFL has relied on an exception to the anti-discrimination legislation which allows sports organisations to exclude people on the grounds of gender where their ‘strength, stamina or physique is relevant21.’

There is no doubt that strength, stamina and physique are required to play AFL football22. The AFL’s decision appears to be based on an assumption that Mouncey has an unfair advantage on some or all of these criteria. Therefore, the AFL’s announcement that Mouncey was eligible to continue playing in the lower state leagues23, but not in the AFLW, is further support for the conclusion that the AFL decision is inconsistent and prima facie in breach of anti-discrimination legislation. Given that the AFL has not published detailed reasons for its decisions, it is assumed that the AFL must have determined that Mouncey has: i) an unfair physical advantage over theother women in the AFLW competition; ii)may cause a more than insignificant riskof injury to other players; and/or iii) thatMouncey’s ‘look’ is not the marketingimage sought to be promoted by the AFL.Allowing Mouncey to play in the state

football leagues, where the players can be expected to be physically weaker and less experienced, negates the unfair advantage and risk of physical harm arguments.

Mouncey is being given a right to play, but not at the elite level. The UN Convention states that discrimination ‘of any kind’ is unacceptable24, and so it follows that an EoC approach requires that Mouncey not be denied access to the elite level in any sport, where she has the sporting ability. Mouncey has a right to earn a living and where she is denied access to the professional league, but permitted to play in the amateur league, this also amounts to economic discrimination. It seems unlikely that transgender women would make the prodigious decision to undergo the medical, social and legal transformation for reasons relating to potential economic benefits. Despite the considerable gains recently experienced by female athletes in professional team sport, the monetary compensation offered to AFLW players, as compared with their AFL ‘brothers,’ remains pitiful25, and it cannot be imagined that it would lead to the opening of the proverbial ‘floodgates’!

How do we define ‘women’ in women’s sport?The AFL does not have a transgender policy. The AFL is, in effect, the international federation for the sport, and not being on the Olympic program does not have to comply with the IOC policy. However, the AFL is required to comply with Australian law. In the AFL Female Football Club Guide26, the AFL refers readers to the: ‘Transgender and Intersex Sport Inclusion Guidelines plus Guidelines: Transgender, People and Sport27.’ Despite these public statements, in its 2017 decision, the AFL stated that its subcommittee had: “carefully considered all the information provided by Hannah [Mouncey], as well as the available data on transgender strength, stamina, physique along with the specific nature of the AFL competition” to determine that Mouncey is not eligible to play in the women’s competition. The AFL did not clarify what information was provided by Mouncey, and did not specify what the ‘available data’ was or how it could be verified.

It can be assumed that the ‘physique’ criteria relates to Mouncey’s height (190 cm) and that she previously weighed100kg. The AFL version of football is acollision sport played on a wide opengrassed oval. This means that the mostsuccessful teams will have a broaddiversity of physiques, and, presumably,skill levels. To illustrate this, the statistics

provided by the 2017 AFL men’s premiership winning club are instructive28. The senior Richmond Football Club players have an almost 30cm difference between the shortest to the tallest in the 40-man squad (from 175-204cm). By weight the difference between lightest (71kg), to heaviest (106kg) is 35kg. The AFLW does not provide statistics on its players, but a similar diversity exists within the Australian women’s rugby union team: with spans of 25cm between tallest and shortest and 44kg between heaviest and lightest29. Even taking into account that these are results for a national team of only 28 players, which includes both Super W and 7’s representatives, the heaviest Wallaroo weighs more than the heaviest Richmond men’s player. To imagine that cis women in the Australian national teams, would be excluded from playing in the AFLW on the grounds of an unfair advantage is incongruent.

There is no evidence in the public domain that the AFL has measured Mouncey’s strength or stamina, and the AFL has not indicated that the other AFLW players have been measured against any of the criteria relied on to exclude Mouncey. Mouncey’s coach in the local Canberra competition notes that while Mouncey’s hand-eye skills are good, she does not have the endurance, speed, or strength of some of the other players, and, as she is still learning the game, is improving her kicking accuracy30. It has also been accepted by the International Handball Federation (the sport Mouncey played prior to her transition) that her hormone levels and consequent loss of strength means that she has been legally and medically cleared to play the Olympic sport of handball31. The Olympic sports have been grappling with how to achieve a ‘level playing field’ in a world where assumptions about a ‘standard’ of XX and XY chromosomes and testosterone levels for each sex have been shown to be false. Despite the best efforts of some to lower the discussion to one on genitalia32, research has demonstrated that people can be born with either only one, or three or more sex chromosomes33 and there is a ‘complete overlap between the sexes’ in testosterone levels, particularly in elite athletes34. The evidence presented here suggests that the criteria relied on by the AFL to exclude Mouncey is inadequate in determining what is fair competition in a sex segregated sport environment.

Future considerationsDoes binary sex segregation in sport still hold any relevance?Sport has traditionally been developed

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by and for men35. As society has evolved, an additional category of ‘women’s sport’ has been developed to give cis women an opportunity to compete. This could be seen as a kind of affirmative action program to overcome the centuries of sexism and presumptions about capability that prevented women from having equal access to sport. Men and women have also played competitive sport together. The traditional racquet sports36, Olympic sailing37 and curling, for example, have competitions for mixed doubles at the highest levels. New sports like triathlon and touch football also have mixed team events, requiring designated minimum numbers of women on each team. However, these disciplines remain hedged in binary definitions of gender, which would not necessarily assist the gender-neutral or transgender athletes38. These advances have also not protected women from being physically, sexually and emotionally abused when competing in or working within the sports industry39.

Given that the science demonstrates significant overlap between the height, weight and hormone levels between

male and female elite athletes, then an EoC perspective could allow for the introduction of new, gender neutral and inclusive team sports to allow for the range of physicalities and skills sets represented.

One sport which has already made in-roads in this direction is roller derby. Roller derby started as a female-only sport, but has recently introduced a Gender Statement as follows: ‘An individual who identifies as a trans woman, intersex woman, and/or gender expansive may skate with a WFTDA [the Women’s Flat Track Derby Association] charter team if women’s flat track roller derby is the version and composition of roller derby with which they most closely identify40.’ Despite this, the sport continues to grapple with how to include men. Similar generalised reservations are expressed in relation to assumed physicality advantages, despite the range of physical descriptions of the men seeking to be involved in roller derby41.

Sociologist Jennifer Hargreaves, is credited for calling for new gender and

sex inclusive sports from as far back as 199042. If the AFL had considered an EoC perspective and gone beyond a merely responsive Respect and Responsibility policy43 to adopt a truly gender mainstreaming approach44 in introducing the AFL’s latest product this year, the AFLX would have been designated as a mixed, gender-neutral, sport45.

The AFL decision in relation to Hannah Mouncey demonstrates that a great deal is needed from policymakers to ensure that those in our midst experiencing the greatest challenges are given more care by those with the power to provide it. Legal definitions of gender discrimination and inclusion go some way, but additional work needs to be done through education and awareness-raising to reflect the scientific evidence that cis women are not being unfairly disadvantaged by including transgender women in competitive sport, particularly in team environments. Perhaps the answer lies in developing new, gender-neutral, sports that celebrate the skills and attributes present in the diversity of our communities.

INCLUSION

1. For example, (print) T Holmes, Sport in transition: AFL’s Hannah Mouncey ruling reignites debate on trans women in sport, ABC News Online, updated 23 October 2017. Similar arguments were raised in relation to transgender weightlifter Laurel Hubbard, see: http://www.abc.net.au/news/2018-04-08/laurel-hubbard-split-in-ranks-over-transgender-weightlifter/9626242. The ‘advantage’ question is discussed in Sullivan CF (2011). ‘Gender verification and gender policies in elite sport: Eligibility and “fair play”.’ Journal of Sport and Social Issues, 35(4).

2. T Chevalier, ‘What does cis mean?,’ last updated 9 July 2016, https://www.whatdoescismean.com/whatdoescismean/

3. For example, Wonkam, A., Fieggen, K., & Ramesar, R. (2010). Beyond the Caster Semenya controversy: the case of the use of genetics for gender testing in sport. Journal of Genetic Counseling, 19(6), and the most recent amendment to the IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development), 26 April 2018.

4. Originally developed by Carol Gilligan. See C Gilligan (1982). In a different voice. Cambridge: Harvard University Press, https://www.researchgate.net/publication/275714106_In_A_Different_Voice_Psychological_Theory_and_Women’s_Development

5. http://www.un.org/en/universal-declaration-human-rights/index.html

6. International Charter of Physical Education and Sport preamble, http://portal.unesco.org/en/ev.php-URL_ID=13150&URL_DO=DO_TOPIC&URL_SECTION=201.html

7. IOC, ‘Fundamental Principles of Olympism’, Olympic Charter, 2 August 2015, 13-14, http://www.olympic.org/Documents/olympic_charter_en.pdf

8. https://stillmed.olympic.org/Documents/

Reports/EN/en_report_905.pdf 9. For example Sullivan, CF (2011). Gender

verification and gender policies in elite sport: Eligibility and ‘fair play.’ Journal of Sport and Social Issues, 35(4), 400-419

10. ‘Gender discrimination’ is defined by the Convention on the Elimination of all forms of Discrimination Against Women, UN (1979), Article 1, http://www.un.org/ womenwatch/daw/cedaw/cedaw.htm

‘Sex’ is defined in the UN Women Training Centre, Gender Equality Glossary, https://trainingcentre.unwomen.org/mod/glossary/view

11. http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf

12 https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf

13. A Brown, ‘Sports Longest Injustice Scheduled for Demolition,’ 26 May 2017, http://www.sportsintegrityinitiative.com/sports-longest-injustice-scheduled-demolition/

14. ‘Kristen Worley: taking on the IOC for transgender athletes,’ 26 January 2018, Nine to Noon, RNZ, https://www.radionz.co.nz/national/programmes/ninetonoon/audio/2018629548/kristen-worley-taking-on-the-ioc-for-transgender-athletes

15. UNAIDS Terminology Guidelines, http://files.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2011/JC2118_terminology-guidelines_en.pdf

16. ‘AFL Women’s Teams Announced,’ AFL, 15 June 2016, http://www.afl.com.au/news/2016-06-15/afl-womens-team-announced

17. ‘AFLW: Bulldogs and Blues to hold Pride match,’ 7 February 2018, http://www.afl.

com.au/news/2018-02-07/aflw-bulldogs-and-blues-to-hold-pride-match

18. M McGowan, ‘AFL blocks transgender footballer from AFLW,’ 17 October 2017, http://www.afl.com.au/news/2017-10-17/afls-transgender-call-on-aflw-hopeful

19. http://www.afl.com.au/news/2017-10-17/afls-transgender-call-on-aflw-hopeful

20. C Ordway and A Twigg, ‘By excluding Hannah Mouncey, the AFL’s inclusion policyhas failed a key test,’ 19 October 2017.

21. Equal Opportunity Act (Vic) s.72(1), http://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s72.html

22. The distinction between combat and contact sports was set out in: Magnusson, R. S., & Opie, H. (1994). HIV and Hepatitis in Sport: a legal framework for resolving hard cases. Monash UL Rev., 20, 214. http://classic.austlii.edu.au/au/journals/MonashULawRw/1994/10.pdf

23. D Navaratnam, ‘Transgender footballer clear to play state leagues,’ AFL, 13 February 2018, http://www.afl.com.au/news/2018-02-13/transgender-footballer-cleared-to-play-state-leagues

24. UN (1979), Convention on the Elimination of all forms of Discrimination Against Women, Article 1, http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

25. ‘AFLPA and AFL agree a paydeal for AFLW players,’ 2 November 2017, http://www.aflplayers.com.au/article/aflpa-afl-agree-to-revised-aflw-pay-deal/ and ‘Players, AFL sign historic CBA deal,’ 20 June 2017, http://www.aflplayers.com.au/article/players-afl-sign-historic-cba-deal/

26. http://www.aflcommunityclub.com.au/fileadmin/user_upload/Play_AFL/Female_Footy/AM_3987_Womens_Football_Club_Guide_D5_lores.pdf

27. Presumably a reference to the Victorian

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A Cecile Park Media Publication | May 2018 19

FIFA amends the RSTP RegsNEWS ANALYSIS

FIFA announced amendments to its Regulations on the Status and Transfer of Players (‘RSTP’) on 26 April 2018 in Circular 1625, which introduces an amendment to Article 14 to include a new paragraph concerning abusive situations where the stance of a party is intended to force the counterparty to terminate or change the terms of the contract; a new Article 14bis to address the circumstance of terminating a contract due to overdue salaries; a change to Article 17 regarding the calculation of compensation for breach of contract without just cause; and a new Article 24bis relating to the execution of monetary decisions, granting FIFA’s decision-making bodies the power to impose sanctions on players and clubs if a monetary decision is not complied with.

“The major regulatory change is Article 24bis because it introduces a new concept,” said Paolo Lombardi, Managing Director at Lombardi Associates. “Some of the other amendments seem at first sight very significant, although they actually enshrine principles that have been established through consistent jurisprudence of FIFA decision-making bodies. Having said that, the act of codifying principles arising from jurisprudence should not be underestimated.”

Under Article 24bis, when instructing a party (a club or a player) to pay another party (a club or a player) a sum of money, the Players’ Status Committee, the Dispute Resolution Chamber (‘DRC’), the Single Judge or the DRC judge will also decide on the consequences for failure to pay the relevant amounts in due time. The specific consequences for non-compliance with a monetary decision will be included in the findings of the decision and will be the following, when applicable to debtor clubs: a ban from registering any new players until due amounts are paid over a maximum of three consecutive registration periods; and when applied to debtor players: a restriction from playing in official matches until due amounts are paid over a maximum of six months.

“Article 24bis is clear in indicating that the relevant FIFA decision-making body ‘shall’ include with a monetary decision the specified sanction that will apply in the event of non-compliance with such decision,” adds Lombardi. “As it stands, if a monetary decision is not complied with following a final and binding decision, the creditor needs to request the FIFA Disciplinary Committee (‘FDC’) to open disciplinary proceedings and potentially impose sanctions in order to enforce payment. Instead, such sanctions will now be included in the monetary decision, which in principle means less delays for creditors, and less cases for the FDC to deal with. Of course, parties can still lodge an appeal with CAS against the FIFA decision, and the challenge here will be for CAS to provide equally swift appeal proceedings so as not to counteract the positive impact of the new amendments.”

FIFA also issued Circular 1628 on 9 May 2018, announcing a new approach to debtors within the procedure of Article 64 of the FIFA Disciplinary Code. FIFA acknowledged the introduction of Article 24bis in this Circular but stated that due to the limited scope of the new Article and that it will only apply to claims lodged after 1 June 2018, the FDC will still have a “considerable” number of cases to deal with so the implementation of sanctions under a new procedure in the Disciplinary Code is also necessary. The new procedure will see point deductions and transfer bans automatically imposed on debtors by member associations from the expiry of the final deadline for payment.

Equal Opportunity & Human Rights Commission Guideline: Tran and Gender Diverse Inclusion in Sport - Complying with the Equal Opportunity Act 2010, https://www.glhv.org.au/sites/default/files/2017-06/Guideline_Trans_and_gender_diverse_inclusion_in_sport_0.pdf and the ACT Human Rights Commission, Everyone Can Play: Guidelines For Local Clubs On Best Practice For Inclusion Of Transgender And Intersex Participants, http://hrc.act.gov.au/wp-content/uploads/2017/04/WEB_ACTHRC_Everyone_Can_Play.pdf

28. http://www.richmondfc.com.au/players/senior-players 29. https://www.rugby.com.au/teams/wallaroos 30. ‘Ainslie coach Chris Rourke surprised at AFL barring

transgender player Hannah Mouncey from AFLW draft,’ The Canberra Times, 18 October 2017, http://www.canberratimes.com.au/afl/afl-news/ainslie-coach-chris-rourke-surprised-at-afl-barring-transgender-player-hannah-mouncey-from-aflw-draft-20171017-gz2zoa.html

31. The IHF criteria is based on the IOC guidelines which have been criticised.

32. Eg: N Mitchell, ’Gender is going to be wiped out in elite sport’ lawyer claims, Mornings, 3AW radio Melbourne, 14 February 2018.

33. http://www.who.int/genomics/gender/en/index1.html 34. Healy, Marie-Louise & Gibney, James &

Pentecost, Claire & J Wheeler, M & Sonksen, Peter. (2014). Endocrine Profiles in 693 Elite Athletes in the Post-Competition Setting. Clinical endocrinology. 81. 10.1111/cen.12445

35. For example, Hargreaves, J. (2002). Sporting females: Critical issues in the history and sociology of women’s sport. Routledge.

36. For example, Lake, R. J. (2012). Gender and Etiquette in British Lawn Tennis 1870-1939: A Case Study of ‘Mixed Doubles’. The International Journal of the History of Sport, 29(5), 691-710.

37. https://www.olympic.org/sailing 38. Sports that do not rely on the physicality of the

athlete go outside the issues addressed here. For more information, see ‘A Leader in Equality,’ FEI, 30 March 2018 https://www.fei.org/stories/equestrian-fei-gender-equality and De Haan, D., Sotiriadou, P., & Henry, I. (2016). The lived experience of sex-integrated sport and the construction of athlete identity within the Olympic and Paralympic equestrian disciplines. Sport in Society, 19(8-9).

39. ‘Iran detains 35 women for going to football match,’ BBC News, 1 March 2018, http://www.bbc.com/news/world-middle-east-43243414 and ‘Iran jails British-Iranian woman who was detained for watching volleyball,’ ABC News, 3 November 2014, http://www.abc.net.au/news/2014-11-02/iran-jails-woman-for-watching-volleyball-supporters-say/5861238

40. https://wftda.com/wftda-gender-statement/. A Pavlidis (2013) ‘Writing Resistance in Roller Derby: Making the Case for Auto/Ethnographic Writing in Feminist Leisure Research,’ Journal of Leisure Research, Vol. 45, No. 5, http://www.nrpa.org/globalassets/journals/jlr/2013/volume-45/jlr-volume-45-number-5-pp-661-676.pdf

41. See the discussion in Pavlidis, A., & Connor, J. (2016). Men in a ‘women only’sport? Contesting gender relations and sex integration in roller derby. Sport in Society, 19(8-9).

42. Hargreaves, JA (1990). Gender on the sports agenda. International Review for the Sociology of Sport, 25(4), and see also Pavlidis, A., & Connor, J. (2016). Men in a ‘women only’ sport? Contesting gender relations and sex integration in roller derby. Sport in Society, 19(8-9).

43. Respect and Responsibility Policy, AFL Community, http://www.aflcommunityclub.com.au/index.php?id=750

44. ‘Gender mainstreaming is the systematic integration of gender equality into all systems and structures; policies, programs, processes and projects; into cultures and their organisations; into ways of seeing and doing,’ Rees T (2002). A New Strategy: Gender Mainstreaming.

45. http://www.afl.com.au/aflx

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Conclusion, Recommendations and Afterword

“The toughest thing might be to make the decision, but it also takes courage to follow that decision through with actions. Unless you are prepared to translate your brave words into action, all you are doing is trying to fool yourself and everyone around you.” Justin Langer (2008) Seeing the Sunrise, Allen & Unwin, Crows Nest, p79

Many fine words have been spoken about sports integrity, and what it means to have ‘clean

sport’ and organisations free from corruption, but as the quote above from the current

Australian men’s cricket coach suggests, unless those words are turned into action, then they

will remain empty platitudes. This thesis has pulled together a range of best practice

solutions, ideas and research from a number of sports, industries and contexts to make

suggestions on the action that can be taken to reduce the risks to sports integrity. Viewing

both the threats and possible solutions holistically, using a professional practice research

approach, provides researchers, industry and the broader society with the tools to support

sports integrity.

As was originally detailed in Publication #1 Ordway & Opie (2017), these tools are intended

to work together, and to be selected, refined and adapted depending on the context and the

stakeholder group intended to be influenced. Using an Ethics of Care [EoC] approach

(Gilligan 1982), can be considered as an opportunity for those leading sports organisations to

restore trust in a public that seeks to believe again in the ideals promised by competitive

sport. The Chapter 1 Overview outlined that an EoC approach focuses on providing more

care for those most vulnerable in our sporting communities. It has taken some time for the

ideas presented through this thesis to evolve, and for those ideas to be tested in the real-world

environment, as has been described in the case-studies detailed here. There is still much to

do, and some of the recommended ways forward are outlined below.

Recommended future research:

(a) Defining “sports integrity”

Since Publication #1, Ordway & Opie (2017), was published, discussions have progressed on

what it means to protect the integrity of sport, and what sports integrity might be threatened

by. It is intended that Ordway & Opie (2017) should be updated to become a comprehensive

text for students and practitioners of sports integrity. For this update, consideration should be

given to reviewing the definitions section (Ordway & Opie 2017 pp40-44). As discussed in

the Overview and Introduction chapter of this thesis, sports integrity is extremely difficult to

define. There seems to be general agreement that doping (as defined by WADA 2015) and

match-fixing (including results manipulation for both gambling and non-gambling related

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purposes) fall within the “core of certainty”, as Gardiner (2010) describes it in his Model of

Sport Related Corruption (p10). However, Gardiner’s “penumbra of uncertainty”, and the

types of ‘wrong-doing’ encapsulated by the term ‘sport integrity’ is very loose, undefined and

threatens to become a ‘grab bag’ of every ill in society applied to the sport context.

The first category of prohibited behaviour outside of the “core” may relate to human and

legal rights abuses, and include the eligibility and treatment of athletes (and animals), the

broadly defined “athlete support personnel” (WADA 2015), including match-day officials,

spectators and the sporting public, to include ‘wrong-doing’ such as:

a) Physical, mental and sexual abuse, which may include: inappropriate intimaterelationships and grooming, violence, over/ poor training, neglect and/or lack ofaccess to healthcare (including post-sport transition), food/ water deprivation,unsafe/inadequate housing, venues, or transport, poor sanitation and/or access tosleep, (ab)use of alcohol, illicit drugs and/or supplements (as distinct from‘doping’ as defined by WADA 2015), and bullying, vilification and harassment(which may include discrimination);

b) Gender, age, weight, classification and accreditation cheating;c) Discrimination and exclusion, whether through: age, sex, sexuality or sexual

orientation, gender/ trans diversity, body image, ability, religion, race and/orcolour, ethnicity, national/ regional origin, language, cultural practices, politicalbeliefs and/or socio-economic status;

d) Financial deprivation, including under/non-payment and inequity in conditions,whether through participation, employment, salary cap or transfer situations; and

e) Impeding freedoms of work, movement, education and association, balancedwith protections against human, sexual and drug trafficking.

As set out in Publication #8 (Passas & Ordway 2016), it is suggested that the second category

of wrong-doing outside of the “core”, falls under the heading of “corruption” as defined by

the UNCAC (2005) mandatory offences includes:

• Active bribery of public officials (Art.15[a]) (in the sport context, this would beexpanded to include “by and of”)

• Passive bribery of public officials (Art.15[b]) (in the sport context, this would beexpanded to include “by and of”)

• Active bribery of foreign officials and officials of international organizations(Art.16[a]) (in the sport context, this would be expanded to include “by and of”)

• Money laundering (Art.23) (and presumably including terrorist/ criminal financingand tax evasion)

• Embezzlement, misappropriation and other diversion of public property (Art.17) (inthe sport context, this should be expanded to include “any” property or fundsbelonging to or intended for the benefit of the sport organisation’s member)

• Obstruction of justice

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The UNCAC (2005) non-mandatory offences are: • Passive bribery of foreign officials and officials of international organizations

(Art.16[b]) (in the sport context, this would be expanded to include “by and of”, andinclude rules around gifts and hospitality)

• Illicit enrichment (Art.20)• Abuse of function (Art.19) (in the sport context, may be phrased as ‘power’)• Trading in influence (Art.18) (including collusion)• Private to private bribery – active and passive (Art.21)• Embezzlement in private sector (Art.22)

The third category of prohibited behaviour outside of the “core” then might include:

• Poor governance, not falling into the definitions of “corruption” above: particularly alack of transparency and accountability, but which not otherwise satisfy the criminalstandards for fraud (or “illicit enrichment” or “embezzlement” to use the UNCAC(2005) language). This may include the inadequate regulation of prohibitedsubstances and methods (WADA 2015) and gambling, as well as organisationalfinancial and corporate reporting, which may include: the nomination, recruitmentand/or selection processes for officials, voting, term limits, conflicts of interest, theuse of shell companies, contractual arrangements including accreditation, athlete/teamtransfers, and the granting of hosting, media (broadcasting and advertising), andsponsorships rights, failures to prosecute, ticketing, infrastructure, developmentGovernment/sport grants and scholarships.

• Independence: In Japan, what is described as the “pressure of autonomy of sport”(Japan Sports Council n.d.), might include the ‘independence’ of sport fromGovernment, for example (IOC 2013);1

• Breaches of the sport rules and “gamesmanship”: including unwritten, moral rulescouched in terms of fairness and respect, such as tanking (Sport Australia 2019); and

• Privacy and intellectual property breaches: including the use of insider information,cyber-safety, identity, property, document/ data breaches and court siding, includingcounterfeit goods and ticketing.

The fourth ‘catch-all’ category could include other forms of ‘ill’ found in society, which

directly or indirectly impact on the sports industry, such as identified by Frisby 2015 (p3) the:

• denial of the right for athletes and workers to unionise to protect their rights• environmental destruction in developing sports facilities, sporting events, and

outdoor recreation;• escalating salaries of sport celebrities;• impoverished conditions of laborers (many of whom are children) working in

construction and/or producing sport products;• sporting injuries, including concussion, including the pressures on athletes to

take play when injured;• sponsorship of harmful products, including tobacco, alcohol, fast food and

gambling;• defamation and/or demonisation of athletes for ‘doping’, or other sport rule

breaches, which may include on-field ‘sledging’ and/or off-field ‘trolling’; and

1 Eg: “Members of the IOC will not accept from governments, organisations, or other parties, any mandate or instructions liable to interfere with the freedom of their action and vote.” (IOC 2013 Art 16.1.1.5), and that IOC members must be: “free from any political or commercial influence” (IOC 2013 Art 16.1.1.3)

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• glorification of athlete and fan violence, abuse of women and other anti-socialbehaviour.

The forth-coming text on sports corruption case-studies, to be edited by Ordway and Lucas,

will also contribute to this definitional development.

(b) WADA’s Governance Reform

Chapter 2 considered Good Governance as an anti-corruption tool and specifically looked at

independence and gender equality using the case studies of the World Anti-Doping Agency

(WADA) in Publication #2, and the Football Federation of Australia (FFA) in Publication #3,

respectively. It is hoped that this research will have an influence on the composition of both

sports boards, and more broadly, for boards in other industries. It is particularly hoped that

the equity measures outlined in this research will assist in developing policy or legislative

changes at the national and international level relating to gender and for people with a range

of diverse backgrounds.

Publication #2, Nehme & Ordway (2016), analysed WADA’s governance structure and made

a number of suggestions relating to the independence of the members of WADA’s leadership

groups, and on introducing gender equity measures throughout WADA’s committees and

decision-making bodies. As mentioned in the Chapter 2 Overview, Dr Ulrich Haas was one

of the editors of Publication #2, and is the Chair of WADA’s Working Group on Governance

Matters, so it can be assumed that the recommendations in Publication #2 influenced the

thinking of the Working Group. A future research project is planned to analyse analysing the

Working Group Report, approved by WADA's Foundation Board on 15 November 2018, to

determine how the recommendations relating to the independence of members, and the

introduction of gender equity measures, have been implemented.

(c) Intersectionality and Integrity Research

It became apparent, through profiling the women nominated for the FFA Women’s Football

Council in Publication #3, that the ‘merit’ concept warrants further dissecting to understand

the importance of their relationship to the men in the game; as wives, sisters, lovers and co-

workers. To support this analysis in Publication #3, it would have been useful to have been

able to conduct a thorough and complete diversity survey of the women in leadership

positions in Australian football. This would have enabled a sense of how these women fitted

into the football eco-system, and an understanding of how they contributed to broader

intersectionality and perspectives aside from gender, including: cultural, values, age, religion,

sexual preference, education, work experience, sports experience and parenthood. In future

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research delving into diversity more broadly, it is hoped that it may be possible to determine

whether factors, other than gender, could contribute to strengthening sports integrity.

(d) Partnerships and Integrity

In Chapter 3 Partnerships, information-sharing and inter-agency collaboration were studied

through using anti-doping (Publication #4) and anti-match-fixing (Publication #5) case-

studies. This approach has also been embraced through the recently created “International

Partnership Against Corruption in Sport (IPACS)”. The International Olympic Committee

[IOC] media release stated that: “Partnerships with governments and intergovernmental

organisations are key for sports organisations’ integrity. The IPACS enables the development

of pragmatic working methods between governments, intergovernmental organisations, such

as the Organisation for Economic Cooperation and Development (OECD), the United

Nations Office on Drugs and Crime (UNODC) and the Council of Europe, and international

sports organisations” (IOC 2018). This new initiative will be analysed to determine how the

IPACS intends to measure the success of its collaborative efforts with its partners, and with

groups, such as the Global Organization of Parliamentarians Against Corruption [GOPAC],

the International Centre for Sport Security [ICSS] and the Sport Integrity Global Alliance

[SIGA] (GOPAC 2019; ICSS 2019; SIGA 2019).

(e) Research supporting the application of international conventions to sport

Chapter 4 Legislation and Regulatory Measures, considered the power of national and

international legislation in supporting sports integrity. Using the Australian Sports Anti-

Doping Act, 2006, and subsequent amendments, as a case-study, Publication #6 expanded on

some of the ideas developed in Publication #4, to demonstrate the importance of information-

sharing being enshrined in legislation. Also set out in this Chapter 4, the application of

international conventions to national sport legislation, is a new initiative that deserves further

consideration. For example, as outlined by Publication #8, Passas and Ordway (2016), and in

the Chapter 4 Overview, it is recommended that the Australian Parliament use the UNCAC

(UNCAC 2005) and UNTOC (UN 2000) to enact national legislation that captures corrupt

behaviour impacting on, and perpetrated by, members of the sports industry. As set out in

Publication #7, Sports Integrity: Legislating into a Position of Strength, the Wood Review

has also recommended that the Australian Government ratify the Macolin Convention to

allow national anti-match-fixing to be enacted. Another Wood Review recommendation is

the establishment of a new umbrella body called the National Sports Integrity Commission

(NSIC). Whether the NSIC is an independent body, or forms part of the proposed Australian

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National Integrity Commission (set out in the Chapter 4 Overview), this body could

potentially apply the UNCAC (2005) and UNTOC (2000) definitions of corrupt behaviour to

sport (Wood Review 2018 p10). Future research efforts will aim to focus on extent to which

other countries have successfully implemented international conventions and whether this has

contributed to international sports integrity efforts.

In this context, another research project could consider whether sports organisations, and

particularly those nations bidding for and hosting major events, should be held accountable

for upholding the United Nations Sustainable Development Goals (SDGs) (UN 2015). In

relation to sports integrity, SDG 16 has the most relevance, namely:

16.5: Substantially reduce corruption and bribery in all their forms; and 16.6: Develop effective, accountable and transparent institutions at all levels.

To make the SDGs more accessible for corporations and governments, the UN has developed

the UN Global Compact (2018(a)). The 10th Principle of the UN Global Compact states that:

“Businesses should work against corruption in all its forms, including extortion and bribery”

(UN Global Compact 2018(b)). The Compact’s Anti-Corruption Working Group tackles a

wide variety of issues, including: “Corruption in sport sponsorship and hospitality” (UN

Global Compact 2018(c)). While the Compact is non-binding, it is open to those within, and

supporting, the sports industry, including sponsors, governments, and other organisations, to

join the UN Global Compact, and thereby take a public stance against corruption in sport in

all its forms. In line with community-led initiatives like #newFIFAnow (2015), referred to in

Publication #1, there is enormous capacity to analyse proactive initiatives of this kind

throughout the sports industry in future research projects, and thereby influence policy-

makers.

(f) Researching the link between Athlete (and Referee) Welfare and Integrity

In Chapter 5, a novel approach was adopted which linked the anti-corruption model of asset

protection (ACLEI) with Hill’s research into the exploitation of athlete vulnerabilities in

match-fixing (Hill 2008; 2013) to suggest that broad athlete welfare can support other anti-

corruption strategies. Using German football (Publication #9) and the Australian Football

League (Publication #10) as case studies, the purely economic devaluation of athletes as

“assets” is replaced by a humanistic, inclusive EoC focus. This approach is in line with the

rise of athlete activism and an acknowledgement that human rights must take priority over

commercial interests (eg: Schwab 2017; 2018).

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There are a number of different settings where this connection between athlete welfare and

integrity can be examined through future research. Internationally, the extensive publicity

surrounding a number of shocking allegations in a range of sports has put the spotlight on

inappropriate behaviour in elite sport. The sentencing of Dr Nassar in January 2018 (USA

Gymnastics 2018), following the Daniels Report (2017) involving 265 gymnasts, and

evidence of the abuse of US swimmers over decades (Reid 2018), demands that more is done

to restore trust in sports leadership. In the UK, eighty football coaches have been convicted

of child sexual abuse, while police continue to investigate 2800 historic abuse reports to their

hotline (BBC 2018).

A number of reviews into the Australian Institute of Sport and the culture of Australian

sports have also been conducted over the years, including: the Black Report into drug use

(1989), the Opie Inquiry into Women’s Artistic Gymnastics (1995), and into the men’s road

cycling program (Anderson 2004; Wood 2013). Swimming Australia has also faced a

number of issues relating to its team culture (Bluestone Edge 2013), and the inappropriate

behaviour by elite coaches (eg: Scott Volkers: Keith 2018). More recently, the Royal

Commission (2017) publicly reviewing Institutional Responses into Child Sexual Abuse,

resulting in a report into “Sport, recreation, arts, culture, community and hobby groups”,

created more discussion around what is expected of organisations who have a legal and moral

duty to care for young people. At the same time, Australian tennis player Jelena Dokic

published her story about family violence perpetrated by her father (and coach) (Djokic &

Halloran 2017). Tennis Australia was aware of Jelena’s abuse, and questions have been

asked about why more was not done by the organisations and institutions that were in a

position to assist, and what implications this has for the integrity of sport more broadly.

Another sports environment coming under increasing scrutiny from an anti-corruption

perspective is US college sport.2 There is a growing awareness that a system built on the

financial exploitation of vulnerable athletes is at extreme risk of on-field and off-field

corruption (Kupfer 2018). Brooks et al (2013), for example, has reviewed the ‘points

shaving’ and ‘tanking’ practices in US college basketball (Brooks 2013 pp123-138). While it

is noted that corruption is “not endemic” in college sport yet (Brooks 2013 p127), it is

2 The idea to include the US college athletics case study here came from Professor and Criminologist, Jay S. Albanese, Ph.D., Virginia Commonwealth University

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suggested that the recent changes to US State sport gambling laws (Gouker 2018)3 will only

increase the opportunities for, and ultimately, the prevalence of, match-fixing offences,

particularly if the welfare needs of college athletes are not urgently addressed.

Another area ripe for further research linking athlete welfare and sports integrity, relates to

the rise of womensport. One question to explore further is whether the under payment and/or

the increased injury rates may impact on the susceptibility of women to match-fixing and

other forms of corruption (Didulica 2019; Aubusson 2018; Burrows 2016). The concussion

research on male athletes is clear (Greenhow & East 2015), and more work is being done on

whether this is directly replicated in female athletes. As part of a broader demonstration that

athlete welfare is paramount to sports organisations, leaders need to be assessing the training

and game-day impacts on male and female players to determine whether, as a minimum, rule

changes (Blair 2018), or at the extreme, new ‘gender blind’ (sex inclusive: Hargreaves 2002)

sports need to be developed to ensure that sport continues to be physically safe, and safe from

integrity risks.

In addition to considerations of athlete welfare, the other vulnerable group who requires

greater care to ensure that sports integrity is protected, is umpires/ referees. As highlighted

by Hill’s research into match-fixing (2008; 2013), and referred to in the Chapter 5 Overview,

referees are also routinely exploited using a broad methodology (Hill 2008 pp153-171).

Again, it is hypothesised that if sports organisations use an over-arching EoC approach to

provide better care for our referees, for their mental health, physical safety and financial

security, then sport as a whole will be better protected from internal and external integrity

challenges.

As set out above, there is an endless list of possible research areas to consider in order to

progress discussions on the how best to implement risk management strategies in different

contexts. There are a number of other solutions featured in Ordway & Opie (2017), which

have not yet been examined through this thesis, but should be researched later, including:

“Leadership: ethical decision-making”; “Awareness and education”; “Sport industry

regulatory frameworks”; “Early warning systems”; “Whistleblowing and reporting systems”;

“Integrity units, officials and networks”; and “Research and facilitation of new ideas and

approaches”. One key challenge facing all sports researchers is that sport is only one part of

3 See also: http://www.scotusblog.com/case-files/cases/murphy-v-national-collegiate-athletic-association-2/ and http://www.scotusblog.com/case-files/cases/new-jersey-thoroughbred-horsemens-association-inc-v-national-collegiate-athletic-association-2/

263

http://www.scotusblog.com/case-files/cases/murphy-v-national-collegiate-athletic-association-2/

http://www.scotusblog.com/case-files/cases/new-jersey-thoroughbred-horsemens-association-inc-v-national-collegiate-athletic-association-2/

http://www.scotusblog.com/case-files/cases/new-jersey-thoroughbred-horsemens-association-inc-v-national-collegiate-athletic-association-2/


the fabric of society, and: “Corruption can also be endemic and ingrained within certain

sports and sporting associations. This is made all the more complex when the sport is

encompassed within countries and regions where corruption is tolerated and indeed

incorporated within the societal framework” (BaMaung & Cuddihy 2018 p115). While

acknowledging this challenge, as set out above, the priority for future research will be to

focus on sports corruption case studies from an EoC perspective. In this way the aim is to

determine whether the solutions proposed in Ordway & Opie (2017) can be measured and

demonstrated to support, and develop, ethical leaders and positively influence sports

integrity.

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