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International Sports Law Review

2017

Sport, ethics and the law1

Michael J. Beloff QC*

Subject: Sport . Other related subjects: Criminal law. Jurisprudence.

Keywords: Cheating at gambling; Corruption; Ethics; Misuse of drugs; Organised crime; Sporting organisations; Sportspersons

*I.S.L.R. 3 In 2011 I was sitting in the stadium in Daegu, the city which was hosting the World Athletics Championships, eagerly anticipating the final of the men’s 100m, the blue riband event of track and field.

I was in the company of Sir Craig Reedie, a Vice President of the International Olympic Committee and currently the Chairman of the World Anti-Doping Agency. As those of you who follow the sport of track and field may remember, Usain Bolt, the much-medalled Jamaican sprinter, false started and was disqualified.

This was a tribute to the integrity and resolve of the Korean official in charge of the start who insisted on the rules being observed, even though at the same time he disappointed millions of spectators throughout the world. But immediately after this dramatic incident, Sir Craig turned to me and said "Michael, I would be very interested tomorrow to see the trends in the Asian betting markets".

I hasten to say that there is not the slightest evidence that Mr Bolt’s false start was deliberate or designed to assist a sophisticated gambling conspiracy. It was obviously an unfortunate error by an over-enthusiastic athlete determined to give not the slightest advantage to his competitors. But that so worldly-wise and experienced a sports administrator as Sir Craig could even suggest that the false start might be other than accidental shows how deep run the concerns about whether we sports fans are being constantly deceived by what we see on track, pitch, road or across country, in stadium, velodrome or pool.

Sport’s attraction depends upon its unpredictability. By contrast, in other forms of entertainment, theatrical or musical performances, the outcome is pre-ordained. But is it the case that we are watching competitions, whose results are not fashioned by a combination of talent, application, tactics, playing conditions and, of course, sometimes luck, but instead manufactured by some form of unacceptable manipulation?

A few years ago Jacques Rogge, the then President of the International Olympic Association, said that corruption was now a bigger threat to the integrity of sport than drugs. The two in fact have much in common. Both undermine in their different ways fair competition which is—or should be—sport’s overriding objective. Indeed, sometimes these two evils coincide.

An independent enquiry by the World Anti-Doping Association (WADA) whose report was published in January 2016 found that doping violations by Russian athletes had been regularly concealed with the help of officials in the Russian federation. In one instance a Page2

Russian female athlete, Liliya Shobukhova, had been blackmailed by officials in the Russian federation to pay bribes for such concealment in order to allow her to continue to compete on the lucrative marathon circuit.2 Similar allegations have been made in respect of Kenyan athletes. The key difference of course is that whereas doped athletes are seeking to win, athletes (or teams) involved in match fixing are seeking to lose.

Corruption in sport is not new. A document, transcribed and translated from a cache of 500,000 fragments of papyrus at a rubbish dump in the ancient Egyptian settlement near modern Cairo, reveals that a wrestler, managed by his father, agreed to accept a bribe of 3,800 drachmas to lose to his opponent at a regional sporting contest3 called the Great Antinoeria.

As it was with sportsmen so it was with officials. The most famous classical Olympic controversy involved the notorious Roman Emperor Nero in the Games of AD 67. Not only did Nero bribe Olympic officials to postpone the Games by two years, he also bribed his way to several Olympic laurel wreaths. On one occasion Nero competed in the races with a 10-horse team, only to be thrown from his chariot. But even though he did not complete the race—no Ben Hurhe—he was still proclaimed the winner on the grounds that he would have won had he been able to finish.

In modern times the examples of corruption contaminating the field of play are many and various. They span all sports. They illustrate the many ingenious ways in which competitive results can be distorted.

Let me start with baseball.

In 1919 the favoured White Sox lost in the final of the World Series to the Cincinnati Reds after a promise by a crime syndicate of US $100,000 to eight of their players. They were acquitted in the courts, but banned for life by the baseball commissioner with the unusual name of Kenesaw Mountain Landis. He was right to ban them. No less than five of the eight players later admitted their guilt.

Next to boxing.

In 1965 Cassius Clay, later Mohammed Ali, knocked out Sonny Liston in their return bout in Maine in the first round. No serious student of the sport is convinced that it was the weight of Clay’s phantom punch that achieved *I.S.L.R. 4 that surprising result. It is far likelier that Liston was the subject of threats to life or limb if he did not deliberately fall down in the ring.

Next to cricket.

The International Cricket Council was constrained to set up a Code of Conduct Commission, which I chair, in the wake of scandals involving match fixing by such as Hansie Cronje, the captain of the South African team. But the most notorious example was provided by the three Pakistani test players who spot fixed during the Lords Test of 2011. The story in short was this. An undercover journalist pretending to representing a gambling syndicate bribed a greedy agent to persuade the three Pakistani cricketers to bowl three illegal balls at particular times in a match—something which is called spot fixing. The agent was therefore able to predict exactly when that would happen.4 Unfortunately for him the journalist secretly taped the agent making his predictions. Page3

After an investigation and hearing by a tribunal which I also chaired, the International Cricket Council banned all three from the sport for periods of 5–10 years. Later, two were tried in a London court and found guilty of charges related to the corrupt scheme. The third pleaded guilty to similar charges. All received prison sentences ranging from six to 30 months. The youngest, Mohammad Amir, served out both his criminal sentence and his cricketing ban and played a major part in the 2016 Test series between and Pakistan.

Lastly to tennis.

In May 2016 the BBC broadcast a programme in which allegations were made that a significant number of players on the professional tennis circuit were fixing actual matches. The revelation prompted the various sports tennis governing bodies to set up an inquiry into whether they had been sufficiently diligent in dealing with such claims in the past. The Tennis Integrity Unit had, as recently as June, to defend itself against claims that it ignored evidence of potential match fixing involving 29 international players uncovered by a prosecutor in Cremona, a city in the North of Italy.

What is the common thread that ties these various incidents taken from different decades and different sports together? In a word—money. Large sums can be made by betting on certainties. The sportsmen make profit either by gambling themselves or from being paid to cheat by professional gamblers who make still larger profits. Most of the match fixing or spot fixing takes place at the lower levels of the sport where the legitimate rewards are less and the temptation to act illegally are correspondingly greater.5 Players like Andy Murray or Roger Federer can become rich on prize money and sponsorship. The lower ranked players who compete on the second tier tennis challenger circuit cannot. This makes the cheating particularly difficult to detect, since obviously less attention is paid to less important games. Football is another sport where match fixing is rife. It does not happen at the World Cup but in lower leagues in national competitions.6

There is regrettably little coordination in terms of cross-sport responses. Self-regulation within a national framework is the usual mechanism. But self-regulation carries within it the seed of conflict of interest. The authorities’ desire to eliminate corruption collides with their desire to present the best image of their sport to the world. What should be a vigilant eye can become a blind eye.

The problem is intensified where so much corruption, especially where linked to gambling, is international and often linked to sophisticated organised crime. Investigators for bodies such as FIFA or the International Association of Athletic Associations lack the powers available to law enforcement agencies: search, seizure, surveillance, subpoenas. They cannot compel potential witnesses to speak to them or obtain crucial documents such as bank accounts. They cannot require such agencies to make inquiries on their behalf or to share the findings of the inquiries of those agencies. Their regulatory powers stem from contract only between those bodies and those who participate in sport under their aegis.

As the Chairman of the International Cricket Council’s Anti-Corruption Unit said when complimenting the newspaper on its successful entrapment of the Pakistani players, "We are not a police force. We cannot arrest and we cannot engage in undercover operations". But he could well have added words to the effect that it would be improper for sports bodies to indulge in entrapment at all. Page4

Sam Allardyce, the transient England manager, only uttered his fateful words, unfairly described as suggestive both of avarice and disloyalty, at the instigation of journalists masquerading as businessmen, although no actual or past misdeeds were disclosed in the sting.7 And journalists, the protection of whose sources is as important to them as the Hippocratic oath is to doctors, may describe a possible scandal in their stories, yet decline to assist the governing bodies in their pursuit.

But experience shows that it is precisely material procured by methods not open to governing bodies which produces the evidence which can prove guilt. In Orievkov,8 the first case before CAS of a referee involved in match fixing, the referee appealed to CAS. Essential to the dismissal of his appeal were telephone recordings made by German police of the persons who had bribed him. *I.S.L.R. 5

An investigator in the first major case for the International Association of Athletic Federations suggested that a national governing body should only obtain membership of an international body if it undertook to try to procure the enactment of laws which would require prosecuting authorities to share information with the sport’s own regulators.9 This is blue skies, even if wishful, thinking. Only national legislatures can enact laws; and legislation of this kind is unlikely ever to be a high priority—certainly not in all quarters of the globe. More plausible, but with the same objective in mind, would be legislation to endow sports regulators with powers equivalent to those of public authorities.10

How then can this insidious form of corruption otherwise be rooted out? Prevention is obviously better than cure. I suggest the following remedies.

First, education. The International Cricket Council responded to a wave of match fixing cases by devising a programme for young players warning them of the perils of approach by gamblers. The International Tennis Federation has done the same.11

Second, clear and specific rules whose enforcement cannot be challenged by clever lawyers on grounds of ambiguity or uncertainty. Most sports have sensibly opted for a definition of a list of specific offences that target specific acts or omissions with a catch-all or sweep-up general offence at the end,12 such as "conduct which undermines the integrity of the sport".

Third, effective deterrent sanctions. The CAS panel in Orievkov13 said:

"It is … essential … for sporting regulators to demonstrate zero tolerance against all kinds of corruption and to impose sanctions sufficient to serve as an effective deterrent to people who might otherwise be tempted through greed or fear to consider involvement in such criminal activities. Match officials are an obvious target for those who wish to make illicit profit through gambling on match results (or indeed on the occurrence of incidents within matches). They must be reinforced in their resistance to such criminal approaches. CAS must, applying naturally to considerations of legality and of proportionality, respect in its awards the approaches of such regulators devoted to such virtuous ends."

But these sanctions must indeed be proportionate. Life bans may be invalidated under laws which protect the right to work as a species of human right and by legal doctrines hostile to restraints of trade, however powerful their deterrent effect. Restitution of prize money won has been proposed as a punishment where the sportsman won prizes with the assistance of a prohibited substance. But this is inapplicable to match fixing where the cheater has won Page5 no prize money, although there would, however, be an alternative of forcing the cheater to disgorge money illicitly made from his assistance to a gambling coup.

Fourth, detection, which is the key. Inferences can be drawn from unusual movements in betting markets which must be monitored. But the most reliable source of evidence, apart from that provided by prosecutors or police, comes from whistleblowers. Whistleblowers must be encouraged, not punished.14 Even where they are themselves guilty of some other offence, for example doping, their penalties can be reduced as WADA rules permit. More generally, protection must be devised for whistleblowers allowing them to give anonymised testimony15 or even maybe safe houses.

Fifth, a strengthening of substantive domestic law. Many countries do have laws against corruption which, though not sport specific, can be wide enough to cover sport. The valuable principle of sports autonomy is designed to avoid the state interfering in the administration of sport for political ends, but does not, of course, mean that sport stands outside the law. Criminal law, like tax law, applies to everyone.16

In the United Kingdom, the Prevention of Corruption Act which dates from 1906 criminalised the taking or making of payments by an agent carrying out duties for his principal. Such gifts of payment in the field of football transfer were colloquially known as "bungs". The same legal provision was used to bring charges against the professional footballer, Bruce Grobbelaar, for accepting bribes to let in goals and so influence the outcome of matches. He was acquitted in the criminal court, but was unsuccessful in the civil courts like OJ Simpson, though in his case in an action for defamation against a newspaper which had in effect repeated the charges.17

Criminal penalties and sporting sanctions have, of course, different purposes. Obviously someone who is in prison is effectively suspended from his sport. But criminal courts cannot impose sporting sanctions such as bans, long or short. I have already instanced the three Pakistani cricketers who, once they had served their prison sentences, were still barred from resuming participation in cricket for a number of years—though all are now eligible to play again. So criminal law is not by itself enough.

To coordinate the attack on sporting dishonesty, the time may be right for creation of a body modelled on the World Anti-Doping Agency (WADA) but dealing with *I.S.L.R. 6 corruption only.18 This would complement the work of NGOs such as Transparency International. But such a body will need proper funding.

As the retiring Director General of WADA said in an interview earlier this year to the Japanese newspaper, Yomuir Shibun, "one footballer in England makes more in a week than my annual budget".19 The FIFA Integrity Unit, described by media cynics as a contradiction in terms, runs on an annual budget less than the cost of hosting the party for the draw for the 2014 World Cup Finals.20

I should add that there are other forms of sporting corruption, generating the same problems and with same potential solutions. Those are prompted by the desire to win—not lose. In the 2000 Summer Paralympics athletes from Spain competed and won the gold medal in the Basketball intellectual disability event despite the majority of players not having an intellectual disability at all.

On a less blatant level there were accusations before and during the Rio Paralympic Games Page6 that athletes were talking up their impairments in order to achieve reclassification and obtain in consequence a competitive advantage.21 Baroness Tanni Grey-Thompson, the most famous British paralympian, described this as "the equivalent of doping".

Originally the classification was medical since the object of the Paralympics was rehabilitation. But meaningful competition demanded a classification based on the extent to which the disability adversely affected the capacity to perform in the athlete’s preferred sport. Yet here the possibility of exaggeration by the tested and subjectivity among the testers created further difficulties; and the resultant classifications would, in any event, test the intellect of Senior Wrangler or Fellow of All Souls.

In the Winter Olympics in Salt Lake City in 2002 two sets of gold medals were awarded in pairs figure skating to the Canadian pair and to the Russian pair after allegations of collusion among the judges. There were aberrant verdicts in some of the boxing contests in the Rio Olympics prompting a memorable outburst from the Irish super-heavyweight Michael Conlan. Whether these were the product of corruption, collusion or sheer incompetence I cannot say.

In 2009 a scheme was devised by the English Rugby Union club Harlequins to fake a blood injury to a player so as to allow another fresh player to be brought on at a critical moment in a cup match. The scheme included deliberately cutting the player’s mouth open after the match in order to cover up the fake injury.

Most prominent and problematic of all is doping. Why do most of us regard the use of prohibited substances, whether deliberate or not, as antithetical to sporting ethics? One objection lies in the potential damage to the health of those young people who use them, reflected in the documented stories of involuntary change of sex of some female athletes subjected to the East German steroid regime not to speak of the early death of the American female sprinter Florence Griffith-Joyner, "Flo Jo", whose dramatic improvement between the Los Angeles games of 1984 and the Seoul games of 1988; resulting in records which are still untouchable remains, unexplained. But this objection is not itself an ethical one, not least to those who would adopt and adapt the philosophy of John Stuart Mills that the criminal law should only intervene to prevent persons from harming others, not themselves.22

There is an inchoate but nonetheless real sense—a gut feeling if you prefer the vernacular—that the outcome of sporting competitions should be decided on the field of play not in laboratories. David Howman, recently retired CEO of WADA, stated:

"Doping undermines the values of sport. The intrinsic value of sport, often referred to as the spirit of sport, is the celebration of the human spirit, body and mind, and is characterised by values such as ethics, honesty, respect for rules, self-respect and respect for others, fair play and healthy competition. If sport is void of these rules (and others) it might be argued that is no longer sport." 23

There is a case for criminalising at any rate deliberate doping which can be described not inaptly as a fraud on the public and on their competitors.24

But how level is the playing field? Page7

The cyber attack by Russian hackers under the non de plume "Fancy Bear" on the files of the WADA revealed that some of the best-known athletes in the world, the gymnast Simone Biles, the Williams sisters, the British cyclists Sir Bradley Wiggins and Chris Froome, were the recipients of Therapeutic Use Exemptions allowing them, for certified medical reasons, to use substances on the WADA prohibited list, all of which, while having prophylactic or curative functions, also had incidentally performance-enhancing effects—which is why of course they were on the prohibited list in the first place.25 Sir Bradley’s injections of triamcinolone, a potent corticosteroid, before the three most important road races of his life, the 2011 and 2012 Tours de France—he won the latter—and 2013 Giro d’Italia—were all vouched for *I.S.L.R. 7 by TUEs but do agitate the question as to whether these are too easily given.26 There is a fine, some might say all but invisible, line between performance restoring and performance enhancing, between what is illegal and what is merely unethical. President Putin has seized on the TUE revelations to argue first that all TUEs should be made transparent, secondly, that those who have them should be banned from major competitions27 in an astute move designed to divert attention from the blatant Russian infractions of the World Anti-Doping Code.28

There are some who would allow unrestricted use of drugs not simply because the battle against their use is not visibly a winning one—the pharmacists outstripping the lawyers—but on the basis that all is fair in sport as it is said to be in love.29 I cannot subscribe to that approach, and not just because of the risks to health of those who use drugs on the WADA prohibited list. If drugs can be used with equanimity, why should not genetic manipulation be also countenanced?

The war on drugs must go on,30 but it is not assisted by the recent charge and countercharge between the IOC and WADA about who bore responsibility for the late revelation of an apparent Russian state doping programme. IOC member, Juan Antonio Samaranch, said that WADA is "responsible for what goes on inside international laboratories, but their labs in Sochi and Moscow were like Sodom and Gomorrah".31 A summit meeting of national anti-doping agencies has (rightly) called for independence from sporting bodies.32 WADA itself is seeking its own powers to punish.33 Persons caught doping can be turned or flipped34 to aid the authorities. Clean athletes can seek to ostracise cheats.35 Retesting with new methods casts a long shadow. (In Konak v IOC,36 as sole arbitrator I opined that the ability to reanalyse samples with the benefit of advanced techniques, reflected in this case, is a valuable weapon in the battle against doping in sport and should further deter athletes from deliberate cheating and further encourage them to take care not inadvertently to ingest prohibited substances.).37 The IAAF has launched an online portal for reporting suspicions of doping.38

But whence the money is the perennial question with no easy answer.39 Nor was the unedifying attack on Sir Craig Reedie in Doha at the Assembly of National Olympic Committees40 conducive to the promotion of clean sport. It is usually better to attack the poacher than the gamekeeper.

Looking beyond the allegedly unfair advantages conferred by doping, we have to recognise that unobjectionable advantages are not evenly distributed. Some athletes come from wealthy countries and have access to the best facilities, coaching and medical treatment; others from poorer countries but with advantages of altitude—Kenya or Ethiopia—improving stamina, which only the rich such as Novak Djokovic can replicate with Page8 his portable hyperbaric capsule. Indeed, in one sense all sport is unfair since, as Malcolm Gladwell put it, "Elite sport is a contest among athletes with an uneven set of natural advantages".41

In this context, an issue of profound sensitivity relates to so-called intersex athletes.42 An IAAF regulation which had prescribed an endogenous testosterone limit above which a person could not compete in a women’s event was suspended by a CAS panel on the single ground that the advantage obtained had not been sufficiently proven to exist.43 Yet in the Rio Olympics the first three places in the women’s track 800m were filled by intersex athletes, women with testosterone levels higher than those of the suspended regulatory limit. The Danish Girl, memorably played on screen by Eddie Redmayne, described a transition from male to female. Athletics has to wrestle with a diluted version of the reverse problem. But some ask not unreasonably is the condition of hyperandrogenism so different from the physical advantages gained by other natural physiological *I.S.L.R. 8 conditions such as the long legs which benefit high jumpers or basketball players? These are challenging thoughts.44

Some corruption affects what happens on the field of play; others what happens off it, The EU Code of Sporting Ethics 1992 states: "The basic principle of the Code of Sports Ethics is that ethical considerations leading to fair play are integral, and not optional, elements of all sports activity, sports policy and management." I emphasise the word "management".

There are so many opportunities for corruption in all the economic areas connected to money-making modern sport—the signing of players sweetened in football by so called bungs45; marketing; sponsorship; ticket allocation46; media rights. In the words of one commentator, "the history of sport divides into two eras; before TV money and since".47

Above all, there is scope for corruption in the grant of major competitions, such as the or World Championships to particular cities where success in the bidding process almost always improves national prestige, if, alas, not so frequently the successful city’s finances. The bid team for the Salt Lake City Winter Olympics in 2002 bribed at least 10 voters, in one case with plastic surgery. A reform programme pioneered by Dick Pound the Vice President of the IOC resulted in a complex set of regulations governing the bidding process which, as Ethics Commissioner for London 2012, I had to master, and which forbad direct contact between IOC members and bidding cities.

Despite this, the problem may not have completely disappeared. French prosecutors are investigating the bidding process for the Rio and Tokyo Olympics. And suspected irregularities in the bidding process are not confined to the Olympics. There are no less than three inquiries into Germany’s bid for the 2006 World Football Cup involving allegations of secret payments made to the famous footballer Franz Beckenbauer.48 Controversy continues to swirl around the allocation of the same tournament to Russia in 2018 and Qatar in 2022, described in detail in a book by two British journalists called The Ugly Game. Another WADA Commission led by the same Dick Pound advised a review of all bids for the IAAF World Athletics Championships dating back to Berlin in 2009 and at least one bid is under investigation by the IAAF Ethics Board which I chair.

Under its ancient regime FIFA had become in the eyes of many a by-word for corruption. Although its headquarters are in Switzerland which favours light touch regulation for what are in law private bodies even though they have powers greater than many public Page9 authorities, many of its senior figures are the subject of potential criminal proceedings in the Swiss courts, as well as in those of the United States—exercising its long arm jurisdiction. Indeed, recently one member of its own ethics commission was being investigated for corruption.49 FIFA has not yet found a convincing answer to the Roman saying Quis custodiet ipsos custodes —"who will guard the guardians themselves?"50

One ingenious suggestion by an economist that FIFA should be listed as a public company on the New York Stock Exchange, so exposing it to shareholder scrutiny of how, for example, 474 FIFA employees last year claimed US $115 million in personal expenses as well as subjecting it to the Foreign Corrupt Practices Act51 and tough NY regulatory laws.

FIFA has cleverly claimed for itself the description of a "victimised institution".52 When civil proceedings for restitution were issued against former officials in a 22-page claim lodged with the US Attorney’s office in New York, the new FIFA President said:

"The defendants diverted this money not just from FIFA but from players, coaches and fans worldwide who benefit from the programmes that FIFA runs to develop and promote football. These dollars were meant to build football fields, not mansions and pools; to buy football kits, not jewelry and cars."

Such corruption within sporting institutions can be distinguished from corruption in relation to sporting outcomes. It is a debatable point whether this kind of corruption is more or less reprehensible than match fixing or concealment of doping violations condoned or even colluded in by officials. Only the latter actually affects competitive results. I do not find the debate illuminating. Both are unacceptable.

The reason for these serial scandals was succinctly summarised by Lord Moynihan, a former Minister for Sport and Chairman of the British Olympic Association as follows:

"… a lack of professional management, accountability, transparency and good governance in the corridors of the world sporting bodies faced with the mandate to run the multi million pound businesses that have grown exponentially over the past 20 years. *I.S.L.R. 9 "

The Association of Summer Olympic Sports (ASOIF) approved a programme incorporating five key principles of transparency, integrity, democracy, sport development and solidarity.53 What is needed is action, not words.

Lack of professional management is important. Too many sports bodies are run by persons with an illustrious sporting pedigree which is not itself any guarantee of executive efficiency; or by persons, who without any real interest in the sport, welcome the prestige and perquisites which come with their membership of the board or council.54 Often they can as a result enjoy lifestyles in their official capacities beyond anything they can enjoy in their private lives—global travel in business or even first class, accommodation in luxury hotels in exotic locations. FIFA’s recent decision to relocate its meetings from the legendary Baur au Lac in Zurich to a mere five star hotel is no more than a token genuflection towards an age of austerity55; a B&B the new accommodation is not. Before sport became a kind of casino, officials were no more competent; but, as one commentator put it, they "tended to be pompous not greedy".56

There is an old saying that a fish rots from the head down; and elections to office within international governing bodies are a breeding ground for corruption. A powerful and long-serving head of a sporting organisation57 retains power by the astute but covert Page10 distribution of favours, if not to the national officials themselves, certainly to their federations. "The sports world", wrote Nick Butler, "often reminds me of a group of noblemen paying homage to a king"58. Conflicts of interest, where national regulators have their own favourite clubs are rife.59 A culture of cronyism and nepotism is as familiar in sport as it is in politics. This is soft corruption.

The death earlier this year of the centurion Joel Havelange, the long-term president of FIFA, finally inculpated of serial corruption in his 98th year, is a powerful reminder of the perils of absolute power. Memorably, when questioned about the revelations, he replied that FIFA was perfect.60 He would have done better to reprise the last words at the end of Billy Wilder’s classic comedy "Some like it Hot". There the transvestite character, played by Jack Lemmon, was trying to discourage the matrimonial intentions of the besotted millionaire by disclosing that he was a man. He was met with the charitable response, "Nobody’s perfect". And Havelange begat Blatter whose appeal against a six-year ban for a "disloyal payment" to Michel Platini was dismissed by CAS which held that it was a gift with no contractual basis—a gift which incidentally coincided with Platini’s decision not to challenge Blatter for the presidency of FIFA.61

Even where there is no corruption, there is conservatism—a reluctance to embrace any reform programme, especially if those asked to implement it would be its first victims.62 It is well known that turkeys, were they enfranchised, would not vote for Christmas.

Happily, the wind of change is blowing through the major institutions on the world stage of sport.63 At its extraordinary session of the FIFA congress held in Zurich in February a number of reforms were agreed involving separation of powers between the policy formers and managers so reducing the potential for conflicts of interest and mirroring best practice from other industries,64 eligibility checks on candidates for office as well as incumbents, and term limits for officials including the President. President Coe of the IAAF initiated a current deep governance review "Time for Change", underpinned by the same principles65 which was overwhelmingly endorsed by the IAAF Congress66 at a special meeting on December 3, 2016.

At the end of the day, such reforming committees although an important mechanism of beneficial change, cannot be the only one. Commercial sponsors have a powerful part to play. Just as their injection of money is so vital to the survival and spread of national and international sport, so its removal or the threat of its removal from sports perceived as corrupt67 could itself provide an incentive to reform as FIFA has already recognised.68

Still more influential in the long run may be the reaction of lovers of sports.69 There is of course a section of the public who will be happy to support their favourite sportsmen or teams whether they bring victory by fair *I.S.L.R. 10 means or foul. But others, more neutral in their affections, may simply lose interest in the result of competitions which they suspect are somehow fixed or in sports tarnished by administrations perceived to be dishonourable. I observed in Rio the at best muted and at worst adverse crowd reaction to the entry of the Russian team to the Maracana Stadium at the opening ceremony and later to the twice-banned US sprinter Justin Gatlin, the putative rival to Usain Bolt. The outcome of the battle for clean sport may rest with the lovers of sports. Let us hope, now that even the Pope has intervened to condemn sporting corruption,70 that it is not a losing one.

The law—and lawyers—have a prominent role to play in the fight for clean sport. But its Page11 processes to be fair have to be thorough. Like the red queen, the untutored sections of the media want immediate decapitation where there’s a wisp of a rumour. The time lines for ethics committees and their associated tribunals and those of journalists avid for news are not in alignment. Journalism and justice are often not on speaking terms.71 But in the long run for those vested with the powers of adjudication,72 it is better to be right than swift.

I end by quoting the words of a distraught fan who learned of the involvement of his hero Shoeless Joe Jackson in the 1919 White Sox scandal: "Say it ain’t so Joe. Say it ain’t so". It is an apt motto for my lecture.

Michael J. Beloff QC

I.S.L.R. 2017, 1, 3-10

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*. Michael J. Beloff holds the degree of MA (Oxon). He has honorary doctorates in law from Fairleigh Dickinson University (NJ USA) and De Montfort University and will receive another from the University of Buckingham on March 18, 2017.

1. This article is based on an annual lecture given at the University of Buckingham where the author is a visiting professor.

2. IAAF Ethics Commission Decision, January 11, 2016. I was President of the Panel.

3. , February 10, 2016, p.3.

4. Brian Radford, Caught Out (John Blake Publishing, 2012), Ch.4.

5. The Spanish police arrested 34 people including six players suspected of match fixing. The players were ranked between 800 and 1,200 in the world, The Times, December 2, 2016. 2016 was "The most prolific year for tennis integrity watchdog", Scott Spits, The Age, January 13, 2017, borrowing the description from the Tennis Integrity Unit’s annual report. There were nine successful prosecutions with five life bans. In 2017 Australian Open Boyas Champion was charged with match fixing by the Victoria police.

6. It has been revealed correspondence between the FA and a House of Commons select committee that there are 70 cases of betting on football informed by insider information under investigation. Betting fraud even infects e-sports: Nick Butler, Inside the Games, "Esports Integrity Coalition launched in London to respond to betting fraud threats", July 5, 2016.

7. "The FA should have stood by its man" Matthew Syed, The Times, September 9, 2016.

8. Orievkov v CAS, 2010/A/1272.

9. See interview with Sir Anthony Hooper, the IAAF investigator for the Shobukova affair, in Law in Sport. January 18, 2016. He is a former Lord Justice of Appeal.

10. See Ben Rumsby, "FA urged to launch corruption inquiry", Daily Telegraph, September 29, 2016, referring, inter alia, to a statement by former Sports Minister, Richard Caborn, to that effect.

11. Interview with David Haggerty, new Head of ITF with Associated Press, March 23, 2015.

12. Lewis and Taylor, Sport Law and Practice, 3rd edn (Thomson Reuters, 2013), p.222.

13. Orievkov, 2010/A/2172 at [80]. The words are mine.

14. "Coe asks more athletes to be whistleblowers on doping", Associated Press, July 7, 2016.

15. Report by British Horse Racing Authority, March 22, 2016 on protection, see Pobeda CAS 2009/A/1920. Page12

16. Tom Serby, "Should the state play a bigger role in tackling corruption in sport", The Times, September 15, 2016.

17. Grobbelaar v News Group Newspapers Ltd [2002] 1 W.L.R. 3025. The House of Lords decided that he was entitled to a nominal award of £1 damages.

18. Damien Collins (acting Chairman of the Commons Select Committee for Culture, Media and Sport), "Football’s rules on cash have to be tightened", Daily Telegraph, September 29, 2016.

19. Interview, March 1, 2016.

20. See fn.18 above.

21. Matthew Syed, "We have to scrutinize paralympians", The Times, September 7, 2016.

22. John Stuart Mill, On Liberty (1859).

23. Keynote address to Australian and New Zealand Sports Association Annual Conference, 15 October 2015.

24. Russia now has a law criminalising doping encouragement, TASS, 22 November 22, 2016. Its enforcement will be watched by the outside world still waiting for Russian admission of past sins in this area.

25. Matt Dickinson, "More athletes than ever are being granted TUEs", The Times, 16 September 2016.

26. Martin Ziegler, "Why top athletes really do suffer more from asthma", The Times, 24 September 2016.

27. USA Today, October 11, 2016.

28. The McLaren report for WADA published on December 9, 2016 on Russian doping "Their desire for medals superseded their collective moral and ethical compass and Olympic values of fair play". The Times, December 10, 2016. On December 26, Russia appeared to concede official involvement in a far reaching doping operation New York Times, December 27, 2016 only to say that the apparently incriminating words of the RUSADA’s acting doping chief had been taken out of context. TASS, December 28, 2016.

29. D. Andre la Gerche "We should stop banning drugs in sport—it doesn’t work", Sydney Morning Herald, 4.1.17e

30. Retesting with new methods adds a deterrent. See Konak v IOC, CAS 2106 A/4746. And it has been suggested that athletic records considered to be achieved by doping should be cancelled. See Christopher Kelsall, "The IAAF should rewrite history", Athletics Weekly, July 8, 2016, though the difficulties of proof are obvious.

31. Associated Press, October 6, 2016. It is now proposed that WADA’s testing function be assigned to a new body and that WADA itself be confined to overseeing regulation, Wall Street Journal, October 8, 2016.

32. Reuters, October 27, 2017. The National Anti-doping organisations (NADOs) have urged a ban on Russian athletes in all competitions and a stripping of the country’s right to stage global tournaments. TASS, January 10, 2017.

33. Rob Harris, Associated Press, November 20, 2016. The package of reforms out for consultation range from compliance and governance to investigations and whistleblowing, New Delhi Times, November 28, 2016.

34. Jeff Novitsky, investigator for numerous steroid investigations including Lance Armstrong, Marion Jones and Billy Bonds, deploys this technique.

35. William J. Kole, Associated Press, November 19, 2016, Athletes using power of selfies to clean sport of drugs—writing about the foundation of Clean Sport Collective, an athlete-run body.

36. Konak v IOC, CAS 2016/A/4746.

37. Martyn Ziegler, "London 2012 drug cheats total hits 61", The Times, November 22, 2016 —and doubtless Page13

rising.

38. Washington Post, November 29, 2016 —it had immediate multiple hits.

39. It is regrettable that Adidas has stopped financial aid to Germany’s anti-doping agency, USA Today, October 12, 2016. The French equivalent faces test cuts of 25% due to a shortage of funds resulting from a government credit freeze, Reuters, November 15, 2016.

40. David Owen, Inside the Games, November 16, 2016.

41. "Man and Superman; in Athletic Competitions; What qualifies as a sporting chance?", New Yorker, September 9, 2013.

42. Catherine Benett, "Cheating in sport is becoming ever harder to judge", The Observer, June 12, 2016.

43. Dutee Chand v IAAF, CAS /2014/A/3759.

44. Paralympians have their own issues. Even Oscar Pistorious, the blade runner, whose sporting career has been brought to an abrupt halt after he killed his girlfriend, claimed at the London Olympics that his conqueror in his class in the Paralympic 400 final had longer blades than his.

45. See the Quest inquiry by Lord Stevens, former Metropolitan Police Commissioner, in 2006 identifying "serious breaches" of the transfer regulations. Question marks hang over such notable football names as Harry Redknapp, Sam Allardyce, Brian Clough and George Graham; in the cases of the last two damning answers appear to have been given—see Matt Dickinson, "Football hit hard but not where it hurts", The Times, September 30, 2016. FIFA’s decision to deregulate agents was a downwards step.

46. See the allegations against Irish IOC member, Patrick Hickey, in respect of the Rio Olympiad.

47. Simon Kuper, "What’s wrong with Sports Officials?", FT Magazine, 20/21 February 2016.

48. Reuters, Septemner 1, 2016. Swiss Open 2006 World Cup criminal case against Beckenbauer.

49. The Guardian, April 6, 2016.

50. BBC4, April 3, 2016.

51. The Times, February 2016.

52. On March 16, 2016.

53. Inside the Games, February 26, 2016. Also a new sport integrity global alliance (SIGA) has been launched. Around the Rings, April 12, 2016.

54. Five former senior postholders in the FA have written to the Parliamentary Select Committee saying that the FA should be stripped of its powers, accusing it of exhibiting "vested interests, intransigence and short termism" compounded by a lack of "an independent, external perspective checks or balances" and a composition of "white elderly men and therefore collectively unrepresentative of English society", Daily Telegraph, December 12, 2016.

55. World Soccer, October 6, 2016.

56. Kuper, "What’s wrong with Sports Officials?", FT Magazine, 20/21 February 2016.

57. Ottavio Cinquanta stepped down as President of the International Skating Union (ISU) after 22 years and two years beyond the ISU’s maximum age limit, Inside the Games, June 13, 2016.

58. Nick Butler, Inside the Games, June 13, 2016.

59. David Davies, former Executive Director of the Football Association, "This kick up the backside is just what football needs", Daily Telegraph, September 29, 2016. Page14

60. Obituary in The Times.

61. CAS media release, December 5, 2016.

62. See fn.35 above.

63. If not universally, see Nick Butler, "To what extent is the politics of sports administration changing?", Inside the Games, May 9, 2015, instancing PASO and LEN; see too Jack Rowland, founder, Trust Sport, "Re-elected unopposed", Play the game, November 30, 2016. More hopefully, European Sport Ministers on November 29, 2016 signed agreements in Budapest aimed at halting, inter alia, game fixing and doping.

64. Explanatory document published by FIFA.

65. For summray, see Sports Integrity initative, November 29, 2016. So too has World Sailing, Liam Morgan, Inside the Games, May 9, 2016.

66. Colourfully described by L’Equipe as "sovietique" in its majority and by Associated Press as of North Korean proprtions, December 4, 2016.

67. Though here too conflicts of interest are patent. Justin Gatlin remains a face of Nike, his selling power presumably outweighing his doping record. Maria Sharapova, only partially redeemed by the CAS decision.

68. Dick Pound, first Chairman of WADA, expressed this view in an interview with the Herald Scotland on April 9, 2016.

69. See the call of arms (not literally), Tom Fordyce, "It’s time to take back our games", The Times RSA, April 13, 2016.

70. US News, October 5, 2016, at a global conference on faith and sport. He was quoted in the Catholic Herald as saying "it would be sad for sport and humanity if people were unable to trust in the truth of sporting result or if cynicism and disenchantment were to drown out enthusiasm or joyful and unselfish participation". President Xi has insisted that the Beijing Winter Olympics must be "clean as snow", Reuters, April 8, 2016.

71. I have pardonably plagiarised my own editorial.

72. Whose standards have to be stricter than those of Inquirers who only report.

© 2018 Sweet & Maxwell and its Contributors

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