Method of Regulation in Professional Sport

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Introduction

It is in the long-term interest of professional sport to increase legal intervention and examine alternative methods of regulation. Sport has been described as a “universal language that cuts across lines of class, nationhood, ethnicity and culture that might otherwise divide.”[1]It provides multiple positive social values including entertainment, it inspires teamwork, opportunities, respect, skill acquisition, achievement and self-expression and provides some of the world’s leading role models. The extraordinary power of sport is undoubted and in order to protect such a precious and unique entity, those who seek to exploit and manipulate the very essence of the game need to be controlled in the interests of the public and upholding fair, equitable justice. The purpose of this analysis is to provide evidence and context to support the need for increased legal intervention in professional sport in order to; combat serious and contrived methods of cheating; erode the legal protection the sports arena affords participants, and achieve justice, equity and equality in the treatment of fraudulent activity.

CHAPTER 1: CHEATING IN PROFESSIONAL SPORT

The year of 2009 brought about some of the most astonishing incidents of sporting scandal to date, with a variety of innovative methods of subverting fair contest on display. There is no doubt cheating has historically plagued amateur and professional sport, and in particular cases of doping[2], but the incidents described illustrate how cheating has gone beyond mere rule breaks; deception, conspiracy and dishonesty are all too common in sporting competition and the line between a rule break and a public law crime is substantially blurred.

Exemplary incidents

One of the most documented incidents at the height of covert cheating was named ‘Bloodgate’.[3] In the Heineken Cup quarter-final, April 2009, Harlequins RFC were losing 6-5 with just twenty minutes to full time. Thomas Williams, the player in question, had taken to the field as a substitute with a fake-blood capsule hidden in his sock; with the intention of faking a blood injury. Within the rules of the sport, this prompted an immediate blood replacement that allowed a specialised goal-kicker to return to the field, giving a potentially decisive advantage to Harlequins. The incident was dealt with by the sports governing body for rugby, the European Rugby Committee (ERC), which held an investigation and a disciplinary hearing.[4] Originally, Williams was banned for twelve months and the club was given a suspended fine of �215,000, judged by the public to be unfairly harsh on the player who clearly did not act entirely voluntarily. However, more revelations emerged as Williams sought an appeal, claiming he was coerced into the act and admitting he had asked the club doctor to serrate the inside of his mouth to cover up any suspicion.[5] At the appeal hearing[6] evidence was presented that Richards, the head coach, had ordered the club doctor to purchase fake blood capsules with the sole intention of using them on the rugby field to violate the rules.[7] It soon became clear this was a pre-meditated conspiracy, albeit executed in a puerile manner, co-ordinated by both the coaching team and an acquiescent player. The ERC subsequently banned Richards from the game for three years and reduced William’s ban to four months, increasing the overall club fine to 300,000 euros.[8]

The second instance arose in the wealthy world of motor sport. This case involved an allegation that the Renault motor team ordered one of their drivers, Nelson Piquet Junior, to deliberately crash whilst driving at over 100mph, in the Singapore Grand Prix 2008.[9] This instruction was given with the intention that Piquet would deploy a safety car to the advantage of his teammate, Alonso, would then win the race for Renault. This has to be one of the most serious and lurid acts of pre-meditated race-fixing the world of sport has seen. Despite the voluntary departures of those involved from team Renault, the FIA awarded Briatore, the former boss of Renault, a indefinite ban from motor sport with prolonged bans for other Renault representatives.[10] Nelson Piquet Junior was spared any sanction in recognition of his voluntary exchange of evidence. Not only was it a cynical violation of the Formula One Sporting Regulations, it endangered the lives competitors and spectators alike.

A third recent example, perhaps not as calculating, but no less serious in consequence, is also worth considering for relativity. Thierry Henry, the French international footballer was competing in the lucrative World Cup qualifying playoff between France and Republic of Ireland in 2009. Television cameras clearly showed Henry handled the ball twice in order to keep the ball in play and pass it to a fellow teammate to score. The match official failed to see the incident. This became the crucial goal that resulted in a French victory. FIFA, the internal sports governing body, accepted that Henry was guilty of �blatant unfair play” but decided to take no disciplinary action.[11] This is an instance where, as replays show, there was a violation of the internal rules of the game but the perpetrator had no pre-meditated intention to deceive the opposition or match officials.

As well as these highly publicised isolated incidents, there is the ongoing problem of match fixing and doping, which also fall under the umbrella of cheating and have continued to plague sport for decades. Match fixing is most prevalent in cricket and horseracing and recently football, has also fallen victim to connived fraudulent exploitation for financial gain[12]. Independent governing bodies have made frequent attempts to respond to match fixing and corruption within the most affected sports.[13] Illegal doping is another highly publicised source of corruption within professional sport, particularly in athletics. There is a vast literature that proposes criminal justice as a solution to the problem, the regulatory approaches and their justifications will be compared and contrasted to justify the most appropriate degree and means of regulating the acts of cheating depicted above.

In terms of the law, there is an ironic injustice that emerges from the examples of serious methods of cheating outlined. If the perpetrator had acted outside the sporting arena, defrauding a public bank of substantial amounts of money, followed by a surreptitious and deceitful cover up, this would most certainly amount to a fraudulent offence worthy of imprisonment. Currently, the sporting arena inadvertently acts as a protective shield, preventing the subjection of perpetrators to public sanctions. This prejudice is the overarching theme and crucial justification for increased legal intervention.

CHAPTER 2: THE CRIMINOLOGY OF CHEATING

It is important to touch on cheating as a criminological phenomenon in order to understand its causes and discuss the most effective mechanisms by which the phenomenon may be regulated. Seldom is cheating actually defined, particularly in terms of sport, where it is more than a mere moral wrong. An attempt should be made to find some degree of agreed clarity as to what constitutes cheating in order to propose reform. Furthermore, once an agreed definition is found, it is vital to briefly highlight the intended outcomes of legal intervention and potential difficulties based upon criminological thought.

The phenomenon of cheating

It is incredibly difficult to define any morally and ethically loaded concept when such diverse opinion of what is right and wrong exist. Within such a social field that is privately governed, the subjectivity involved makes distinguishing punishable cheating even more complex. A very simplistic account of cheating is given as �the principle of equality of chance beyond differences of skill and strategy is violated”.[14] This is a purely ethical definition, which justifies to an extent why cheating is morally unacceptable in sport, however it has to be furthered to justify legal intervention.

An extended, very plausible definition is offered by Green: �In order for us to say that X has cheated, X must 1) violate a fair and fairly enforced rule, 2) with the intent to obtain an advantage over a party with whom he/she is in a cooperative, rule bound relationship.”[15] In terms of how this is applicable to sport: part 1), would be a violation of an internal rule from the sporting federation constitution and part 2) would be the intention to gain an unfair advantage over the opponents and win. The legality of what is being discussed goes further than unsportsmanlike behaviour: at the heart of the matter are serious and covert methods of deception, which is, as Green recognises, more than a simple definition of a rule break.

The distinction between a mere rule break and breaking a rule with the intention to deceive is of great importance to the debate surrounding legal intervention. The intention is the determining aspect of publicly punishable cheating, as it must be an �offence against the principle of justice as well as against a particular rule or norm of behaviour”[16] in order to warrant legal sanction. There is a loophole in this definition, as it does not cover those who break rules without the intention to deceive; for example, committing a professional foul. So essentially it can be said that there are two different types of cheating, one with the intention to deceive, the other without. The latter is of no concern to the proposals for increased legal intervention in serious forms of cheating, as it would be unduly castigatory and place an overwhelming burden on the courts to introduce legal sanctions for plain rule breaks that match officials and governing bodies can efficiently deal with. The �injustice is magnified”[17] if there is intention to deceive as well as break rules; this falsehood is the crucial element that, is argued to be, corrupting sport and therefore the target for legal reform.

Whilst there is no real scholarly consensus as to the true definition of cheating, Green provides a firm basis, which, in essence, is the ethical principle behind statutory fraud. The difficulty is the disassociation that has emerged between cheating and the law, in order to justify public law intervention, cheating must be recognised as more than a purely moral concept and thus become justiciable. By assimilating rule breaks with deception, the definition of cheating is advanced to include a criminal dimension beyond a moral wrong. Ultimately, with such uncertainty surrounding the exact definition of what amounts to cheating, it would be incredibly difficult and potentially unjustifiable to formulate brand new statutory legislation to prevent such actions. Therefore, legal intervention must be invoked by enforcing already existing public legislation, akin to the definition of cheating discussed.

Criminological theory and justification

The fundamental justifications, essentially the factual reasons, as to why increased legal intervention is required are discussed in Chapter 4. Criminological theory is to be reviewed briefly in order to evaluate the social need, desired effect and likely success of the implementation of criminal sanctions in the sports sphere.

Whilst the aim of introducing criminal sanctions is to control cheating in sport, there is an overarching necessity of procedural transparency and equitable justice that is key to any proposals being introduced. Sherman originally suggested that fairness and legitimacy are required to control crime; �procedural justice of experienced punishment is essential for the acknowledgement of shame, which conditions deterrence; punishments perceived as unjust can lead to unacknowledged shame and defiant pride that increases future crime.”[18] As it is, the sports world is afforded isolation from the public law, the public view the current punishments enforced as unduly lenient and the growth of professional cheating shows the current sanctions lack deterrent effect. However, the line must be drawn to avoid overly excessive punishment, which as Sherman suggests will increase crime, so therefore the key factor in mind when suggesting reform to control cheating, is ensuring the disciplinary procedures are fair, transparent and legitimate in the eyes of participants, governing bodies and the public. Recently there have been numerous academic writings recently with the suggestion that a criminal framework should be introduced to specifically control doping in sport. Justificatory arguments in favour of a legal framework against doping, also relate to cheating and the suggestion that invoking public law would �restore public confidence and respect�and ensure adherence to the essential values of fairness, justice and equality in terms of competitive sport”[19] are supportive of Sherman’s theory. The certainty of punishment rather than severity of punishment is crucial and the criminal law provides a preventative, definite source of sanctioning. In turn this will ultimately lead to more effective outcomes and a reduction in cheating.

As well as legitimacy, Sherman also suggested three other �emotional responses to sanctioning experiences: [legitimacy] social bonds, shame and pride”.[20] Shaming is crucial to sport sanctioning and provides further justification for criminal intervention. Braithwaite described the social process of �reintegrative shaming”[21], suggesting that social control and deterrence could be achieved by shaming certain acts within the family or community and punishments should be enforced by those closest to the perpetrator. Arguably, the sports’ self-regulatory system has relied on criminological notions of shaming, towards both the club and individuals, by publicly issuing penal sanctions. However, this type of shaming in the sports arena is no longer adequate in deterring covert methods of cheating, whilst some shame may be felt by the participant and club who have breached internal rules of the game, this shame is not sufficient to deter themselves and other competitors from subsequent cheating. Braithwaite states, �shaming is an important backstop to be used when consciences fail to deliver conformity�formal punishment is another.”[22] It is fair to say that the moral conscience within sport has been slowly eroded by commercialisation[23]. Therefore, by adopting formal, transparent and fairly implemented criminal sanctions in the sports sphere, certain and effective punishment for serious acts of cheating will be enforced uniformly by the higher authority. It is hoped that this certainty of proportional punishment will bring about the reincarnation of shaming as a deterrent and increase social control so formal punishment will remain a ‘backstop’.

Fundamentally, the overarching imperative to increasing legal intervention is not to increase the severity of punishment, this is merely a by-product, rather, the emphasis is on the creation of a fair and transparent regulatory system that efficiently deals with fraudulent behaviour directly, as if it occurred in ordinary society. Sherman suggests the key to crime reduction is if the �police and courts treated all citizens with fairness and respect.”[24] Based on these criminological theories the aim is; for all sports participants to be subject to the same uniform criminal sanctions as ordinary society; for a shift in judicial and public perception of serious acts of cheating so they are recognised as ordinary ‘white -collar crime;’ for public law to remain a secondary regulator so social control and self-regulatory control can still prevail. In turn this procedural justice will erode the protection of the sports sphere from public law and increase participant’ compliance, obedience and moral conscience.

CHAPTER 3: THE CURRENT SELF-REGULATORY SYSTEM

Regulation is a fundamental requirement in professional sport for multiple reasons, particular benefits include: consistent administration, clear rules and discipline procedures, protection of competition, equality and fair play and to provide an internal structure that embodies constitutionalism. Historically, sport has operated as an entirely autonomous entity, each individual sports’ governing body formulating its own rules and regulations and relying on sub-legal procedures to maintain cohesion, obedience and integrity. There are three distinctive ways in which governing bodies oversee the management of the individual sport: firstly, through the basic playing and penal rules of the game; secondly by relying on sub-legal ethical principles; and thirdly through public administrative law, accompanied by natural justice. There are two contrasting opinions on how sport should be governed: one directly in favour of self-regulation, and the other in favour of public legal intervention. Both have fair standing, however, it will be highlighted that there is obvious systematic failure, weakness and inefficiency in the self-regulatory system, amounting to the first justification for legal intervention.

Penal rules of the game

The power of self-regulation stems from the contractual relationship between the club and the player. If a player violates the internal rules of the game, they will be subject to disciplinary procedures derived by their governing body. The contract is the legal binding tie between the association and the player, many sports still operate this system, which allows for the unique area of sport to run it’s own private legal procedure, incorporating administrative, judicial and executive functions that validate the mere supervisory roles of Parliament and the judiciary. There are many benefits to this such as; avoiding the expense of the public system; a relatively quick system of adjudication; and maintaining the emphasis on the sports policy, rather than becoming embedded in deep legal analysis. The informal nature of the proceedings also allows governing bodies some flexibility and proceedings are adaptable to the individual case. Both the legal world and sports world have had a gentlemen’s agreement[25] that private jurisdiction inherent to the specialist knowledge of the individual governing bodies is the most satisfactory means of handling internal sporting disputes. Lord Denning expressed his support for a self-regulatory legislature in the sporting sphere remarking that justice was better achieved �by a good layman than a bad lawyer”.[26]

However, in light of sport’s commercialisation as a business industry, it is highly questionable whether self-regulation is still a suitable means of disciplining and curtailing acts of cheating. Lucrative revenue generated from television deals, sponsorship, ticket sales and merchandise have transformed the world of sport into a worldwide profit making enterprise, exploiting its natural social magnetism. Academics have argued forcibly that the �myth of sporting autonomy has been used as an argument against intervention for too long.”[27] The examples above of attempts made by the self-regulatory bodies starkly highlight the lack of proportionality between the private sanctions imposed and the subvert, dangerous and complex acts of cheating that occur. From a public interest point of view, this is simply unjustified and represents a palpable need for legal intervention. Whilst there are numerous benefits to the self-regulatory system, the inefficiency of penal rules provides definite scope for the introduction of a legal framework.

Sub-legal governing principles

‘Corinthian spirit’ also known as fair play, is the sub-legal, ethical principle that prevents cheating, but which has recently faded from professional sport and no longer serves it purpose. Historically, the Corinthians were a highly successful amateur football team in the 1880’s, that gave name to the emerging ethos of fair play sportsmanship and a sporting moral code of behaviour. The type of selfless, non-violent, gentlemanly behaviour was inherent to the values of the amateur game. Today’s sporting world has changed dramatically, via two main drivers; mass media and money[28]. Both of these influences would have been entirely alien to the Corinthians. As sport continues to develop as a professionalised and publicised business industry, it would be reasonable to expect that Corinthian spirit would still be the prevalent intrinsic value in sport. Unfortunately this is not the case. The moral principle of fair play is no longer equipped to regulate the industry, the explosion in sports litigation is enough to show that fair play has dissolved from the forefront of national and international sport. The fair play principles and Corinthian values have succumbed to commercialisation, which in turn has catalysed such intricate methods of cheating for gain. This has been named the ‘corruption of sporting morals by money'[29] and there is now an urgency required in introducing public legal procedures in sport.

The gulf between Corinthian spirit and the modern game is enormous, although not beyond repair. In any competitive match there is evidence of participants possessing a winning mentality, whether for money or success, it is unmistakable. If a solid legal framework is introduced it could be the key to deterring, and proportionally punishing, those who display serious misconduct and damage the game. Grayson, the ‘founding father'[30] of the relatively new hybrid between sport and the law, was adamant that dispute resolution should not be in the hands of sports governing bodies and predicted that ‘if sport and its rules cannot or will not try to preserve the Corinthian tradition�then the courts can and will do it for them, through the law of the land at both criminal and civil levels.” This is the beginning of a body of evidence that points towards recognising legal intervention as the substitute for inefficient, normative, self-regulatory procedure. In turn, it is hoped that Corinthian spirit will instinctively resurface and fair play will be protected.

The Court of Arbitration for Sport

Law is reactive, regulation is proactive, when regulation fails, the law should intervene and self-regulation should be open to legal examination. This was essentially the legal vacuum the Court of Arbitration for Sport (CAS) was designed to fill as disputes in sport rose dramatically in the 20th Century. The CAS is the highest authority in sports litigation and offers an additional international judicial dispute resolution service. The International Olympic Committee (IOC) established the CAS in 1983[31] that comprises 300 arbitrators originating from 87 different countries, selected for their own specialist sport and legal expertise[32]. The CAS has a comprehensive list of rules and common-law principles which it must abide by, set out in the CAS Code[33]. The court is commonly used by players, coaches and clubs alike as an appeals procedure to a decision made by their relevant sports governing body. The individual federation must include an arbitration clause in the participant’s contract permitting the individual to refer disputes to the CAS in order to make use of the procedure. Whilst signing up to the CAS is entirely voluntary, there are significant benefits to the sports governing bodies, including reduced public judicial intervention and a knock on increase in the legitimacy of the sports body themselves. The CAS operates independently of the rather more intimidating and formal national courts, with the view to settle disputes quickly, inexpensively and effectively[34]. However, there is significant disadvantage to this independence; in particular, that the court is not a recognised legal institution; it is essentially just an extension of self-regulation and contributes to the defence of sporting bodies by applying minimum common law standards.

The key question remains; is if the court is serving the needs of sport and regulating cheating? Evidence suggests, the answer is no, based upon two fundamental flaws in the system; the first relating to the restricted powers of the CAS and the second relating to the CAS’ integrity.

Firstly, the CAS holds no greater power than the sports bodies themselves and does not possess any legal status. The court does not adhere to the ‘stare decisis’ principle for example, which means legal decisions are left to the discretion of the court, legal certainty and precedent is severely lacking. Furthermore, there is no cross-examination or dissenting opinions and the award eventually granted is only accompanied by �brief reasons.”[35] There are two primary weaknesses in the power of the CAS that signify it is incapable of handling serious incidents of cheating. One being that a case is only brought by mutual consent, therefore, both parties have to consent to higher authority involvement, so the CAS cannot proactively intervene. It is notable that the most common cases of cheating to reach the CAS only involve doping.[36] Secondly, by its very arbitrary nature, the court cannot enforce statutory punishments; the awards the CAS can grant are specialist resolutions based upon the penal penalties already imposed. This means that those incidents sufficiently grave to be crimes cannot be fairly and proportionally sanctioned by any other jurisdiction than the national courts.

Secondly, sporting disputes are settled �within the family of sport,”[37] which inevitably leads to distrust and suspicion of the arbitration process, similar to that which surrounded the family courts prior to their recent opening. The current self-regulatory framework has been criticised directly as lacking �certainty, consistency and transparency.”[38] By relying on mutuality and confidence of the parties, an approach not favoured by the traditional courts, the CAS is commonly viewed as somewhat of an untouchable entity of justice. For internal regulation of sports federation’s decisions, the CAS serves its purpose, albeit impinging on key common law principles and lacking in transparency and accountability. In order to prevent the more serious acts of cheating avoiding disproportional, private sanction; the inequitable, unjust system that regulates sport needs reform to fulfil the public interest for fair, transparent justice.

Fundamentally, the CAS cannot be expected to do anything more than act as an arbitrator and attempt to uphold natural justice. Arbitration as a method of justice is insufficient to successfully and proportionately deal with the elaborate and controversial methods of cheating and the legal issues that arise. The CAS and sports administrators now face disciplinary matters that warrant sanction beyond their jurisdiction and consequently but perhaps inadvertently, the CAS serves to protect not only the perpetrator, but sport as a whole, from public law sanctioning.

Public administrative law

Examining the examples of cheating highlighted earlier from a legal perspective, it is fair to conclude that certain public law obligations placed on the self-regulatory system such as natural justice and rule of law, are being floundered. When sports federations discipline players, particularly in matters of cheating, they must allow the player legal representation and the decision made will effect the career of the individual and is often accompanied by a fine for the club responsible. However, increasingly so, the decisions are made with regard to the economic and social consequences for the sport, this is particularly true in cases of cheating which attract huge media attention, and thus drastically conflict with the fundamental principles of natural justice[39]. These cases often don’t reach the CAS as sports governing bodies are keen to deal with the incident quickly and divert media attention. This is at the expense of fair and just legal proceedings. A prime example of the sports governing body not acting in accordance with the natural justice principle was in ‘Bloodgate’, where at the first hearing the victim was held solely responsible for the act of cheating and the perpetrator, coach and club, were spared punishment. This is a direct result of sporting feudalism and the lack of a wholly impartial, unbiased and separate higher authority.

Whilst it has been found that the sports regulatory system is failing to uphold natural justice, it is highly questionable whether the rule of law is evident either, or if in fact as it has been argued; the growing entity of sports law is merely a �cloak for continued self regulation.”[40] Legal regulation is entirely in the hands of sports governing bodies, essentially making decisions that are immune from any formal law and based upon their own general norms. Public law is not viewed as the supreme authority in professional sport. This incredibly unique power masquerades as justified by the apparent common law principles, namely natural justice, applied by the higher authority, CAS. However, additional public legal avenues need to be extended and applied to proceedings in professional sport in order to meet the requirements of democratic legitimacy, national accountability and proportionality. Self-regulation as a sole supervisory system was adequate when sport was a pastime, but in the excessively commercialised world of sport, governing bodies control large economic, social and politically powered resources, which are longer outside the concerns of the state. The degree of uncertainty and lack of transparency that comes with self-regulation can no longer be tolerated in the interests of the public.

Judicial Review

Judicial review is concerned with the lawfulness of decisions made by public bodies. Sport governing bodies are private entities but are still required to act lawfully, fairly, reasonably and rationally and in accordance with legitimate expectations. They are not however, subject to judicial review and only accountable to the supervisory jurisdiction of the ordinary courts. The legal binding between sport governing bodies and their players is a contractual relationship, therefore, challenges to the decisions made by sports governing bodies are brought in private domestic proceedings, via the CAS, not by way of judicial review. A possible avenue for reform would be to allow judicial review to act as the highest authority for appeal, in order to regulate the fairness and legitimacy of the decisions made by the self-regulatory bodies. The difficult hurdle to overcome is proving that sports governing bodies are performing public functions and existing as public bodies per se.

During the 20th Century the issue of judicial review in sport was addressed on numerous occasions, in particular in relation to decisions made by the former horse racing governing body, the Jockey Club. The cases have centred on whether sporting bodies are public or private entities for the purposes of judicial review, which was clarified in a non-sporting case. In R v Datafin v Panel for Takeovers and Mergers[41], it was explained that where power derives from statute, judicial review applies, but where power derives from contract, then judicial review cannot be invoked. However, it was deemed vital to assess not only the �source of the power but [also at the] nature of the power”[42] and it is possible for a governing body to fall �between the extremes”[43] of contractual and statutory status. This middle ground has the potential to encompass a sports governing body.

This possibility was explored in relation to sport in the case of R v Disciplinary Committee of the Jockey Club ex p. Aga Khan[44], where the sports federation was challenged with a claim that its decision to suspend the jockey was ultra vires. An important point was raised, which is even more prevalent in contemporary society; that the substantial de facto control sports governing bodies have essentially monopolised the entire individual sport industry. Bingham MR added that �if the Jockey Club did not regulate this activity the government would proba

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