“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 allocatio n for RTS and conference funding

i Protecting Sports Integrity: Sport corruption strategies CATHERINE ORDWAY

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

ii Protecting Sports Integrity: Sport corruption strategies CATHERINE ORDWAY

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 (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

iv Protecting Sports Integrity: Sport corruption strategies CATHERINE ORDWAY

Publication #9: Ordway, C. (2014). Why this Australian Supported 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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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. : 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 , and, like me, my mum played A-Grade and representative 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 courts with my brother, Ben. My Dad, Bill, brought home our first colour TV in time for the opening ceremony of the 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)

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

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 (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

viii Protecting Sports Integrity: Sport corruption strategies CATHERINE ORDWAY

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, , 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.

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

1 “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-making ii. 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 frameworks vi. Early warning systems vii. Whistleblowing and reporting systems viii. Integrity units, officials and networks ix. Legislation and the role of penal measures x. 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 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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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

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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 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.

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‘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

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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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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 educational value of good example, social responsibility and respect for universal fundamental ethical principles 4. . . . Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical 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

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• 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.

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• fair and honest performances and outcomes, unaffected by illegitimate enhancements or external interests; and • positive conduct by athletes, administrators, officials, supporters and other stakeholders, on and off the sporting arena, which enhances the reputation and standing of the sporting contest and of sport overall. (Australian Government 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 Protection b) Drugs c) Ethical Sponsorship and Advertising d) Match-Fixing and Illegal Sports Betting e) Sexuality and Gender Perspectives on Sports Ethics f) 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 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.

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

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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).

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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 (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 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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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

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(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

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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 Hart Publishing • Publication #3: Ordway, C. (unpublished). Journal Article. [Manuscript ready to be published] • Publication #4: Ordway, C. (2013(a)). Journal Article. Published in the ANZSLA Commentator 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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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 material dealing with current topics of interest to professionals, academics and sports administrators. • Articles to be of a high standard demonstrating thought and intellectual rigor in the manner in which current issues are addressed by the author. • The material is to consist of professionally orientated Commentator style articles 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 ; Max Duthie, sports law lecturer, University of 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

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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 ; 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.)

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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.

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37 PUBLICATION #1

CRITICAL ISSUES IN GLOBAL SPORT MANAGEMENT

The social, cultural and economic significance of sport has never been more evident than it is today. Adopting a critical management perspective, this book examines 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 to understand the changing face of the global sport industry. Written by leading international sport management experts, Critical Issues in Global Sport Management includes twenty chapters and real-life case studies from around the world. It examines contemporary governance and management issues as well as the ethical challenges faced by the global sport industry, including questions of integrity and accountability in recent drug scandals that have been widely 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 and innovative 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, sport business, sport development or sport events.

Nico Schulenkorf is Senior Lecturer for Sport Management at the UTS Business School, Sydney, Australia. His research focuses on the social, cultural and health- related outcomes of sport-for-development and event management projects. Nico has worked with local and international NGOs, Government Agencies, Sport Associations and Ministries in developing capacities to implement development projects in countries such as , Israel/Palestine and the Pacific Islands. Nico is co-editor of Global Sport-for-Development: Critical Perspectives (Palgrave, 2014) and Managing Sport Development: An International Approach (Routledge, 2016). He is also co-founder and editor of the Journal of Sport for Development.

38 Stephen Frawley is the Director of the Australian Centre for Olympic Studies at the 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 and is the editor of Managing the Olympics, Managing the Football World Cup and Managing Sport Mega-Events. Stephen’s academic work is informed by his experience working on 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 to the Melbourne 2006 Organising Committee.

39 CRITICAL ISSUES IN GLOBAL SPORT MANAGEMENT

Edited by Nico Schulenkorf and Stephen Frawley

40 First published 2017 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

© 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 Data A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data Names: 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 Bembo by Fish Books Ltd.

41 Nico – to Anja and Henry Stephen – to Tanya, Tara and Alanna

42 43 CONTENTS

List of figures x List of tables xi List of contributors xii Acknowledgements xxii

1 Critical issues in global sport 1 Nico Schulenkorf and Stephen Frawley

PART 1 Governance, integrity and welfare 7

2 Governance, CSR and diversity: a critical field of study in global sport management 9 Johanna A. Adriaanse, Sarah Cobourn and Stephen Frawley

3 Gender diversity in the governance of international sport federations 23 Johanna A. Adriaanse

4 Integrity and corruption in sport 38 Catherine Ordway and Hayden Opie

5 Match-fixing and manipulation in sport 64 Markus Breuer and Sebastian Kaiser

44 viii Contents

6 Doping control and global sport 77 Jules R. Woolf

7 Head injuries and concussion issues 93 Annette Greenhow and Lisa Gowthorp

PART 2 Globalisation 113

8 Globalisation and professional sport 115 Geoff Dickson and João M.C. Malaia Santos

9 Socio-economic impacts of sports mega-events: more unintended than intended? 128 Wolfram Manzenreiter and John Horne

10 Social media, fan engagement and global sport 141 Olan Scott, Michael Naylor and Katherine Bruffy

11 Managing football hooliganism 152 Joel Rookwood

12 Farewell to the hooligan? Modern developments in football crowd management 164 Geoff Pearson and Clifford Stott

13 Global sport-for-development 176 Nico Schulenkorf, Emma Sherry and Katie Rowe

14 Sport and international diplomacy 192 Robert E. Baker and Pamela H. Baker

PART 3 Technology and social media 203

15 Analytics, technology and high-performance sport 205 Bill Gerrard

16 A general theory of the use of technology in sport and some consequences 219 Harry Collins and Robert Evans

45 Contents ix

17 The tyranny of perpetual innovation: global mobile media, digital communications and television 238 Brett Hutchins and David Rowe

18 Social media analytics for sport management: pitfalls, tools and best practices 252 Larena Hoeber and Orland Hoeber

19 Digital technology and sport sponsorship 266 Christopher Rumpf and Christoph Breuer

20 Current trends and future research challenges in global sport management 278 Stephen Frawley and Nico Schulenkorf

Index 286

46 FIGURES

2.1 Integrated research model of sport governance 14 5.1 Overview of match-fixing 66 5.2 Timeline for match-fixing induced by investors 72 13.1 Article title word cloud (top 50 condensed words) 180 13.2 Year of publication by number of articles 181 13.3 Thematic areas 182 13.4 Researcher location (by continent) 183 13.5 Location of research (by continent) 183 13.6 Research methodology 185 18.1 Temporal distributions of all of the tweets for the event (including two days before and two days after) 259 18.2 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 260 18.3 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 1 268 19.2 Image of EEG data recording 269 19.3 Image of digital overlays in the Dutch Football League 272

47 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 82 6.2 WADA international standards 85 6.3 WADA spirit of sport criteria 88 13.1 Forms of literature analysis 177 13.2 Inclusion/exclusion criteria 179 13.3 Top 10 journal outlets 181 13.4 Researchers and research sites (greater than five publications) 184 13.5 Sport activity 185 14.1 Sample itinerary for a program with athletes and coaches 197 16.1 Classification of capture devices 220 16.2 Analysis of 535 English Premiership matches out of the 2,280 played over three seasons 231 16.3 How TV-replays could be used in football 232

48 CONTRIBUTORS

Johanna A. Adriaanse is Senior Lecturer in the Business School at the University of Technology, Sydney, and a member of the University’s Centre for Corporate Governance. Her area of interest and expertise focuses on investigating the relation ship between gender and sport. Currently, she is conducting research on gender dynamics in the governance of sport organisations globally. She has published her work in prestigious academic journals including the Journal of Sport Management, Sport Management Review, and the Journal of Business Ethics. In addition, Johanna is a strong public advocate for women, sport, and gender equality. She has completed projects with UN Women in New York, served as the co-chair for the International Working Group on Women and Sport (IWG) from 2006 to 2014, and given presentations at conferences all over the world. She obtained her Ph.D. and master of education at the University of Sydney after completing her bachelor of education (Physical Education) and bachelor of psychology in Amsterdam.

Pamela H. Baker is an Associate Professor of Special Education and Director of the Division of Special Education and Disability Research at George Mason Univer- sity. She earned her doctorate in leadership studies from Green State University, and her M.Ed. and B.S. from the College of William and Mary. In addition to numerous presentations and publications, Dr. Baker has served as an investigator on a variety of state and federal grants to support teacher preparation and sport diplomacy projects with funding in excess of US $8.7 million dollars. She is 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 Management and Division of Sport Recreation and Tourism at George Mason University. He earned his doctorate from the College of William and Mary, and his M.S. and B.S.

49 Contributors xiii from Pennsylvania State University. He has served as President of the North American Society for Sport Management, as a founding commissioner of the Commission on Sport Management Accreditation, and a founding board member of the World Association of Sport Management. Dr. Baker received NASSM’s 2010 Distin guished Sport Management Educator Award and NASPE’s 2011 Out - standing Achievement in Sport Management Award. In addition to publishing numerous books and articles, Dr. Baker has served as the principal investigator on several grants to support sport diplomacy projects totalling U.S. $6 million. He is currently involved in a cooperative agreement with the U.S. Department of State’s Sports 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 of viability of sport organisations, and measuring the economic value of sport sponsoring. His work has been published extensively.

Markus Breuer is the Dean of the M.A. Sport Management program at the SRH University Heidelberg, Germany. After graduation in business administration and economics in Braunschweig and Chemnitz, Professor Breuer received a Ph.D. in Sport Economics from the University of Jena. From 2011 to 2014, he joined the KPMG transfer-pricing office in Hamburg. He obtained his master’s degree in international taxation from the University of Hamburg in 2014. Professor Breuer lectures regularly at various local and foreign universities and presents his latest research findings at international conferences.

Katherine Bruffy is a Lecturer of Sport Management and Programme Leader in the Department of Sport at Unitec Institute of Technology, , New Zealand. Katie’s passion for sport began as a youth swimmer and continued through her time as a collegiate synchronised swimmer. She began teaching in higher education in 2006 at Ohio State University, where she also earned her Ph.D. researching sport nostalgia. Particular research areas of interest include: sport marketing, consumer behaviour, governance and sport development. Katie has worked within these research areas as a consultant for the Skycity Breakers Basketball Team, Auckland Mystics Netball Team, and Auckland Cricket.

Sarah Cobourn (originally from Toronto) is the Senior Officer of Corporate Social Responsibility (CSR) at Hitachi. Sarah completed a Ph.D. focused on Creating Shared Value in professional sport at the University of Technology Sydney (UTS). Sarah continues her research through the Australian Centre for Olympic Studies at UTS Business School. Previously, she has worked as a con - sult ant, working with organisations across Australia, North America and the United Kingdom to develop innovative policies and programmes that create shared economic and societal value. Sarah also holds a bachelor’s degree in

50 xiv Contributors science from Western University (Canada) and a master’s in sport management from Bond University (Australia).

Harry Collins is Distinguished Research Professor and Directs the Centre for the Study of Knowledge, Expertise and Science at Cardiff University. He is an elected Fellow of the British Academy and a winner of the Bernal prize for social studies of 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 research on the sociology of gravitational wave detection, expertise, fringe science, science and democracy, technology in sport, and a new technique—‘the Imitation Game’ – for exploring expertise and comparing the extent to which minority groups are integrated 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 from Griffith University. In between degrees, Geoff was General Manager of the Coorparoo Australian Football Club in Brisbane. He began his academic career in 1996 at Central Queensland University. In 2004, Geoff moved from Australia to New Zealand to work at Auckland University of Technology as a director of Gymsports New Zealand and Tennis North Harbour. He is currently Chair of AFL New Zealand and President of the Sport Management Association of Australia and New 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 has presented 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 of the influential ‘Third Wave of Science Studies’ paper (Social Studies of Science, 2002) and Rethinking Expertise (University of Chicago Press, 2007). His current work has two main elements. The first continues to refine and extend the theory of expertise that underpins the Third Wave programme in STS. The second focuses on 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 and provides a means by which its distribution can be measured and its content explored 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

51 Contributors xv

Managing the Football World Cup (Palgrave Macmillan). Stephen has significant experience working in sport having worked in the Sport Division for the Sydney 2000 Olympic and Paralympic Games from 1998 to 2001.

Bill Gerrard is an economics graduate of the University of Aberdeen and Trinity College, Cambridge, and received his doctorate from the University of York. He is currently Professor of Business and Sports Analytics at Leeds University Business School. Bill has published academic papers in sport management on the football transfer market, measuring team quality, coaching efficiency, stadium naming rights, and the sporting and financial performance of pro sports teams. He is a former editor of the European Sport Management Quarterly. Bill holds the UEFA B football coaching licence. In recent years, his work has mainly focused on the development of coach-led analytics. He was the technical analyst for Saracens () from 2010 to 2015. Bill has also provided statistical analysis to support the Sky Sports coverage of (). Bill has worked with several U.K. and Dutch football clubs, an team, a South African Super 15 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 such as the NSW Institute of Sport, the Australian Institute of Sport (AIS), and Australian Canoeing. Lisa has managed teams at the World Championships and was the gymnastics section manager on the Australian Olympic Team in in 2008. Lisa’s research interests include the governance and management of the Australian high-performance sport system, especially government involvement in elite sport, sport governance and regulation, high-performance sport management issues, and contemporary issues surrounding the Olympic Games. She regularly consults with industry on governance issues and sport policy. Lisa is also the Secretary-General of the Sliding Sports Australia (SSA), working towards the development and implementation of good governance practices and procedures for this new Olympic NSO.

Annette Greenhow is an Assistant Professor in the Faculty of Law at Bond University, having joined the faculty in 1996 as an adjunct during her private legal practice career. She is now a full-time member of the faculty and teaches Global Sports 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 the Australian football codes to concussion management at the elite levels. Annette has authored and co-authored publications on sports-related concussion and has delivered presentations on this topic at national and international conferences since 2011. She has a keen interest in understanding the interdisciplinary perspectives on sports-related concussion and contributing to the design and of sustainable concussion management solutions for a broad range of stakeholders.

52 xvi Contributors

Larena Hoeber earned her Ph.D. in sport management from the University of British Columbia. She is an Associate Professor in the Faculty of Kinesiology and Health Studies at the University of Regina. Her research interests include gender issues in sport, use of innovative research methods, organisational culture, and amateur sport organisations. She teaches in the areas of sport management and mark eting, sociology of sport, volunteer management, and qualitative research methods. She has published her research in the Journal of Sport Management; Sport Management Review; European Sport Management Quarterly; Gender, Work and Organisation; Qualitative Research in Sport, Exercise and Health; International Journal of Sport Management and Marketing; and Sex Roles.

Orland Hoeber received his Ph.D. in computer science from the University of Regina (Canada) in 2007. After five years at Memorial University (Canada), he returned to the University of Regina as an Associate Professor in 2012. His primary research interests are in the domains of information visualisation, visual analytics, mobile computing, social media analytics, the process of innovation, and the 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 Natural Sciences and Engineering Research Council of Canada and the Social Sciences and Humanities Research Council of Canada.

John Horne is Professor of Sport and Sociology at the University of Central Lancashire, Preston, U.K. He is a Fellow of the Academy of Social Sciences (FAcSS), Vice-Chair of the British Sociological Association, and Vice-President of the International Sociology of Sport Association. His research interests include sport, leisure, and globalisation; the socio-cultural, political, and economic impacts of sports mega-events; sport and social theory; and consumer culture. He is the author, 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 Changing World Order (2016), Routledge; Sport and Social Movements (2014), Bloomsbury Academic; Understanding Sport (2nd ed., 2013), Routledge; Sport in Consumer Culture (2006), Palgrave; Sports Mega-Events (2006), Blackwell; Football Goes East: Business Culture and the People’s Game in , 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 Associate Professor in the School of Media, Film and Journalism at Monash University in Melbourne, Australia. His Fellowship project, ‘The Mobile Media Sport Moment: Markets, Technologies, Power’ (http://artsonline.monash.edu.au/mobilemedia sport/), investigates how smartphones, tablet computers, and mobile com muni- cations are transforming the production and circulation of sport content around the globe. Brett’s latest journal articles appear in Convergence, International Communication Gazette, Telematics and Informatics and Journal of Sport and Social Issues.

53 Contributors xvii

His books include Digital Media Sport: Technology, Power and Culture in the Network Society (co-edited with David Rowe, 2013), Routledge; and Sport Beyond Television: The Internet, Digital Media and the Rise of Networked Media Sport (co-authored with David Rowe, 2012), Routledge. He is also the co-editor of a recent special issue of the journal, Media International Australia, on ‘Media Sport: Practice, Culture and Innovation’ (No. 155, May 2015).

Sebastian Kaiser holds a Chair of Business Administration, particularly sport management, at Heilbronn University, Germany. Sebastian graduated at German Sport University Cologne and received a Ph.D. in sport economics (2005). He is Section 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 sport manage ment. Sebastian lectures regularly at various international universities and is an international professor at the Russian International Olympic University in Sochi.

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. His research is concerned with the social and anthropological aspects of sports, emotions, work and migration in a globalising world. He is author of several books and numerous articles and book chapters mainly on sport, leisure, popular culture, and social issues in contemporary Japan. As a scholar of globalisation, his research also extends into the larger East Asian region and the transnational networks of the Japanese diaspora. Book publications of note include Sport and Body Politics in Japan (2014), Routledge; and the co-edited volumes on Migration and Development; New Perspectives (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 Auckland University of Technology in New Zealand. Born in Toronto, Canada, Michael also spent time in the United States as both a practitioner and scholar in the sport industry. His research interests include sport marketing, consumer psychology, and social media. The projects he undertakes are based in a variety of participant and supporter contexts around the world.

Hayden Opie is the Director of Studies, Sports Law Programme, Melbourne Law School, the University of Melbourne. Hayden pursues research and teaching interests in all areas of sports law and is recognised internationally for his work in the field, especially in regard to sports integrity. He has been researching and writing on legal aspects of anti-doping since 1987 and has served on various committees and advisory boards in the anti-doping field. He is the founding

54 xviii Contributors

President of the Australian and New Zealand Sports Law Association and served as a legal member of the Australian government’s Anti-Doping Rule Violation Panel from 2010 to 2015. He is a member of the Court of Arbitration for Sport. Hayden teaches the master’s-level subject, ‘Sports Integrity and Investigations’, with Catherine Ordway on the Melbourne Sports Law Programme.

Catherine Ordway is currently Professor of Practice (Sports Management), La Trobe University and Senior Fellow, Melbourne Law School, the University of Melbourne. Catherine holds a bachelor of arts in jurisprudence and law degree from the University of Adelaide, a Graduate Diploma of Legal Practice from the University of South Australia, and a Graduate Diploma in Investigations Manage - ment from Charles Sturt University. She is internationally recognised for her work in the field of regulatory review in international sport integrity. Catherine is also a member of the Australian and New Zealand Sports Law Association (ANZSLA) and acted for the Australian Olympic Committee in the lead up to the Sydney 2000 Olympic Games. Catherine lectures at the master’s level in sports law and sports management subjects at La Trobe University (risk management), at the Univer 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 currently completing her Ph.D. in governance, leadership, and sports integrity.

Geoff Pearson is Senior Lecturer in criminal law at the University of Manchester in the United Kingdom. He has utilised ethnographic research to research football fan behaviour and the impact of legal and policing responses on football crowds since 1995, approaching the subject from a socio-legal and human rights perspect - ive. He has been engaged in research, consultancy and police training on football crowd 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 2003 and 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 in Sport Management at the University of Vic, Spain. He studied football science at the undergraduate level and earned master’s degrees in performance analysis and sport management, before being awarded a Ph.D. for his thesis entitled ‘Fan perspectives of football hooliganism’ at the University of Liverpool’s Manage ment School 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

55 Contributors xix countries spanning six continents. He reported on and conducted research at the 2002, 2006, 2010, and 2014 World Cups; the 2004, 2008, and 2012 European Championships; 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 and social identity.

David Rowe is Professor of Cultural Research, Institute for Culture and Society, University of Western Sydney and Honorary Professor, Faculty of Humanities and Social Sciences, University of Bath. His books include Popular Cultures: Rock Music, Sport and the Politics of Pleasure (1995); Globalization and Sport: Playing the World (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 Cultural Citizenship: Signal Lost? (co-edited with Jay Scherer, 2014). His work has been translated into several languages, including Chinese, French, Turkish, Spanish, Italian and Arabic. In the specific field of sport management, Professor Rowe has published in International Journal of Sport Management and Marketing, Australasian Leisure Management, and European Sport Management Quarterly; and delivered a Keynote Address to the 2005 Sport Management Association of Australia and New 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, and Sport Practicum. She completed her Ph.D. studies in 2013 with focus on women’s cycling participation in Australia. Katie’s research interests include sport and recreation participation, women’s engagement in sport, and the ways in which sport 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 sports such 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 both nationally and internationally.

Christopher Rumpf researches and teaches in the field of sport management and sport marketing at the German Sport University, Cologne. His current studies explore the impact of colour and animation on sponsorship outcomes and the affective and behavioural response to sport marketing activities. His articles have appeared in the Journal of Sport Management, Psychology and Marketing, and Marketing Review St. Gallen, among others.

João M.C. Malaia Santos has a bachelor’s degree in history and a doctorate in economic history from University of São Paulo (USP), Brazil. He began his academic career in 2010 at University of Rio de Janeiro (UFRJ), where he

56 xx Contributors developed his post doctoral research on international sports competitions hosted in Brazil (1919−2016). João is currently director of São José Rugby Club and works on the master’s programme in sports management at the University Nove de Julho (São Paulo, Brazil). João’s research interests focus on organisational theory, critical management, international relations, history of sport, sociology of sport, and sports economics. In 2015, he was a commentator for ESPN Brazil’s coverage of the Rugby World Cup.

Nico Schulenkorf is Senior Lecturer for Sport Management at the University of Technology, Sydney (UTS). His research focuses on the social, cultural, and health- related outcomes of sport-for-development and event-management projects. He is particularly interested in the role of sport as a vehicle for sustainable development and 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 is co-founder and editor of the Journal of Sport for Development and serves on the editorial 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 for Sport and Social Impact, specialising in the area of sport development. Emma has com pleted a bachelor of arts at the University of Melbourne and a masters of business (Sport Management) and a Ph.D. at Deakin University. Emma’s Ph.D. studies investigated conflict of interest in the Australian Football League. Her current research interests include community development through sport activities, under taking a broad range of research projects with national and regional sport organi sations in Australia and Oceania, including Netball Australia, , Australian Football League, and Tennis Australia. Additional research areas include access and equity in sport participation, and sport and recreation for at-risk and marginalised communities. Emma is currently supervising a number of Ph.D. students in the areas of sport-for-development in India and with refugee communities, para-sport athlete wellbeing, and elite athlete career transition.

Olan Scott is an Assistant Professor in Sport Management at University of Canberra. His research into sport media particularly focuses on the mainstream media and fan engagement in social media. Dr. Scott is heavily involved in industry-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 for audience 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

57 Contributors xxi bodies, teams, and players interact with the paying public to build their loyalty base. Understanding and improving the way the industry approaches and engages fans offers 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 the 2011 English ‘riots’. He works regularly with police forces, governments, and football authorities across the world and is widely recognised as a global expert in his 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, his work was acknowledged by the ESRC as one of its ‘Top 50’ achievements in its 50-year history. His research underpins recent human-rights-based reforms of public order policing in the United Kingdom, , Denmark and Queensland, Australia.

Jules R. Woolf is an Assistant Professor at Adelphi University in the Department of Exercise Science, Health Studies, Physical Education and Sport Management. He completed his Ph.D. in Sport Management at the University of Texas at Austin where he also earned a master’s degree in exercise physiology. His multidisciplinary background informs his practice as he attempts to combine his research training in physiology, management, and communications. His research interests involve the ways in which institutional and organisational forces impact the nexus between sport and health. In essence, he is interested in the ways that sport is managed to promote positive and avoid negative health outcomes. A main focus of his research examines doping in sport. His research has been published in the Journal of Sport Management, International Journal of Sport Policy and Politics and the British Journal of Sports Medicine, among others.

58 ACKNOWLEDGEMENTS

This book was conceived with the assistance of several people. From within the global 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 for sharing 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 driven yet accessible and relevant for a wide audience of students, academics, and practi- tioners of sport management. Each of the contributing authors has honoured our intent; we thank them for their collegiality and enthusiasm in achieving that research goal. We also wanted to ensure the overall quality of the book and subjected all chapters to rigorous editorial feedback. We believe that this approach has been important to secure coherence and continuity in the development of different concepts and issues presented in the book. We especially thank Dr Natasha Black for her outstanding editorial advice. We also wish to acknowledge the encouragement and professionalism of the Taylor and Francis editorial team: Simon Whitmore (Senior Commissioning Editor), William Bailey (Editorial Assistant), and Cecily Davey (Editorial Assistant). Finally, and perhaps most importantly, we like to express our love and gratitude to Anja, Henry, Tanya, Tara and Alanna who cheered from the sidelines as this book evolved.

59 4 INTEGRITY AND CORRUPTION IN SPORT

Catherine Ordway and Hayden Opie

Sport looms large in the lives of many people around the world. With the practice of sport comes the many pleasures and rewards of physical exercise, feats of athletic skill, competition and contest, self-esteem, social connection and entertaining spectacle. 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 Olympic Committee (IOC), 2015; World Anti-Doping Agency (WADA), 2015). Specific examples of those values grouped under the label of sportsmanship include teamwork and team spirit, playing earnestly and never giving up, accepting the umpires’ 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 bute to a collective love of sport for both participants and spectators (for a summary of research on participant motivation and behaviour, see Sport Participation in Australia; Richards and Murphy, 2015). In significant measure, they underpin the ongoing support that governments and commercial enterprises of many kinds show for the development of sport. However, over the past few decades, dark clouds have begun to dim this shining vision of sport. From doping by famous athletes to the misappropriation of funds at the highest levels of international sports organisations, such clouds are considered threats 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 Committee said, ‘We have made doping a top priority, and now there is a new danger coming up 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 of the Tour de France, Lance Armstrong, attracted worldwide attention. As a supreme

60 Integrity and corruption in sport 39 athlete, cancer survivor, and philanthropist, Armstrong was an inspiration to many. He encapsulated so well the values associated with sport. When Armstrong was revealed 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 was Armstrong’s reputation severely damaged, but so was that of his sport. Other international superstar athletes who have been caught doping have included Ben Johnson (Dubin, 1990) and Marion Jones (Shipley, 2007). Doping has not only been at the initiative of individual athletes. Through the 1970s and 1980s, the East German government maintained an extensive and hugely successful doping programme across many sports in an effort to prove to the world the superiority of its political and social system (Franke and Berendonk, 1997; Ungerleider, 2001). In Australia, an unresolved doping scandal, now in its third year, has raged around the 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 values of sport (e.g., Lumpkin, 1983). Not only are athletes disgraced as ‘cheats’, but suspicion of doping falls on other winning performances via the unproven sug - gestion that a victory could not have been achieved, or a record broken, without doping. Athletes disinclined to dope come under pressure to do so because they come 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 increasingly stringent rules against doping can sweep up athletes who have unwittingly consumed a prohibited substance and it becomes very difficult for at least some of them to avoid an undeserved ‘disgraced drug cheat’ epitaph to their sporting careers. There have been some notorious instances of fixing the outcome of a sporting competition or some event within it in return for payment. Fixing is commonly associated 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 famous Major League (MLB) team the Chicago White Sox, whose players were alleged 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, the larger-than-life figure Judge Kenesaw Mountain Landis. The heavily favoured Chicago White Sox lost the 1919 World Series to the Cincinnati Reds. Although the eight accused players were acquitted of criminal charges by a jury (the confessions of three of them had vanished mysteriously), Commissioner Landis placed all of them on the permanently ineligible list which amounted to a life ban (Sigmund, 2004). More recently, major incidents have included scandals in German (Harding, 2005), English cricket,1 rugby league in New South Wales (Massoud, 2014),2 and association football in Victoria,3 resulting in criminal convictions and substantial or life bans for some of those involved. The integrity of the governance of the world’s largest sports federation, the Fédération Internationale de Football Association (FIFA), has been called into question with ongoing controversy over whether the decisions to award the

61 40 Ordway and Opie hosting rights for the 2018 and 2022 World Cups to and , 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 the Americas have been detained in Switzerland with a view to their extradition to the United States to face serious criminal charges relating to commercial dealings in football (‘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 understand exactly what the term means and what safeguards and responses protection involves. That is the purpose of this chapter, which will commence with an analysis of the meaning of the terms integrity of sport, corruption, doping, match-fixing and sports betting. In the second part of the chapter, strategies originating from beyond sport will be drawn upon to identify and explain possible risk countermeasures and miti- gation solutions. These range from good governance practices through intelligence-gathering and enhancement of athlete welfare to disciplinary and penal measures. It is intended that practitioners and students of sports adminis- tration will be able employ an understanding of these terms and strategies to promote 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 international understanding of their meanings. It is also often believed that the behaviour they reflect is of recent origin. Neither is accurate. However, the scale of occurrence, public attention, and regulatory responses linked to that behaviour are now unprecedented. Commensurate with the human values found, taught, and reinforced through sport, it is suggested that attaining and maintaining a state of integrity should be the aspiration of athletes, sports administrators, and sports organisations alike. What then 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. the state of being whole, entire, or undiminished 3. sound, unimpaired or perfect condition’ (‘Integrity’, 2001, p. 984). These meanings can be applied to sport in the sense that the audience is entitled to rely on the outcome of a match or competition on the basis that it has been played 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

62 Integrity and corruption in sport 41 participate in it. This provides a normative, formal, or rule-based definition of the integrity of a sporting competition. Reliance on that rule-based approach can present difficulty in some commonly encountered circumstances. Should a batter in cricket who has lightly glanced the ball into the hands of the wicketkeeper ‘walk’ or await the call of the umpire who may not have observed the snick? Is it acceptable to not try as hard to win as one might in order not to risk injury or to preserve energy for a later stage of a competition? Furthermore, is it acceptable to deliberately lose so as not to meet a strong opponent in the next phase of a tournament or to gain a favourable selection in an end-of-season draft for uncontracted players in a professional league? In the sport of , it has been known for leading wrestlers to intention- ally lose to young, inexperienced opponents so they may have a share of winnings and help build their fledgling careers. In each of these circumstances, the formal rules may not be broken, but is there a lack of integrity? If so, in which ones and why? The Australian Sports Commission (ASC, n.d.) expands on this rule-based approach by defining integrity as ‘the integration of outward actions and inner values’ (ASC, n.d., para. 1), and a sport as having integrity where it remains ‘true to its values, principles and rules’ (ASC, n.d., para. 6). By introducing principles and values, more reference points become available to determine the integrity of particular behaviour. The standards thereby reached may not result in sanctions under 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 treat an injured player) or simply attract the disapproval of fellow participants and spectators. These customary standards may evolve into formal rules of the sport. For sports administrators and sports organisations, the attainment of integrity applies to behaviour principally off the field of play. Compliance with established constitutions and rules governing the sport’s organisation as well as respecting the laws 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 organisation to 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 to place their trust in the organisation with justifiable confidence. A dilemma may arise for an organisation whose mission is to protect the integrity of sport. Is it consistent with integrity to engage in ‘sharp practice’ or employ arguably unethical (but not illegal) measures so as to disrupt or successfully prosecute behaviour which breaches 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 sports organisations off the field of play which lack integrity are often considered under the rubric of ‘corruption’. This term will now be examined.

63 42 Ordway and Opie

Corruption The Macquarie Dictionary provides the following definition of corrupt: ‘Corrupt (adjective): 1. dishonest; without integrity; guilty of dishonesty, especially involving bribery; a corrupt judge 2. debased in character; depraved; perverted; wicked; evil’ (‘Corrupt’, 2001). Transparency International (n.d.), a respected watchdog of govern ment and business behaviour worldwide, defines corruption as ‘the abuse of entrusted power for private gain’ (‘How Do You Define Corruption?’ section). The United Nations Convention against Corruption describes corruption in these terms:

Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized 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 practical matter to impress on athletes and sports administrators that corruption in sport is wrong and that a path of integrity should be followed. In sport, corruption has been identified as relating to money, power, status and privilege (Unger, 2015). It is usually found in sports organisations in connection with commercial activities such as broadcasting and sponsorship deals and the allocation of hosting rights to major events. In the field of organisational govern - ance, corruption typically raises its head in the rigging of elections, making grants for facilities and development programmes and in patronage and kickbacks to friends and allies of those in power.

Doping The World Anti-Doping Code creates ten categories of anti-doping offence which are known as ‘violations’. These include the use of prohibited substances or doping methods, the possession or trafficking in prohibited substances and refusing to undergo testing (WADA 2015).5

Match-fixing A number of terms have been used to describe the phenomenon of improperly influencing the outcome of a sporting contest or the happening of some element within it. These include match-fixing and spot fixing, manipulation (Council of Europe, 2014) and sporting fraud (Legal India, 2013). Match-fixing and spot fixing will be used here.

64 Integrity and corruption in sport 43

Match-fixing involves a lack of sporting integrity. Not only might it be contrary to 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 circumstance that some instances of ‘match-fixing’ may not be regarded as wrongful if done for some strategic or tactical sporting reasons.6 Other forms of match-fixing may contra vene the rules of sport, but not the criminal law. The criminal law is more likely 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 personal benefit’ (p. 99). Carpenter (2013) described match-fixing as ‘a dishonest activity by participants, team officials, match officials or other interested parties to ensure a specific outcome in a particular sporting match or event for competitive advantage and/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 or contingency within a sporting competition. That might include the time and rate of scoring, the score at certain times, the occurrence of particular events such as who 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 a particular player or team. The instigator of the fix may offer the corrupted individual or team a bribe in the form of payment of money or some favour, such as career advancement or access to prostitutes. Particularly in the case of individuals, the corrupting request may follow a period of ‘grooming’. The term grooming here is used in the same way as criminologists describe sexual predators incrementally gaining the trust of their potential victims in child abuse cases (Salter, 2003). In the sports setting, organised criminals, or former athletes, attempt to create friendship bonds with vulnerable players. They seek to attend the same social venues, and provide gifts such as alcohol, prostitutes, and gambling accounts before requesting information about playing conditions and coaching strategies which can be used as a form of gambling insider trading.7 Additionally or separately, the corrupted individual may be blackmailed by threats of violence or the prospect of exposure of some indiscretion, such as using banned doping agents or illicit drugs which might have been supplied by the instigator in the first place.8 The prospects for links to 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 instances where a participant might bribe an opponent so that the instigator may progress in the competition. It is the explosion in Internet-based sports betting (to which national borders offer only modest impediment) that poses the most significant threat to the integrity of sport: ‘The danger is that from illegal betting comes match-fixing, and you see more … attempts to manipulate matches. It is as dangerous as doping for the credibility of sport. It’s only the beginning of a huge battle’ (Lane, 2011, p. 9).

65 44 Ordway and Opie

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 its forms, while others allow some betting and in yet others many types of betting are available. Both Australia and the United Kingdom have relatively unrestricted sports betting opportunities, while in China, India and the United States, sports betting is either illegal or heavily constrained (P. M. Anderson, Blackshaw, Siek- mann and Soek, 2012). Whether sports betting should be lawful and, if lawful, how much betting and under which circumstances it should be permitted remain contested social issues globally. However, it is suggested that lawful sports betting should not in isolation be regarded as a sports integrity issue. In countries where sports betting is lawful, it may be either extensively or lightly regulated. Grey markets is a term that refers to lightly regulated betting markets because it becomes difficult to trace bets and establish the bona fide of either or both gamblers and betting service providers, despite a level of regulation. Black (illegal) and grey sports betting markets are believed to offer greater prospects for betting participants to be linked to match-fixing, money laundering, and organised criminal activities. The Internet is progressively breaking down national regulatory approaches to sports betting with those willing to use Internet-based grey and black market operators finding it relatively easy 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 Leagues Have More Match-Fixing than Others’, leading academic and investigative journalist 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 in a 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, combined with situations of relative deprivation and expectations of corruption, that lead 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 to the micro-conditions inside individual clubs or sports to make them more resistant to corrupt practices.

66 Integrity and corruption in sport 45

Leadership: ethical decision-making The basic premise in looking to leadership to reduce the risk of corruption is that although the most robust structures can be set in place (and some of them will be referred to below), if the people entrusted with the stewardship of the organisation are open to – or actively engaged in – corrupt practices, then corruption within the organisation will thrive. The influence of leaders in setting the culture of an organisation, both positively and negatively, has been researched extensively (Duggar, 2009). In its report, Safe Hands: Building Integrity and Transparency at FIFA, Transparency International (2011) observed that if sports, such as football, are perceived to be led by a culture of corruption, then they will, in turn, have a higher probability of threats to their integrity.9 Corrupt leaders will set the tone for the organisation, and demonstrate that cheating and other corrupt practices are not only condoned, but might be actively encouraged.10 On the other hand, it is thought that negative, self-motivated or other corrupt practices are extremely unlikely to be instigated or permitted by leaders with integrity. This effect increases when the leader is positioned higher on the ladder of authority. One of the leading anti-corruption think tanks, the Australian Commission for Law Enforcement Integrity (ACLEI, n.d.-b), recognises that ‘individuals vary in their motivation and decision-making processes’ and that therefore organisations must vary their integrity strategies based on a values alignment (‘Values Alignment’ section, para. 1). It is therefore important for sports organisations 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 management strategy for a sports organisation. It is therefore important for sports organisations to possess an understanding of how skills and values associated with integrity might be developed. There are a number of models that describe adult cognitive develop- ment. A model such as ‘vertical leadership: 7 leadership action-logics’ developed by Rooke and Torbert (2005; Torbert, 2004) from the transformational leadership work made popular in the 1980s, is one model that describes a staged develop- mental approach to vertical development. Vertical development fosters higher or later stages of vertical leadership. This concept is based in adult development theory which has stages describing levels of cognitive, emotional, and relational capabilities. Cook-Greuter (2004) described vertical development as the capacity to

learn to see the world through new eyes, how we change our interpretations of experience and how we transform our views of reality. It describes increases in what we are aware of, or what we pay attention to, and therefore what we can influence and integrate. (p. 276)

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Each stage of thinking becomes increasingly more complex, incorporating the previous level(s) and expanding awareness and capability as it increases the way a person makes sense of reality.11 While a minority of people could be described as ‘born leaders’, Rooke and Torbert’s (2005) research supports the idea that sophisticated leadership skills can be taught. Therefore, the identification and development of positive vertical leadership traits in sport decision-makers is crucial. Using models like action-logics, and implementing its profiling and vertical development tools, could assist sport decision-makers in moving from a culture of people operating at the lower ‘opportunistic’ levels of leadership, to those who have the ability to lead effectively and inspire others. Termed ‘Transforming (Strategist)’, ‘Alchemists’, or ‘Ironic/ Ionist’ leaders in the action-logics model, these leaders are able to generate personal and organisational transformations, exercise powers of mutual inquiry, vigilance and vulnerability and are conscious of paradox (Brown, 2013). Nelson Mandela’s striking example of exemplary sport leadership is described by Mohamed Muhsin (2013), himself said to be a visionary and highly functioning leader, 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 to shake the players’ hands before kick-off. The-then All Blacks coach Laurie Mains said the entire stadium was electrified at the sight of South Africa’s first black president sporting a garment that was indelibly associated with the apartheid 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 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 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 protect sport from various integrity threats, it must work closely with governments and agencies with access to relevant information, knowledge, and resources. In the anti- doping environment, then WADA President, John Fahey, introduced the Guidelines for Coordinating Investigations and Sharing Anti-Doping Information and Evidence (WADA, 2011a), stating the following: ‘For some time now we have been saying that testing alone is not enough to lead the fight against doping in sport, and that ADOs need to develop stronger relationships with law enforcement agencies’ (WADA, 2011b, ‘Guidelines’ section, para. 3). One major limitation of testing as a

68 Integrity and corruption in sport 47 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 other major 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 trafficking in prohibited substances, including athlete support personnel, there fore need to be identified through means other than testing. One way is through developing partnerships with law enforcement agencies. In May 2005, WADA and the Anti-Doping Norway Anti-Doping Symposium identified cooperation with police and customs as two of 18 factors for selecting athletes for detection purposes. This thinking was reflected in new powers given to the Australian Sports Anti-Doping Authority in 2006 (Ings, 2007). The Australian Sports Anti-Doping Authority was the first national anti-doping organisation to have legislated powers of information disclosure to allow it to exchange inform - ation with other sports and law enforcement bodies, such as Australian customs, the state and federal police, the Therapeutic Goods Administration, national anti- doping organisations, and the International Sports Federations (IFs). Sharing inform 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 that the illegal manufacture and distribution of performance-enhancing drugs (such as that seen in the U.S. Bay Area Laboratory Co-Operative scandal) required coordi- nation with law enforcement. In 2006, the International Criminal Police Organi sation (INTERPOL) and WADA committed to work together to identify areas for cooper ation (WADA, n.d.-b). The 2008 Memorandum of Understanding set out a framework for cooperation in tracking doping, in particular in the area of evidence-gathering and information-sharing. This arrangement included the provision by the French government of a seconded officer based at INTERPOL’s headquarters in Lyon to liaise between WADA, the governments, and the sport movement (WADA, 2008; ‘WADA Advances Cooperation’, 2008). The cooperation agreement between INTERPOL and WADA (2009) was formally signed in 2009. Similarly, in relation to match-fixing, it has been recognised that ‘no organisation can tackle the problem of match-fixing alone’ (INTERPOL, 2015, para. 4). In May 2011, INTERPOL and FIFA entered into a joint initiative with FIFA (2011) pledging to contribute €20 million over ten years to INTERPOL’s Integrity in Sport programme. INTERPOL and FIFA stated that a cross-sector approach is necessary at national, regional, and international levels in order to successfully reduce match-fixing. Further, ‘strategies should incorporate partnerships between national football associations and betting organizations as well as public authorities including law enforcement and regulators’ (INTERPOL, n.d., ‘A Multi-Faceted Approach Section’, para. 2). The first phase of the programme (2011–2014) focused on raising awareness, with the second phase from 2014 onwards, addressing

69 48 Ordway and Opie capacity building with targeted training courses delivered to participants in all regions of the world (INTERPOL, n.d.). This has included the opening of a multimillion dollar INTERPOL Global Complex for Innovation building in April 2015 in (INTERPOL, 2013; ‘Interpol Opens New Singapore Head - quarters’, 2015). The enthusiasm for public–private partnerships of this nature may have cooled somewhat after INTERPOL announced its decision to suspend the agreement in June 2015, following the FBI investigations into corruption against football’s governing body, which included a freeze on the use of the remaining financial contributions from FIFA. That raises concerns over INTERPOL accepting money from organisations it could potentially be investigating, as its independence would be called into question (Simons, 2015).

Good governance: transparency and accountability Many of the IFs and major games organisers, such as the IOC, are based in Switzerland. This location was arguably chosen because of the favourable tax status enjoyed, but also, as private organisations are not subject to the level of corporate accountability that might be expected in many other jurisdictions (Fridman, 1999). Over the last 15 years, Swiss taxation and corporations laws have been reviewed with the aim of tightening up governance requirements relating to private corp - orations (Geeraert, 2014; Jones, 2013; Zulauf and Weder, n.d.). In the absence of any sweeping changes coming through in the near future, the Action for Good Governance in International Sports Organisations, has developed the Sports Governance Observer (SGO) tool (‘Sports Governance Observer’, 2015). The SGO is an example of a mechanism to shine a light on the IFs in a consistent way to demonstrate the extent to which these organisations implement best practices in good governance. The headings used by the SGO include

1 Transparency and public communications, 2 Democratic process, 3 Checks and balances, and 4 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 (Transparency International, 2014a) that leadership diversity – and gender equity in particular – is a risk management tool that could also positively impact integrity outcomes in sport. Requiring organisations in the sports movement to report on the gender split 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 have appeared 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 Transparency in 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 and former senior members of the FIFA Executive (‘FIFA Scandal’, 2015) for the IOC to announce the introduction of independent auditing of the governance and funds provided to the IFs (Play the Game, 2015).12

Awareness and education No behavioural change strategy is complete without both awareness and education programmes. Outward communication channels with the aim of creating general awareness of the challenges and possible solutions are made available for the general public, media outlets, school children and stakeholders with an indirect association with the sports industry. Those directly impacted by integrity risks need to have more detailed and targeted education programmes. Education and advocacy have been the primary strategies used by the national anti-doping organisations since anti-doping first became a serious issue on the agenda for sports ministers around the globe (e.g., Australian Sports Drug Agency Act, 1990). To combat match-fixing, education and awareness have also been prioritised. For example, prior to the recent suspension of the relationship, INTERPOL and FIFA adopted the following strategies to lower the risk of match-fixing:

• Prevention: Prevention measures include awareness raising, training, and education. • 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 directly assist 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 German Transparency 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 Integrity in Football’, which focuses on how to prevent match-fixing. Germany was the first pilot 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 behaviour is 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 to be contract ually bound to codes of conduct or ethics codes, team and sponsorship agree ments, and nutritional, medical, and anti-doping policies. These agreements prohibit behaviour ‘bringing the sport into disrepute’ or against the ‘spirit of sport’. For example, the Australian Olympic Committee (2015) Team Membership Agreement for the 2016 Rio Olympic Games sets out the athlete’s obligations as follows:

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 disrepute or censure. (Clause 4.1)

The anti-doping policies have developed in sophistication from the simple 1928 ban by the then International Amateur Athletic Federation on the ‘use of stim- ulating substances’ (International Association of Athletics Federations, 1928) to the current four-part, 152-page World Anti-Doping Code (WADA, 2015) which serves as a model for adoption by sports organisations worldwide under the leader ship of WADA. The Code sets out that ‘doping is fundamentally contrary to the spirit of sport’ (WADA, 2015, p. 14). This harmonised approach received the support of national governments via the UNESCO (2005) International Con vention against Doping in Sport (see also Marriott-Lloyd, 2010). Included in INTERPOL and FIFA’s match-fixing prevention strategies are deter rent regulations involving sanctions for unprofessional behaviour (INTER- POL, n.d.). INTERPOL and FIFA reflect WADA’s standardised and harmon ised approach by reiterating the importance for ‘all stakeholders [to] operate in a coordinated manner, especially at national level, to ensure a comprehensive and unified approach to both the prevention of match-fixing and responses to allegations of match-fixing’ (INTERPOL, n.d., para. 2).

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Early warning systems For law enforcement agencies investigating corruption, money laundering and fraud offences, it is crucial to be able to follow the money trail. Investigations are often triggered by financial thresholds or other irregular accounting practices (Australian Transactions Reports and Analysis Centre, 2011). Similarly, to identify possible match-fixing, sports organisations are using quantitative analyses of betting market statistics (e.g., SportRadar; www.sportradar.com/). By analysing regulated and some grey betting markets (though not usually the unregulated or black markets), recommendations can be made on whether to allow the match to go ahead, or which matches warrant further investigation. Initial piloting work is currently being done to analyse performance measurements based on patterns, trends, decisions and behaviour in play (motivation, decision-making, intensity and vulnerability) to identify those players who attract suspicion and warrant further investigation (e.g., SportsWizard; http://sportswizard.com/). In anti-doping, qualitative analytics on athletes’ motivations to dope, such as return from injury, career progression (breaking in or prolonging) and reference events, have been taken into account in assigning target testing for many years (Hanstad and Loland, 2005). This work has more recently been supplemented by quantitative data collected from ‘biological passports’ (WADA, n.d.-a). The World Anti-Doping Code allows for anti-doping rule violations to be proven via ‘any reliable means’ (WADA, 2015, Article 3.2). Over the last 15 years approximately, anti-doping organisations have used markers and biological indicators to be able to assess an individual’s ‘normal’ thresholds (Ashenden, 2002; Schumacher and Pottgiesser, 2009).

Whistleblowing and reporting systems It is important that people with knowledge about corrupt practices have the oppor tunity to safely report their concerns and information to the investigative bodies. Integrity organisations have a strong interest in protecting whistle blowers, particularly when the information may relate to the activities of organised, and possibly highly dangerous, criminals. Therefore, some sports organisations have encouraged people to provide information anonymously or via encrypted services. Conversely, investigators need to be able to verify the source of the information provided in order to be able to determine its reliability. Using law enforcement tools, sport and anti-doping agencies receiving information via well-publicised ‘Stamp Out Doping’ (or similarly named) integrity hotlines13 assess the information to exclude the possibility that information may be erroneous or mistaken, or provided with the intention to adversely impact competitors.

Integrity units, officials and networks While there is no standardised understanding of what an ‘integrity officer’ duty statement might contain, a number of sport organisations have established integrity

73 52 Ordway and Opie units to develop and enforce their own codes of conduct and ethics policies. Many sport organisations have focused on recruiting and/or developing intelligence and investigative skills, such as in ,14 cricket,15 and tennis.16 Government agencies, such as the Australian National Integrity of Sport Unit (NISU), have tended to have a purely policy-based role. NISU is focused on education, facili- tating an integrity network of state government, sport and law enforcement personnel and providing template documents to support the work of other integrity units (Australian Government Department of Health, 2013).

Legislation and the role of penal measures At the international governmental level, participants at the fifth World Conference of Sports Ministers in May 2013 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 corruption (UNESCO, 2013; see also Bang, 2013). The Intergovernmental Committee for Physical Education and Sport has also included ‘better integrity in sport’ for the first time in the latest draft version of the International Charter of Physical Education, Physical Activity and Sport (Andersen and Alvad, 2015; UNESCO, 2014). In relation to match-fixing, Australia is one of the leading nations in adopting a national policy and prescribing a maximum ten-year jail term (Australian Govern - ment Department of Health, 2014). By way of comparison, while Australia also has a national anti-doping framework17 and a national anti-doping organisation established through its own Act of Parliament, Australia (along with WADA) does not 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.) cites asset protection as one of its corruption prevention key concepts. ACLEI’s (n.d.) asset protection model ‘recognises that investment and proper management of integrity and professional standards builds the capability of an agency, in the same way that investing in people or information does’ (‘Asset Protection Model’ section, para. 2). This concept can be applied specifically to the sports context. 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 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

74 Integrity and corruption in sport 53 programmes (Moston, Engelberg and 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. Anecdotal evidence suggests that differences in the approach of sports organi- sations to player welfare impacts on integrity issues. For example, the Australian Football League has taken a strong ‘health’ approach to tackling illicit drug use among its players, which arguably has paid dividends in both assisting the players and in protecting the sport’s brand (Harcourt, Unglik and Cook, 2012). By way of com parison, there have been questions raised in connection with the match-fixing case 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 Football Operations, Alan Thompson, and the NRL’s Head of Football, Todd Greenberg, of knowing about Tandy’s gambling debts, and failing to act ahead of the fix, more import antly, questions remain about the extent to which the club/NRL should have 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 ideas and research through paper prizes and other grants and competitions to encourage people 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 to research (WADA, n.d.-c). The IOC (2014), National Olympic Com mittees and sports on the Olympic Program have a number of different PhD and other research grants available to those interested in promoting integrity aims. General anti-corruption competitions have also awarded prizes for sport integrity initiatives (International Anti-Corruption Conference, n.d.). Transparency International has continued its commitment to integrity in sport by promoting, what it terms as a

space for new analysis, commentary and recommendations by leading voices in the field of sports governance to strengthen transparency, accountability and participation [to] showcase the work of TI national chapters and the wider 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

75 54 Ordway and Opie organisations to the fans and the players. For example, the New FIFA Now campaign (www.newfifanow.org/), led by European Parliament members Ivo Belet and Emma McClarkin, held a coalition meeting in on 21 January 2015. The summit sought to establish a FIFA Reform Commission and published a Charter for Change (New FIFA Now, 2015) and Guiding Principles for Demo - cracy, Transparency and Accountability (New FIFA Now, n.d.-a). It remains to be seen whether initiatives of this kind can exert sufficient pressure to create lasting change 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, or otherwise to protect a sport’s brand from a purely commercial perspective, it is clear that it will only become more important that sports administrators have a good understanding of what the possible threats to the integrity of sport are and how those threats might be dealt with. Cheating has long been present in every human endeavour causing some psychologists to spend their entire careers examining why we cheat (Fang and Casadevall, 2013). Sport presents unique challenges that go beyond the traditional temptations of corruption: fraud, nepotism, and other self-serving abuses of trust. Cheating to win (doping) and cheating-to-lose (match-fixing) incentives have only been further exacerbated by the vast financial gains made by athletes through sponsorships, prize money, and season contracts, or via the punters eager to participate in the various regulated or poor-to-unregulated gambling 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 facing sport today. Whether by tackling cultural and leadership issues through awareness and education campaigns, enforcing sport rules and legislative processes, improving relationships with like-minded entities or creating greater transparency around pre- and post-reporting mechanisms, it is clear that sport must look to other industries for guidance and solutions. Sports organisations will have to adopt higher standards of accountability and transparency. Sport integrity is a complex concept. By draw ing on and adapting a number of strategies, sports administrators have the oppor tunity to leave a positive legacy for the next generation inspired to believe in the spirit of sport.

Notes 1 In a case of spot fixing as part of an alleged betting scam, three no balls were arranged to be bowled during a test match between Pakistan and England. The players involved

76 Integrity and corruption in sport 55

were convicted and jailed (see R v. Amir, 2011, EWCA Crim 2914; Gardiner, S. ‘R v Amir and Butt, 2011 EWCA Civ 2914). 2 In 2011, Ryan Tandy of the Canterbury Bulldogs of the Australian NRL was charged and convicted of the criminal offence of ‘attempting to dishonestly obtain a financial advantage 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 betting ring engulfed the Victorian Premier League, a state-based association football competition which sat below the Australian national competition. The Southern Stars team had won only one of 21 matches, yet on 18 August 2013, the bottom-of-the-table club defeated the competition leader 1-0. Some specially imported players and the local ring 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 Amateur Sport Integrity Act into the U.S. Senate in 2001 (S. 718) and in Australia, the National Sport 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 a stronger posi tion to select players in the following season draft process; Balsdon, Fong, Thayer, 2007). 7 The example of South African cricket , 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 governing body of football, FIFA could take to repair its reputation (see, for example, ‘England Miss Out’, 2010). 10 ACLEI (n.d.-a) also refers to leaders setting the ‘tone from the top’ and ‘regards managers and supervisors as the frontline of corruption control’ (‘Leadership and Culture’ section, paras. 1–2). 11 With thanks to Caron Egle of Sage Thinking (www.sagethinking.com.au/) for her explanation 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 review involving ‘the timeliness of investigations, case management and processing of applications; communication; participant engagement and education; internal processes

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and performance monitoring; and technological threats and opportunities’ (‘Integrity Review’ section, para. 3). 15 In 2000, the International Cricket Council launched their Anti-Corruption and Security Unit; however, only 1 per cent of their profit was budgeted and spent on the unit (Carpenter, 2012). 16 The International Tennis Federation reportedly spends 30 per cent of its worldwide development fund on its Integrity Unit (Gardiner and Naidoo, 2006). 17 On 11 February 2011, all Australian sports ministers endorsed on behalf of their governments, an updated National Anti-Doping Framework with the aim of aligning domestic anti-doping efforts in Australia through a set of agreed upon principles, along - side clearly identified areas for cooperation among Australian governments (Australian Government Department of Health, 2015). 18 This is in contrast to the approach taken in France, Italy and Germany where doping is decriminalised; for example, in 1998, vials of EPO were found in a French Festina team car following a police raid at the Tour de France. Several riders and team support crew were suspended (‘WADA Against Jail’, 2014). 19 In April 2014, Tandy was found dead from a reported drug overdose (‘Former NRL Player’, 2014; Massoud, 2014). 20 In ancient Greece, fines paid by athletes who broke the rules went to buy bronze statues of Zeus hurling thunderbolts like javelins. Called ‘Zanes’, they were set up along the road to the stadium, where the athletes could read on them warnings in couplets like this one (‘Cheating in the Ancient Olympic’, n.d.).

References Alm, J. (ed.). (2013, April). Action for good governance in international sports organisations. Retrieved from Play the Game website: www.playthegame.org/fileadmin/documents/ Good_governance_reports/AGGIS_Final_report.pdf Amateur Sport Integrity Act of 2001, S. 718 107th Cong. (2001). Andersen, J. S. and Alvad, S. (2015, January 6). Governments face global upgrade of their sports policies. Play the Game. Retrieved from www.playthegame.org Anderson, J. (2012). Gambling-led corruption in international sport: An Australian perspective. International Sports Law Journal, 1(2), 3–6. Retrieved from www.springer. com/law/international/journal/40318 Anderson, P. M., Blackshaw, I. S., Siekmann, R. C. R. and Soek, J. (eds). (2012). Sports betting: Law and policy. The Hague: Asser Press. Anderson, J., Duval, A., Van, R. B. and McArdle, D. (2014, July). Study on risk assessment and management and prevention of conflicts of interest in the prevention and fight against betting-related match-fixing in the EU 28: Final Report. Retrieved from http://ec.europa.eu/sport/ news/2014/docs/study-asser_en.pdf Ashenden, M. J. (2002). A strategy to deter blood doping in sport. Haematologica, 87, 225–232. Retrieved from www.haematologica.org/ Australian Commission for Law Enforcement Integrity. (n.d.-a). Corruption prevention toolkit. Retrieved from www.aclei.gov.au/Pages/Corruption-Prevention/Corruption-Pre vention-Toolkit.aspx#leadership Australian Commission for Law Enforcement Integrity. (n.d.-b). Key concepts. Retrieved from www.aclei.gov.au/Pages/Corruption-Prevention/Key-concepts.aspx Australian Government Department of Health. (2013, October, 25). Role of the National Integrity of Sport Unit. Retrieved from www.health.gov.au/internet/main/publishing. nsf/Content/role-of-the-national-integrity-of-sport-unit

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Australian Government Department of Health. (2014, February 11). National policy on match- fixing in sport. Retrieved from www.health.gov.au/internet/main/publishing.nsf/ Content/national-policy-on-match-fixing-in-sport Australian Government Department of Health. (2015, October 28). Anti-doping framework. Retrieved from www.health.gov.au/internet/main/publishing.nsf/Content/anti- doping-framework Australian Government Department of Health. (2016, January 19). National Integrity of Sport Unit. Retrieved from www.health.gov.au/internet/main/publishing.nsf/content /national-integrity-of-sport-unit Australian Olympic Committee. (2015, August 21). Team membership agreement – athletes. Retrieved from http://aoc-rio2016.s3.amazonaws.com/files/dmfile/ATHLETES%20- %202016%20Australian%20Olympic%20Team%20Membership%20Agreement%20-% 20FINAL%20w%20Schedules_201015.pdf Australian Sports Drug Agency Act of 1990, Act No. 18 (1991). Australian Sports Commission. (n.d.). What is sport integrity? Retrieved from www.ausport.gov.au/supporting/integrity_in_sport/about/what_is_sport_integrity Australian Transactions Reports and Analysis Centre. (2011). Money laundering in Australia 2011. Retrieved from www.austrac.gov.au/sites/default/files/documents/money_ laundering_in_australia_2011.pdf Balsdon, E., Fong, L. and Thayer, M. A. (2007). Corruption in college basketball? Evidence of tanking in postseason conference tournaments. Journal of Sports Economics, 8, 19–38. doi:10.1177/1527002505275095 Bang, S. (2013, June 1). Berlin Declaration: 137 countries call for enhanced effort against match-fixing and corruption. Play the Game. Retrieved from www.playthegame.org/ Barroso, O., Mazzoni, I. and Rabin, O. (2008). Hormone abuse in sports: The antidoping perspective. Asian Journal of Andrology, 10, 391–402. doi:10.1111/j.1745-7262.2008. 00402.x Beyerle, S. (2014). Curtailing corruption: People power for accountability and justice. Boulder, CO: Rienner. British Horseracing Authority. (n.d.). Integrity review. Retrieved from www.british- horseracing.com/resource-centre/integrity/ Brown, B. C. (2013). The future of leadership for conscious capitalism. Retrieved from MetaIntegral Associates website: https://metaintegral.org/sites/default/files/Meta Integral_Brown_The%20future%20of%20leadership%20for%20conscious%20capital ism.pdf Carpenter, K. (2012, June 5). Match-fixing – the biggest threat to sport in the 21st century? Retrieved from www.lawinsport.com/articles/anti-corruption/item/match-fixing-the- biggest-threat-to-sport-in-the-21st-century-part-1 Carpenter, K. (2013). Global match-fixing and the United States’ role in upholding sporting integrity. Berkeley Journal of Entertainment and Sports Law, 2, 214–229. doi:10.15779/ Z38JS90 Carson, W. G. (2003, August). Whole of government and crime prevention for Victoria. Melbourne: University of Melbourne, Department of Criminology. Chappelet, J.-L. and Mrkonjic, M. (2013). Basic indicators for Better Governance in International Sport (BIBGIS): An assessment tool for international sport governing bodies (IDHEAP Working Paper 1/2013). Retrieved from www.transparency.ch/de/PDF_files/Newsletter/ 201306_Newsletter_Publikation_Chappelet_und_Mrkonjic__2013__Basic_Indicators_ for_Better_Governance_in_International_Sport.pdf Cheating in the Ancient Olympics. Retrieved from the Hellenic World website: www.ancientworlds.net/aw/post/1273461

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Cook-Greuter, S. R. (2004). Making the case for a developmental perspective. Industrial and Commercial Training, 36, 275–281. doi:10.1108/00197850410563902 Corrupt. (2001). In The Macquarie dictionary: Federation edition. New South Wales, Australia: Macquarie. Council of Europe. (2014, July 9). Convention Europe on the manipulation of sports competitions. Retrieved from https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2014)1205/8.1& Language=lanEnglish&Ver=app9&Site=CM&BackColorInternet=DBDCF2&BackCol orIntranet=FDC864&BackColorLogged=FDC864 Cycling Independent Reform Commission. (2015, February). Report to the President of the Union Cycliste Internationale. Retrieved from www.uci.ch/mm/Document/News/ CleanSport/16/87/99/CIRCReport2015_Neutral.pdf David, P. (2013). A guide to the World Anti-Doping Code (2nd ed.). Cambridge: Cambridge University Press. Davis, S. (2015, June 11). FIFA may not be able to change the hosts of the 2018 and 2022 World Cups even if they want to. Business Insider. Retrieved from www.business insider.com/ Dubin, C. L. (1990). Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance. Retrieved from Government of Canada website: http://publications.gc.ca/collections/collection_2014/bcp-pco/CP32-56-1990-1-eng.pdf Duggar, J. W. (2009, April 12). The role of integrity in individual and effective corporate leadership. Journal of Academic and Business Ethics, 3. Retrieved from www.aabri.com/ jabe.html Edwards, M. and Clough, R. (2005, January). Corporate governance and performance: An exploration of the connection in a public sector context (Issues Series Paper No. 1). Retrieved from www.governanceinstitute.edu.au/magma/media/upload/publication/158_Issues PaperNo-1_Governance-PerformanceIssues.docx England miss out to Russia in 2018 World Cup vote. (2010, December 2). BBC News. Retrieved from http://news.bbc.co.uk/sport2/hi/football/9250585.stm Engelberg, T., Moston, S. and Skinner, J. (2015). The final frontier of anti-doping: A study of athletes who have committed doping violations. Sport Management Review, 18, 268–279. doi:10.1016/j.smr.2014.06.005 Fang, F. C. and Casadevall, A. (2013). Why we cheat. Scientific American Mind, 24(2). Retrieved from www.scientificamerican.com/ FIFA. (2011, May 9). FIFA’s historic contribution to INTERPOL in fight against match-fixing [Press release]. Retrieved from www..com/governance/news/y=2011/m=5/ news=fifa-historic-contribution-interpol-fight-against-match-fixing-1431884.html FIFA scandal: US seeks extradition of seven FIFA officials being held in Switzerland. (2015, July 2). ABC Grandstand Sport. Retrieved from www.abc.net.au/news/2015-07-03/ us-seeks-extradition-of-fifa-7-in-switzerland/6591696?section=sport Forrest, D. (2012). The threat to football from betting-related corruption. International Journal of Sport Finance, 7(2), 99. Retrieved from https://ijsf.wordpress.com/ Former NRL player Ryan Tandy found dead from reported drug overdose. (2014, April 29). ABC News. Retrieved from www.abc.net.au/news/2014-04-28/ryan-tandy-dies/ 5416398 Franke, W. and Berendonk, B. (1997). Hormonal doping and androgenization of athletes: A secret program of the German Democratic Republic Government. Clinical Chemistry, 43, 1262–1279. Retrieved from www.clinchem.org/ Fridman, S. (1999). Conflict of interest, accountability and corporate governance: The case of the IOC and SOCOG. University of New South Wales Law Journal, 22(3). Retrieved from www.unswlawjournal.unsw.edu.au/

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Gardiner, S. and Naidoo, U. (2006). On the front foot against corruption. Sport and the Law Journal, 15(2), 16–27. Retrieved from www.britishsportslaw.org/ Geeraert, A. (2014, July 11). Switzerland prepares stricter laws against sports corruption. Play the Game. Retrieved from www.playthegame.org/ Greenberg cleared over Tandy betting allegations. (2014, May 16). Retrieved from www.nrl. com/greenberg-cleared-over-tandy-betting-allegations/tabid/10874/newsid/78500/ default.aspx Hanstad, D. V. and Loland, S. (2005). What is efficient doping control?: A study of procedures and their justification in the planning and carrying out of doping control in sport. Retrieved from http://idrottsforum.org/push/efficient_doping_control.pdf Harcourt, P. R., Unglik, H. and Cook, J. L. (2012). A strategy to reduce illicit drug use is effective in elite Australian football. British Journal of Sports Medicine. doi:10.1136 /bjsports-2012-091329 Harding, L. (2005, November 17). Two years in jail for match-fixing German referee. The Guardian. Retrieved from www.theguardian.com Heron, M. and Jiang, C. (2010). The gathering storm – organised crime and sports corruption. Australian and New Zealand Sports Law Journal, 5, 99–118. Retrieved from https://anzsla.com/content/australian-new-zealand-sports-law-journal Hill, D. (2002, December 11). The Russian mafia and hockey. Play the Game. Retrieved from www.playthegame.org/ Hill, D. (2010, April). A critical mass of corruption: Why some football leagues have more match-fixing than others. International Journal of Sports Marketing and Sponsorship, 11, 221– 235. Retrieved from www.imrpublications.com/journal-landing.aspx?volno=L& no=L Hill, D. (2011, August 29). The Ten Commandments for anti-corruption [Blog post]. Retrieved from http://leastthing.blogspot.com/2011/08/declan-hills-ten-command ments-for-anti.html Hill, D. (2013). The insider’s guide to match-fixing in football. Toronto, Canada: McDermid. Ings, R. (2007). Australia: Revolutionary model battles doping on all eight fronts of the code. Play True, 1, 10–11. Retrieved from www.wada-ama.org/en/resources/search?f [0]=field_resource_collections%3A12 Inquiry. (2001). In The Macquarie dictionary: Federation edition. New South Wales, Australia: Macquarie. International Association of Athletics Federations. (1928, October). Handbook of the International Amateur Athletic Federation, 1927–1928. Västerås, Sweden: Author. International Anti-Corruption Conference. (n.d.). Social entrepreneurs. Retrieved from http://16iacc.org/game-changers/social-entrepreneurs/ International Olympic Committee. (2014, November 18). Grant programmes encouraging Olympic Movement related research. Retrieved from www.olympic.org/Assets/OSC% 20Section/pdf/Grant_programmes_encouraging_OM_research.pdf International Olympic Committee. (2015, August 2). Olympic charter. Retrieved from www.olympic.org/Documents/olympic_charter_en.pdf International Criminal Police Organization. (n.d.). Integrity in sport [Brochure]. Retrieved from www.interpol.int/Crime-areas/Integrity-in-Sport/Integrity-in-sport International Criminal Police Organization. (2013, September 23). INTERPOL Global Complex for Innovation reaches new heights [Press release]. Retrieved from www.interpol. int/News-and-media/News/2013/PR114 International Criminal Police Organization. (2015, May 11). Boosting national efforts against match-fixing focus of INTERPOL-FIFA meeting in Canada [Press release]. Retrieved from www.interpol.int/News-and-media/News/2015/N2015-055

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International Criminal Police Organization and World Anti-Doping Association. (2009, February 2). Cooperation Agreement between INTERPOL and WADA. Retrieved from www.interpol.int/content/download/9287/68584/version/2/file/INTERPOL_ WADA.pdf Interpol opens new Singapore headquarters in bid to target cybercrime. (2015, April 13). South China Morning Post. Retrieved from www.scmp.com/news/asia/article/1765805/ interpol-opens-new-singapore-base Jacques Rogge: Corruption next fight. (2011, July 14). ESPN. Retrieved from http://espn. go.com/olympics/story/_/id/6768358/jacques-rogge-says-match-fixing-gambling-big- fights-sports Jones, K. L. (2013). Compliance mechanism as a tool of prevention? In M. T. R. Haberfeld and D. L. Sheehan (eds) Match-fixing in international sports: Existing processes law enforcement and prevention strategies (pp. 199–228). New York: Springer. Lane, S. (2011, July 27). Illegal betting, match-fixing as dangerous as doping, says IOC chief. The Sydney Morning Herald. Retrieved from www.smh.com.au/ Legal India. (2013, October 14). Sporting fraud prevention bill styled on laws in many countries. Retrieved from www.legalindia.com/news/sporting-fraud-prevention-bill- styled-laws-many-countries Le Grand, C. (2015). The straight dope. Melbourne: Melbourne University Press. Lord Woolf and PricewaterhouseCoopers. (2012, February 1). An independent governance review of the International Cricket Council. Retrieved from www.playthegame.org/ fileadmin/documents/Good_governance_reports/DOC_6E43A6280C922ABC51A9C 6AB55AA58E1_1328155148580_481.pdf Lumpkin, A. (1983). Sport and human values. Journal of Popular Culture, 16(4), 4–10. doi:10. 1111/j.0022-3840.1983.1604_4.x Marriott-Lloyd, P. (2010). International Convention against Doping in Sport (Report No. SHS/2010/PI/H/2). Retrieved from UNESCO website: http://unesdoc.unesco. org/images/0018/001884/188405e.pdf Massoud, J. (2014). The penalty. New South Wales: Allen and Unwin. Moston, S., Engelberg, T. and Skinner, J. (2015). Self-fulfilling prophecy and the future of doping. Psychology of Sport and Exercise, 16, 201–207. doi:10.1016/j.psychsport.2014. 02.004 Muhsin, M. V. (2013, December 8). Mandela the secret weapon in 1995 World Cup Rugby final. The Sunday Observer. Retrieved from www.sundayobserver.lk/ New FIFA Now. (n.d.-a). Guiding principles for FIFA reform. Retrieved from www.new fifanow.org/guiding-principles.html New FIFA Now. (n.d.-b). Where are they now? Retrieved from www.newfifanow.org/ where-are-they-now.html New FIFA Now. (2015, January). Charter for FIFA reform. Retrieved from www.new fifanow.org/charter-for-fifa-reform.html NRL reportedly investigating Todd Greenberg over knowledge of Ryan Tandy’s gambling on rugby league games. (2014, May 9). ABC News. Retrieved from www.abc.net.au/ news/2014-05-10/nrl-investigating-greenberg-over-tandy-allegations-report/544 4154 Play the Game. (2015, November 12). IOC to initiate independent audits of International Federations. Retrieved from www.playthegame.org/news/news-articles/2015/0132_ioc- independent-audits-of-ifs/ Portelli, E. and Rolfe, P. (2014, April 24). Professional clown Segaran ‘Gerry’ Subramaniam jailed for role in Southern Stars match-fixing, as club loses points, cops $10,000 fine Herald Sun. Retrieved from www.heraldsun.com.au/

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Richards, R. and Murphy, G. (2015, August). Sport participation in Australia. Retrieved from www.clearinghouseforsport.gov.au/knowledge_base/sport_participation/community_ participation/sport_participation_in_australia Rooke, D. and Torbert, W. R. (2005, April). Seven transformations of leadership. Harvard Business Review. Retrieved from https://hbr.org/ Ruigrok, W., Peck, S. I. and Tacheva, S. (2007). National and gender diversity on Swiss corporate boards. Corporate Governance: An International Review, 15, 546–577. Retrieved from http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1467-8683 Salter, A. (2003). Predators, pedophiles, rapists, and other sex offenders: Who they are, how they operate, and how we can protect ourselves and our children. New York: . Schumacher, Y. O. and Pottgiesser, T. (2009). Performance profiling: A role for sport science in the fight against doping. International Journal of Sports Physiology and Performance, 4, 129– 133. Retrieved from http://journals.humankinetics.com/ijspp Shipley, A. (2007, October 5). Marion Jones admits to steroid use. Washington Post. Retrieved from www.washingtonpost.com/ Sigmund, S. (2004). The jurisprudence of Judge Kenesaw Mountain Landis. Marquette Sports Law Review, 15, 277–330. Retrieved from http://scholarship.law.marquette.edu/ sportslaw/ Simons, J. W. (2015, June 3). How Interpol got into bed with FIFA. Politico. Retrieved from www.politico.eu/ Sports Governance Observer – a benchmarking tool to strengthen transparency and democracy in your sport. (2015). Retrieved from www.playthegame.org/theme-pages/ the-sports-governance-observer/ Sweeney, G. (2015, April 9). Welcome to Transparency International’s new ‘Corruption in Sport Initiative’ [Blog post]. Retrieved from http://blog.transparency.org/2015/04/09 /welcome-to-transparency-internationals-new-corruption-in-sport-initiative/ Sydney Scoreboard. (n.d.). Global scoreboard. Retrieved from www.sydney scoreboard.com/global-scoreboard/ Torbert, B. (2004). Action inquiry: The secret of timely and transforming leadership. San Francisco, CA: Berrett-Koehler. Transparency International. (n.d.). What is corruption? Retrieved from www.transparency. org/what-is-corruption/#define Transparency International. (2011, August 16). Safe hands: Building integrity and transparency at FIFA. Retrieved from www.transparency.org/whatwedo/publication/safe_hands_ building_integrity_and_transparency_at_fifa Transparency International. (2013, November 18). Fair play: strengthening integrity and transparency in cricket. Retrieved from www.transparency.org/whatwedo/publication/ fair_play_strengthening_integrity_and_transparency_in_cricket Transparency International. (2014a, April 7). Policy Brief 01/2014: Gender, equality and corruption: What are the linkages? Retrieved from www.transparency.org/whatwedo/ publication/policy_position_01_2014_gender_equality_and_corruption_what_are_the_ linkage Transparency International. (2014b). Staying on side: Education and prevention of match-fixing. Retrieved from www.transparency.org/whatwedo/activity/staying_on_side_education_ and_prevention_of_match_fixing U.N. Office on Drugs and Crime. (2004). United Nations convention against corruption. Retrieved from www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf UNESCO. (2005, October 19). International Convention against Doping in Sport. Retrieved from www.unesco.org/new/en/social-and-human-sciences/themes/anti- doping/international-convention-against-doping-in-sport/

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UNESCO. (2013, May 30). UNESCO conference in Berlin adopts roadmap to clean up sport and make it accessible for all [Press release]. Retrieved from www.unesco.org/new/en/social- and-human-sciences/themes/physical-education-and-sport/sv14/news/unesco_con ference_in_berlin_adopts_roadmap_to_clean_up_sport_and_make_it_accessible_for_all /#.VjCa936rQgt UNESCO. (2014, November 4). Preliminary draft of the revised International Charter of Physical Education and Sport. Retrieved from http://unesdoc.unesco.org/images/0023/002305/ 230547e.pdf Unger, D. (2015, April 9). What made corruption a hot topic in sports [Blog post]. Retrieved from http://blog.transparency.org/2015/04/09/what-made-corruption-a-hot-topic-in- sports/ Ungerleider, S. (2001). Faust’s gold: Inside the East German doping machine. New York: Dunne. U.S. Anti-Doping Agency. (2012, October 10). Report on proceedings under the World Anti- Doping Code and the USADA Protocol: USADA v. Armstrong. Retrieved from https://d3epuodzu3wuis.cloudfront.net/ReasonedDecision.pdf van der Walt, N. and Ingley, C. (2003). Board dynamics and the influence of professional background, gender and ethnic diversity of directors. Corporate Governance: An International Review, 11, 218–234. doi:10.1111/1467-8683.00320 WADA advances cooperation with Interpol, athlete passport development. (2008, November 23). Retrieved from International Sports Press Association website: www.aips media.com/index.php?page=news&cod=2803&tp=n#.Vc7Z9fmqqko WADA against jail terms for athletes. (2014, November 17). The Age. Retrieved from www.theage.com.au/sport/wada-against-jail-terms-for-athletes-20141116-11o25a. html Welch, D. (2014, May 8). Ryan Tandy: Disgraced NRL footballer’s gambling led to his career, life unravelling. ABC News. Retrieved from www.abc.net.au/news/ Woolf, L. and PricewaterhouseCoopers. (2012, February 1). An independent governance review of the International Cricket Council. Retrieved from http://static.espncricinfo. com/db/DOWNLOAD/0000/0093/woolfe_report.pdf Woolley, R. (2009). Commercialization and culture in Australian gambling. Continuum: Journal of Media and Cultural Studies, 23, 183–196. doi:10.1080/10304310802710520 World Anti-Doping Agency. (n.d.-a) Athlete biological passport. Retrieved from www.wada-ama.org/en/what-we-do/science-medical/athlete-biological-passport World Anti-Doping Agency. (n.d.-b). INTERPOL Cooperation. Retrieved from www.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 illegal manufacture and distribution of doping substances: New era in anti-doping must involve coordination with 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 board meeting. 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 and sharing anti-doping information and evidence. Retrieved from www.wada-ama.org/

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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 from www2.deloitte.com/ch/en/pages/tax/articles/corporate-tax-reform-III.html

85 Chapter 2: Good governance: independence and gender equality

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

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

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

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

88 PUBLICATION #2

Part V

The World Anti-Doping Code as Regulation: Governance and Compliance

89 90 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 growth1 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 Fé d é ration Internationale de Football Association

* 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.

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(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

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/LexUriSer v/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.

92 Beyond the Fox and the Hen House 209

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 with doping or suspected doping in a timely manner. Some of those institutions had both operational and monitoring responsibilities pursuant to the Code. They include, for purposes of this [IC] Report, the All-Russian Athletics Federation (ARAF), the Russian Anti-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

14 G a r e t h M o r g a n, 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 .

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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.

WA D A

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.

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 .

94 Beyond the Fox and the Hen House 211

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 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

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.

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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.

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.

96 Beyond the Fox and the Hen House 213

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 , South Africa; , 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

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.

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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

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

98 Beyond the Fox and the Hen House 215 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

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 .

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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 the IOC 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

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.

100 Beyond the Fox and the Hen House 217 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

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).

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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 each case 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 any error of law, whether any exercise of judgement or discretion fell within the limits open to 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.

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.

102 Beyond the Fox and the Hen House 219

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 ledgers89 and to appoint external auditors.90 After conducting an audit, the external auditors are required to provide

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).

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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.

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 i b i d . 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.

104 Beyond the Fox and the Hen House 221

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

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.

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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

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.

106 Beyond the Fox and the Hen House 223 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

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.

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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.

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 .

108 Beyond the Fox and the Hen House 225

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

117 A culture which has in large part been inherited from the IOC, IFs and other international organisations. 118 M a r k B o v e n s, 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 9 1. 122 WADA (n 40) art 10.

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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

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 2 6.

110 Beyond the Fox and the Hen House 227 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

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, ‘ Not es: 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 .

111 228 Marina Nehme and Catherine Ordway 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, , Norway, Switzerland, Australia, Brazil, China, Hong Kong, India, Russia, ’ ( 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).

112 Beyond the Fox and the Hen House 229 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 .

113 230 Marina Nehme and Catherine Ordway

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- maë ssige Verguë tungen bei boë 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.

114 Beyond the Fox and the Hen House 231 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.

115 PUBLICATION #3

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

1

116 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

2

117 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

3

118 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.

4

119 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.

5

120 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

6

121 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).

7

122 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

8

123 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

9

124 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.

10

125 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

11

126 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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127 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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128 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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129 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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130 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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131 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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132 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 , 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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133 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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134 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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135 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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136 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 member having 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 to nominate 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 and standing committees. This principle is based on the IOC model and it means that elected or appointed bodies will comprise at least 40% women with the FFA expecting it to also apply at State and regional levels. [FFA 2018(a) cl.44. This Principle was defined by cl.45.1 to mean: “a gender target of 40% men, 40% women and 20% either”.] 4. The gender composition of the Chair and Deputy Chair of the FFA Board. Where possible, the elected directors must ensure that if the Chair is a male, then the Deputy chair will be a female. And vice versa. [FFA 2018(a) cl.15.9(f)] (Reid 2018 Bracketed references 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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137 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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138 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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139 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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140 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 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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141 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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142 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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143 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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155 Chapter 3: Partnerships – information-sharing and inter-agency collaboration

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

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

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

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.

159 PUBLICATION #4

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163 PUBLICATION #5

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 money-­laundering. 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.

164 Routledge Research in Sport and Corruption Series Editors: James Skinner Loughborough University London, UK Terry Engelberg-Moston­ James 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 viii Notes on contributors x Foreword xvi Acknowledgements xviii Notes on style xx List of abbreviations xxii

Part I Conceptualising match-fixing­ 1

1 Comparing approaches to match-­fixing in sport: revisiting perceptions and definitions 3 Hayden Opie and Stacey Steele

2 Betting markets and the roles of private enterprise in combating match-­fixing 18 Andrew Menz and David Skene

Part II Legal theories, frameworks and developments 41

3 Match-­fixing and illegal gambling in Japan: cultural interpretations of integrity 43 Keiji Kawai

4 The Australian legal framework for countering match-­fixing 59 Hayden Opie and Genevieve Lim

168 vi Contents

5 Legal and administrative frameworks for combating match-­fixing in Korea 75 Kee Young Yeun

6 Practical approaches to match-­fixing in Korea: match-­fixing scandals, judicial responses and suggestions for change 94 Ji Hoon Park

7 Harmonisation and international approaches to match-­fixing 111 Yuta Ando

Part III Prevention and enforcement 133

8 ‘Don’t fix it!’: the role of player empowerment in the prevention of match-­fixing 135 Brendan Schwab and Steven Finocchiaro

9 A study of professional players’ perceptions of match-­fixing and prevention education strategies in Korea 151 Young Ryuel Chung, Joo Won Jun and Jin Kook Kim

10 Police and investigative cooperation on match-fixing:­ an Australian experience 171 Catherine Ordway

11 On the frontline: the role and operations of the Victoria Police Sporting Integrity Intelligence Unit (‘SIIU’) 187 Kieran Murnane and James Moller

12 Match-­fixing and the roles of public prosecutors in Korea 204 Stacey Steele, Jess (Hee Sung) S hi n a n d Sarah (Jin Hyung) Yang

169 Contents vii

Part IV Findings and observations 229

13 Preventing match-­fixing and promoting integrity in sport: reflections on experiences in Australia, Japan and Korea 231 Stacey Steele and Hayden Opie

Index 248

170 Tables

3.1 Cases where match-­fixing was established withink ōei 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 155 9.4 Differences in sports ethics 156 9.5 Differences in players’ understanding of illegal sports gambling 156 9.6 Differences in players’ experiences of match-­fixing suggestions 157 9.7 Differences in players’ experiences with accessing illegal sports gambling websites 157 E9.8xperiences with match-­ fixing education 158 9.9 Timing of first match-­fixing prevention education 159 9.10 Sports players’ evaluation of their satisfaction with match-­fixing education 160 9.11 Differences in players’ evaluation of their match-­fixing education 160 9.12 Frequency of players’ education 161 9.13 Duration of players’ education 162 9.14 Concerns about the current match-­fixing education system 163 9.15 Professional sports players’ perception/thoughts of match-­fixing prevention education 164

171 Tables ix

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 165 12.1 National Sports Promotion Act prosecution statistics 216

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

173 Contributors xi

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

174 xii Contributors

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.

175 Contributors xiii

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

176 xiv Contributors

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)) and the University of Melbourne (LLB (Hons) and LLM (by thesis)). She speaks Japanese and is also a practising lawyer specialising in financial services 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

177 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 asthe 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

179 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. Balasingam Director for Asia and Oceania Fédération Internationale de Football Association Zurich 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

181 Acknowledgements xix 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 Opie May 2017

182 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).

183 Notes on style xxi

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

Notes 1 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 Commission AFC Asian Football Confederation AFL Australian Football League AFP Australian Federal Police AML/CTF Act Anti-­Money Laundering and Counter-Terrorism­ Financing Act 2006 (Cth) ARU Australian Rugby Union ASADA Australian Sports Anti-­Doping Authority AUSTRAC Australian Transaction Reports and Analysis Centre CA Cricket Australia CAS Court of Arbitration for Sport Con Ops Concepts of Operations FFA Football Federation Australia FIFA Fédération Internationale de Football Association GR Act Gambling Regulation Act 2003 (Vic) HRV Harness Racing Victoria ICC International Cricket Council ICSS International Centre for Sport Security IGA Interactive Gambling Act 2001 (Cth) IOC International Olympic Committee IP Internet Protocol JOC Japan Olympic Committee JSA Japan Sports Agency JSC Japan Sport Council MACC Malaysian Anti-­Corruption Commission MACC Malaysian Anti-­Corruption Commission Act 2009 MEXT Ministry of Education, Culture, Sports, Science and Technology (Japan) MGA Malta Gaming Authority MoU Memoranda of Understanding MSE 2015 major sporting events 2015 NBL national Basketball League (Australia)

185 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 Commission ORIC Office of the Racing Integrity Commissioner (Victoria) POI persons of interest SCBs sport controlling bodies SIIU Victoria Police Sporting Integrity Intelligence Unit TA Tennis Australia TIU Tennis Integrity Unit, International Tennis Federation UEFA union of European Football Associations VPL Victorian Premier League

186 Chapter 10 Police and investigative cooperation on match-­fixing An 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

187 172 C. Ordway 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.­

188 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

189 174 C. Ordway 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

190 Investigative cooperation in Australia 175 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

191 176 C. Ordway 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,

192 Investigative cooperation in Australia 177 and first assisted with a match-fixing­ investigation in November 472013. 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 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 world-­wide, 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

193 178 C. Ordway 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

194 Investigative cooperation in Australia 179 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

195 180 C. Ordway 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-new-­zealand-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/ managing-­sport/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 within the contest, or of a points spread; (b) deliberate underperformance; (c) with- drawal (tanking); (d) an official’s deliberate misapplication of the rules of the 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 the above or placed by a gambler who has recruited such people to manipulate an 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/F6DB8 637F05C9643CA257C310021CCE9/$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 $36 billion’, media release, 18 December, www.ministerjustice.gov.au/Mediareleases/Pages/2015/FourthQuarter/18-December-­ 2015-Serious-and-organised-­ crime-costing-­ Australia-36-billion.aspx.­ 20 Eligo National Task Force, ‘Money laundering’, www.austrac.gov.au/sites/ default/files/documents/eligo_ml_fact_sheet.pdf; Australian Transaction Reports and Analysis Centre 2011, Money laundering in Australia, www.austrac.gov.au/ publications/corporate-­publications-and-­reports/money-­laundering-australia-­2011. 21 Unger, B. and Busuioc, E.M., 2007, The scale and impacts of money launder- ing, Edward Elgar Publishing. 22 See ‘Case studies: gambling’, in Australian Transaction Reports and Analysis Centre 2013, AUSTRAC typologies and case studies report 2013, pp. 61–64, www.austrac.gov.au/sites/default/files/documents/typ13_full.pdf. 23 See Richards, J.R., 1998, Transnational criminal organizations, cybercrime, and money laundering: a handbook for law enforcement officers, auditors, and fin- ancial investigators, CRC press; Schopper, M.D., 2002, ‘Internet gambling, electronic cash and money laundering: the unintended consequences of a monetary control scheme’, Chapman Law Review, vol. 5, no. 1, pp. 303–330; Reuter, P., 2004, Chasing dirty money: the fight against money laundering, Peterson Institute; Schneider, F. and Windischbauer, U., 2008, ‘Money launder- ing: some facts’, European Journal of Law and Economics, vol. 26, no. 3, pp. 387–404. 24 A key report estimated that ‘$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 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’, , 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 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-of-­match- 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%20 Strategy%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/law-­ enforcement-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.

202 Chapter 4: Legislation and regulatory measures

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

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

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

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

References: Australian Parliament House (APH). (2018). National Integrity Commission Bill No. 2, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Res ult?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

206 ‘class action’ allows plaintiffs to fighting against breast cancer. A battle with cancer and a woman Armstrong’s by inspired men four are plaintiffs The ments. the books contained false state- Armstrong was doping and that lawsuitknewallegesbothThe Stapleton is Armstrong’s agent. the US Postal Service cycling team. Sports, company Tailwind formed to manage the of of fiction’. works were books that these known have should or when, if fact, Defendants knew autobiography) (orbiography and honest works of nonfiction and sold [the books] as truthful alleging that defendants ‘labeled injunctive, equitable and declaratory’ ‘damages, relief, seeks 2:13-cv-00116-MCE-KJNcase California, of DistrictEastern the for Court District US the at March 7 non-fiction. 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Standard International its and System (ISTUE);Exemptions Use Therapeutic forStandard International its (ADAMS); Management and Administration Doping Anti- the Information of use its(ISPPPI); Personal and Privacy of Protection the for WADA’s Code; the International to Standard revisions latest the to objections its outlines FootballLeague and more. Doping Norway, Anti- the Australian Agency, British Anti-Doping Olympic the Olympic Association, US the Japan Equestre Committee, the Now, Internationale, Change Cycling Fédération Rugbythe Football Union, the Athletics AgenturDopingDeutschland, of Federations, International the Nationale Anti- Association the UKAD, Court of Arbitration for Sport, World Anti-Doping Agency, the nationalsports associations. Intheannex totheletter, the e sekr icue the include speakers Key lawreport PUBLICATION #6 THENEWSLETTER FOR THE SPORTS BUSINESS VOLUME11 ISSUE 03 dio wt Fed Fisher Field WaterhouseLLP. with Advisor Privacy Kupczyk,Dominika a theregulators might take”, said influential in view of the highlyaction are they View),Street have(e.g.casesshownGoogle previous as but, binding not notmandatory. is ADAMS that andmeeting’ by WADA during the subgroup mandatory, confirmed‘asnot the that is Passport Biological Athlete state to Code the requestsalsoday).Itper hour and training locations plus one competition living,(currently four hours in a 24-hour period Whereabouts can only relate to only indefinitely if anonymised. a maximum of eight years, and samplescanonlystoredbe for the dopingbody concerned. by national legislation of the anti- prescribed with, unless complied are doping il lo e anti-doping by WorldSports Law Repor led be sessions networking also will There doping. combat to tool potential a as suggested been (lie detector) testing, which has ings and to undergo polygraph anti-dopingmockin proceed- also allow delegates to take part will sessions Break-out more. anti-dopingprotectionandin data doping, combat to ment enforce- law and intelligence of useAnti-Doping Code,the proposed reforms of the World cycling, in reforms proposed “The Art. 29 WP opinions are identifiable that states It e ssin wl examine will sessions Key WWW.E-COMLAW.COM MARCH2013 t. 207 DOPING ACC report: why ASADA needs teeth The Australian Crime Commission The international performance The Australian Sports Anti- released a February report alleging enhancing drug trade is reportedly Doping Authority (ASADA) is the worth billions1. The Australian Australian National Anti-Doping that ‘widespread’ doping is Crime Commission (ACC) Organisation under the World occurring in Australia and that dropped a bomb on Australian Anti-Doping Code (the ‘Code’), organised crime is involved. This sport in the form of its: ‘Organised and is a Commonwealth has led to the ASADA Amendment Crime and Drugs in Sport’ report government statutory authority. on 7 February 20132. The report ASADA’s vision is: ‘to be the Bill 2013, which suggests greater claimed that ‘widespread’ doping is driving force for pure performance investigative powers for the occurring in Australia: in sport’. ASADA’s purpose is to: Australian Sports Anti-Doping ‘The ACC has found, on the basis ‘protect Australia’s sporting Authority (ASADA). Catherine of a limited and focused integrity through the elimination Ordway, a Sport & Anti-Doping examination of one component of of doping’7. Outspoken scientist the PIEDs3 market, that the market and anti-doping campaigner, Dr. Consultant who was formerly a has evolved significantly in recent Mike Ashenden, was quoted last Director at ASADA, explains why years to include peptides and month as expressing his these and other powers are needed hormones. These substances, disappointment in ASADA as: “a to help ASADA do its job. which are WADA-prohibited, are prodigy that has not yet delivered being used by professional athlete on its exciting potential...for some in a number of professional reason, things just haven’t clicked, sporting codes. Organised crime and the results they’ve produced so has been found to have a tangible far have been pretty modest’’8. and expanding footprint in this ASADA is established under the market, and their activity is being ASADA Act 2006 (amended 2011) facilitated by some coaches and and Regulations (including the support staff of elite athletes, who National Anti-Doping Scheme)9. have orchestrated and/or The challenges for anti-doping condoned the use of prohibited organisations (ADOs), including substances and/or methods of ASADA, are to disrupt and detect administration.4’ doping (anti-doping rule violations It is clear that doping cannot be in the Code terminology) through detected by testing alone. The information and intelligence World Anti-Doping Agency obtained from the following: (WADA) promotes Australia as l Athletes and Athlete Support having developed a revolutionary Personnel as defined by the Code, anti-doping model that solidifies thereby within the ADO cooperation between the anti- jurisdiction. doping authority and other l Government organisations, government agencies. WADA lauds including Law Enforcement the ‘Australian Model’ on its Agencies [LEAs]. website and in its publications5. l Non-governmental WADA is also of the view that a organisations and professional key component in the investigative associations. and intelligence capabilities is the l Individuals not within the establishment and maintenance of jurisdiction of the ADO. relationships between investigative ASADA currently has no power agencies across Government. This to compel any of the classes of position is reflected in WADA’s person above to provide it with ‘Guidelines for Coordinating information which ASADA may be Investigations’6. So, how can able to use to carry out its Australian sport respond to the functions. Australian Olympic allegations from one of the most Committee (AOC) President, John powerful law enforcement agencies Coates, has been calling for in the country? enhanced investigative powers to world sports law report march 2013 13 208 DOPING Headline

be granted to ASADA (and its ASDA’s functions were focused on otherwise, ASADA must rely on predecessor) from as early as advocacy and the testing and the agreements in place with the 200010. education of athletes and athlete major National Sports There is currently a proposal support personnel. Significantly, Organisations (NSOs) requiring before the Commonwealth ASADA was also given the power the NSOs to: ‘immediately advise parliament that the ASADA Act be to investigate doping allegations ASADA of any alleged anti-doping amended to allow for, amongst and present Anti-Doping Rule rule violations and [to] provide other things, the ASADA CEO to Violation (ADRV) cases at assistance to ASADA in any compel witnesses to give Catherine hearings either before the Court of investigation that ASADA might Ordway evidence11. In accordance with Arbitration for Sport (CAS) or reasonably request’21. If an NSO Australian parliamentary process12, other sports tribunals under the fails to comply with this the ASADA Amendment Bill 2013 Code. This new Authority assisted agreement, ASADA only has was introduced into the Senate the Howard Government to fulfil limited legal (e.g. breach of (upper house) and, following the its election17 and treaty18 contract) and political avenues to first reading of the Bill, was obligations. This development was pursue (e.g. embarrassment in the immediately referred to the Senate also in keeping with the growth in media, with the Minister for Sport Rural and Regional Affairs and non-policing public sector agencies or the Australian Sports Transport References Committee performing investigative Commission). The NSO in turn for consideration. Interested functions19. has jurisdiction over the Athletes parties were invited to make and Athlete Support Personnel via submissions to the Senate ASADA’s limitations their membership contracts (club, Committee in relation to the Bill, ASADA does not possess powers of state and then national) or and a public hearing was held on 1 compulsion, or of search and employment arrangements. March 201313. seizure. ASADA must therefore rely on information derived from sport Information sharing with external History anti-doping rules and cross- organisations (including LEAs) The Australian Sports Drug government agreements. ASADA’s ASADA’s legislation includes Agency (ASDA) was the original current limitations became more expanded information disclosure National Anti-Doping obvious through the release of the provisions and specific references Organisation for Australia ACC ‘Organised Crime and Drugs to allow ASADA to share established by the ASDA Act 1990. in Sport’ report in February 201320. information with sports and law In 2004, a new statutory authority The ACC has coercive powers to enforcement bodies, e.g. Australian was proposed to replace ASDA. investigate criminal matters at the Customs, the State and Federal The creation of ASADA was a key national level, particularly focused Police, Therapeutic Goods recommendation of the 2004 on organised crime. The ACC has Administration, National Anti- Anderson inquiry into the use of referred the matters outlined in its Doping Organisations and drugs by Australia’s track cycling report to the State and Federal International sports Federations22. team14. Justice Anderson police forces, and to ASADA (in This is a one directional power, recommended, with respect to the relation to anti-doping). which needs to be replicated in the investigation of doping offences in Unfortunately, ASADA cannot each of the agencies ASADA wishes Australian sport, that: compel the Athletes or Athlete to receive information from ‘There should be a body which is Support Personnel featured in the (including through Memorandums quite independent of the AIS15 and ACC report to provide any further of Understanding). It was intended of the Australian Sports information, so unless they that this information would enable Commission and of the sporting voluntarily come forward, there is ASADA to identify athletes or bodies themselves with the power no guarantee that any of the support personnel suspected of and duty to investigate suspected matters identified can be doping, and then concentrate its infractions such as substance abuse progressed. resources on them, whether via and to carry the prosecution of further investigation or targeted persons against whom evidence is Information sharing with sports drug testing. Sharing information obtained.16’ organisations between government agencies is ASADA replaced ASDA on 14 In order to investigate those consistent with the ‘Whole of March 2006 and took over the matters within its jurisdiction, Government’ approach23. functions performed by ASDA. referred to it by the ACC or

14 world sports law report march 2013 209 DOPING

Barriers to information sharing It would be of implement in its future 1. WADA Media Release, ‘Interpol and with government agencies assistance to information handling practices30. It WADA Team Up to Fight Cheats’, 2 October 2006, www.wada- (including LEAs) ASADA if this would be of assistance to ASADA if Bill was ama.org/en/newsarticle.ch2? An expansion to ASADA’s powers amended to this Bill was amended to allow for articleId=3115331. E.g. ‘International as anticipated by the 2013 Bill will allow for data-matching exercises to be Law Enforcement Operation Targets Underground Manufacture of Anabolic assist to overcome one of its data- conducted to investigate anti- Steroids, “Operation Raw Deal” Nets 124 current challenges: reliance on matching doping rule violations (ADRVS), Arrests Nationwide To Date’, US LEAs. In order to have matters exercises to including - for example - to Department of Justice, 24 September be conducted thoroughly investigated, ASADA examine whether public funds are 2007 www.usdoj.gov/opa/pr/2007/ to investigate September/07_crm_753.html must attract the attention of anti-doping being diverted from the PBS 2 .www.crimecommission.gov.au/ organisations which have scarce rule violations inappropriately. publications/other/organised-crime- resources and higher priorities for drugs-sport Summary 3. Performance and Image Enhancing community safety (e.g. murders, Drugs. child pornography, and the I am supportive of ASADA being 4. www.crimecommission.gov.au/ trafficking of non-performance provided with powers to compel publications/other/organised-crime- enhancing drugs, including ice24 witnesses to provide information drugs-sport at p36. 5. www.wada-ama.org/en/dynamic.ch2? and heroin). Even if the LEAs are relating to potential anti-doping pageCategory.id=694. See also the joint keen to provide information to rule violations. Many of the WADA & Interpol press release: ‘WADA ASADA, there are additional human rights, privacy and Applauds Actions Targeting the Illegal barriers to sharing information, philosophical concerns raised with Manufacture and Distribution of Doping Substances New Era in Anti-Doping both internally and externally. me by some of my legal and Must Involve Coordination with Law One of the additional challenges sporting colleagues have been fully Enforcement’ and Ings R, (2007), Play to inter-agency cooperation is addressed in the parliamentary True, WADA Issue 1, p10-11 31 www.wada- Australia’s privacy legislation. This report into human rights . In my ama.org/rtecontent/document/Play has not been addressed in the submission to the Senate True2007_BeyondtheAthlete_En.pdf current draft Bill. For example, in Committee, I have also suggested 6. www.wada-ama.org/en/World-Anti- 2008, ASADA attempted to data- that it may also be of benefit for Doping- 25 Program/Governments/Investigation-- match records with Medicare to ASADA to be granted powers of Trafficking/Investigations/Guidelines/. See determine whether doctors were ‘search and seizure’, and for the also Senator George Mitchell in his prescribing performance recently introduced information- findings into the illegal use of steroids in Major League Baseball (USA): Mitchell enhancing drugs to athletes for sharing facilitation mechanism - GJ, (2007) ‘Report To The Commissioner non-therapeutic purposes, the National Collaboration Of Baseball Of An Independent particularly where those substances Framework - be used more Investigation Into The Illegal Use Of may be subsidised by the effectively in relation to ASADA32, Steroids And Other Performance Enhancing Substances By Players In Pharmaceutical Benefits Scheme including extending the Privacy Major League Baseball’, (PBS). Other Australian Commissioner’s data-matching in www.primerahora.com/XStatic/ Government agencies data-match accordance with information primerahora/docs/espanol/ on a regular basis, and far in excess handling guidelines. I have also informemitchell4.pdf 7. www.asada.gov.au of the number of records referred suggested that we have another 8. S Lane, ‘ASADA: Is it Working’, by ASADA, and yet ASADA’s look at whether ADRVs should be Sydney Morning Herald, 23 February efforts in that instance were made criminal offences under the 2103, www.smh.com.au/sport/asada-is- 26 it-working-20130222-2ex1r.html#ixzz2 blocked . Before a response was Crimes Act, and thereby whether MC344dup received from Medicare, concerns other benefits may flow from that, 9. www.comlaw.gov.au/Details/ relating to the privacy of medical including applying the relevant C2011C00690 records were raised in the media27. provisions of the Proceeds of 10. See the Australian Olympic Committee submission to the ASADA Bill Following an investigation initiated Crime Act to ASADA. The latter 2013, dated 21 February 2013, at by the then Sports Minister, Kate suggestion is a bigger discussion www.aph.gov.au/Parliamentary_Business Ellis28, questions were asked of for another day! /Committees/Senate_Committees? url=rrat_ctte/sports_anti_doping/ ASADA by the Commonwealth submissions.htm Catherine Ordway Sport & Anti-Doping Parliament Senate Estimates 11. www.aph.gov.au/Parliamentary_ Consultant 29 Business/Bills_Legislation/Bills_Search_ Committee . This led to the Lecturer and PhD Candidate, National Results/Result?bId=s902 Privacy Commissioner conducting Institute of Sport Studies, University of 12. www.aph.gov.au/About_Parliament/ Canberra an investigation and handing down Senate/Powers_practice_n_procedures/ [email protected] recommendations for ASADA to briefs/brief08 world sports law report march 2013 15 210 DOPING

13. www.aph.gov.au/Parliamentary_ Australian and New Zealand Journal of (Parliamentary Scrutiny) Act 2011 Business/Committees/Senate_ Criminology, 27 (1994), p111-132. ASADA Amendment Bill 2013 Second Committees?url=rrat_ctte/sports_anti_ 20. www.crimecommission.gov.au/ Report of 2013’ dated February 2013, doping/submissions.htm publications/other/organised-crime- available at 14. Australian Sports Anti-Doping drugs-sport www.aph.gov.au/Parliamentary_Business Authority Bill 2005, Bills Digest no. 79 21. An example of this type of /Committees/Senate_Committees? 2005-06, agreement is found at Appendix D of the url=humanrights_ctte/reports/index.htm www.aph.gov.au/library/Pubs/BD/2005- ‘Cycling Australia Review’ conducted by 32. http://agimo.gov.au/collaboration- 06/06bd079.htm the Hon James Wood AO QC, released services-skills/national-collaboration- 15. Australian Institute of Sport. on 14 January 2013, at framework/ 16. The Honourable R Anderson QC, www.regional.gov.au/sport/resources/ ‘Second Stage Report to the Australian reports/review-of-cycling-australia.aspx Sports Commission and to Cycling 22. ASADA Act, 2006, Australia’, (Anderson Report), Canberra, www.comlaw.gov.au 27 October 2004, Department of 23. See also the National Collaboration Communications, Information Framework cited. W G Carson, ‘Whole Technology and the Arts, 2004, of Government and Crime Prevention for http://fulltext.ausport.gov.au/fulltext/2004 Victoria’, August 2003, Department of /feddep/Anderson_report.asp (originally Criminology, University of Melbourne, p1- located at 40, www.criminology.unimelb.edu.au/ www.dcita.gov.au/sport/publications/ staff/kit_carson/whole-government- anderson report). crime-prevention.pdf. H Goldstein, 17. The Howard Government’s 2004 ‘Problem-oriented policing: the basic election policy, Building Australian elements’ in ‘Problem-Oriented Policing’ Communities through Sport, included a (1990), McGraw-Hill, New York, p32-49 requirement on sporting organisations to at p47. implement anti doping policies and 24. Methamphetamine, or ‘crystal meth’. practices consistent with the World Anti- 25. Medicare is Australia’s universal Doping Code as a condition for Federal health insurance scheme. Government funding. Australian Sports 26. J Magnay, ‘Minister orders review’, Anti-Doping Authority Bill 2005, Bills and ‘Medicare enlisted for fight against Digest no. 79 2005-06, “loophole seekers”‘, Sydney Morning www.aph.gov.au/library/Pubs/BD/2005- Herald, 15 March 2008, 06/06bd079.htm. See also the 7 www.smh.com.au December 2005 reference to; ‘the 2004 27. S Parnell, ‘Investigators scouring election policy Building Australian athletes’ medical records for drug Communities Through Sport’, cheats’, The Australian, 14 March 2008, http://parlinfoweb.aph.gov.au/piweb/ www.theaustralian.com.au/news/ view_document.aspx?id=2537041& secret-anti-doping-probe/story- table=HANSARDR e6frg7mo-1111115793892 18. See www.wada-ama.org/rtecontent/ 28. S Parnell, ‘Doping Checks May End’, document/copenhagen_en.pdf and The Australian, 15 March 2008, www.wada-ama.org/rtecontent/ www.theaustralian.com.au/news/doping- document/UNESCO_Convention.pdf checks-may-end/story-e6frg7mo- 19. Examples of public agencies having 1111115803868 investigative functions include: the 29. See Senate Estimates Committee Australian Taxation Office, Centrelink, hearing transcript, 5 June 2008, Medicare Australia, the Office of National www.aph.gov.au. See also S Parnell, Assessments, the Australian Securities ‘Secret List of Athletes Led to Drugs and Investment Commission, the Inquiry’, The Australian, 24 July 2008, Australian Commission for Law www.theaustralian.com.au/news/secret- Enforcement Integrity, the Australian athletes-list-led-to-inquiry/story- Competition and Consumer e6frg7mo-1111117000573 Commission, Customs Australia, 30. News 22 July 2008, ASADA website, Comcare, Auscheck, and the ‘On 30 June 2008 the Australian Privacy Department of Families, Housing, Commissioner (OPC), contacted ASADA Community Services and Indigenous outlining three recommendations...’, Affairs. See P Fairchild, ‘The emerging www.asada.gov.au police complex: Hoogenboom and 31. ‘Examination of legislation in Australian Inter Agency Cooperation’, accordance with the Human Rights

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16 world sports law report march 2013 211 PUBLICATION #7

INTEGRITY Catherine Ordway Senior Consultant [email protected] Snedden Hall & Gallop, Australia Senior Fellow, University of Melbourne, Law School Sports Integrity in Australia: legislating into a position of strength Australia 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.

Protecting sports integrity the need for good governance and and inter-agency collaboration through legislation defined this through its Mandatory 3. Good governance: transparency Following a eight month review into Sports Governance Principles (‘MSGP,’ and accountability (including Australia’s sports integrity arrangements, updated June 2015). MSGP Principle 3 gender equity) instigated by the former federal is ‘Sport transparency, reporting and 4. Awareness and education Sports Minister, Greg Hunt5, a range of integrity15.’ Recognising perhaps that 5. Sport industry regulatory frameworks recommendations have been provided this Principle did not go far enough, 6. Early warning systems for the government to consider6. Led by one of the four key priority areas of the 7. Whistleblowing and reporting systems the Honourable James Wood AO QC7, Plan is: ‘Safeguarding the integrity of 8. Integrity units, ofcials and networks the panel consisted of David Howman sport - A fair, safe and strong sport sector 9. Legislation and the role CNZM8 and Ray Murrihy9. The panel free from corruption16.’ Sport Australia of penal measures was assisted by adjunct panel members seeks to be “an exemplar of sports 10. Asset protection: athlete welfare; and Jo Setright10, and The Honourable integrity” and to demonstrate leadership 11. Research and facilitation of Dr Annabelle Bennett AO SC11. The in “the national approach for a safe, new ideas and approaches. ensuing report (referred to as ‘the Wood ethical and inclusive sport industry17.” Review’) identified five key themes: The Government has formed a Sports The following will examine a selection Integrity Review Taskforce to develop of the Wood Review recommendations, 1. a stronger national response and implement its response to the Wood focusing on the ninth solution proposed to match fixing; Review. The Plan envisages that Sport above, namely, bolstering current 2. an Australian Sports Australia will support the Sports Integrity legislative provisions as one of the ‘tools’ Wagering Scheme; Review Taskforce in this role, continue to combat threats to the integrity of sport. 3. enhancing Australia’s anti- to encourage sports organisations to doping capability; implement best practice governance, Australia’s international obligations 4. a National Sports Tribunal; and and establish Sport Safe Australia18. As a founding member of the United 5. a National Sports Integrity In 2016, University of Melbourne Nations (‘UN’) in 194520, Australia Commission. academic, Hayden Opie and I19 outlined ratified the UN Conventions against a number of possible approaches to Transnational Organized Crime (‘UNTOC’) The federal Minister for Sport, Bridget mitigate the risk of corruption in sport. in 200421 and the following year, against McKenzie12, launched the new strategic Proposed, in efect, as a range of ‘tools Corruption (‘UNCAC’)22. Professor plan for sport in Australia, Sport 2030: in the toolbox’ to strengthen the integrity Nikos Passas drafted the Legislative National Sports Plan (‘the Plan’), of sport, on-field and of-field, under Guides for the implementation of the together with a name change for the the heading ‘Solutions: anti-corruption UNCAC and the UNTOC. Together we Australian Sports Commission (now Sport strategies and their application to sport,’ previously considered the capacity Australia) on 1 August 201813. The Plan we discussed the following ideas: for these Conventions to protect replaced the Government’s strategic sports integrity23. Countries such plan for sport, the Winning Edge (2012- 1. Leadership: ethical decision-making as Australia have a responsibility in 2022)14. The Winning Edge emphasised 2. Partnerships: information-sharing implementing these Conventions, to

16 WORLD SPORTS ADVOCATE 212 enact legislation to combat corruption, The most comprehensive of the Wood appropriate practices in responding including for the sports industry. Review recommendations relates to the to possible integrity breaches40.’ establishment of a new umbrella body, Specifically relating to sport, Australia has the National Sports Integrity Commission While the Wood Review acknowledges also ratified the Council of Europe (‘CoE’) (‘NSIC’) and a National Platform for that ‘sports integrity’ is much broader Anti-Doping Convention in 199424 and information sharing32. It is anticipated that than match-fixing and doping41, it is the UNESCO International Convention the NSIC would need to be established not specified whether the converse Against Doping in Sport in 200625, as a statutory authority, or equivalent, of ‘[…] The manifestation of the ethics resulting in the creation of the Australian as the Wood Review recommends that and values which promote community Sports Anti-Doping Authority (‘ASADA’) both ASADA and the NSIC be accorded confidence in sports’ is ‘sports discussed below. As a long-standing ‘status as a law enforcement agency33.’ corruption’ as outlined by the UNCAC, UNESCO Member State26, Australia has It has previously been noted that not for example, and therefore would fall participated in the World Conferences being designated as a law enforcement within the NSIC’s jurisdiction. The Wood of Sports Ministers (‘MINEPS’). The May agency has severely hampered ASADA’s Review states that the NSIC’s ‘monitoring, Australia has recently conducted a review of its ‘Sports Integrity Arrangements.’ The resulting report 2013 MINEPS V adopted a range of ability to fully function, as it means intelligence and investigations’ function recommendations calling on UNESCO that it was not permitted to receive relates to ‘possible doping activity and was presented to the Commonwealth Government in March 2018 and was made publicly available on 1 Member States to enact legislation to and share intelligence with domestic manipulation of sports competitions 1 August 2018 . This date is significant, because, in the same announcement, the current federal Minister for protect the integrity of sport from the and international regulatory, sporting and related corruption [emphasis Sport, Bridget McKenzie2, launched the new National Sports Plan for Australia and a name change for the threat posed by transnational organised and law enforcement bodies34. added].’ Beyond what will remain the Australian Sports Commission (now Sport Australia)3. Known as the ‘Wood Review,’ the 340 page report crime, doping, the manipulation of sports remit of on-field referees, judges and competitions and corruption27. While It is intended that the NSIC should umpires42, fully extended, the NSIC’s and its 52 recommendations are proclaimed to be “the most comprehensive analysis of Australia’s sports 35 4 also non-binding, it is indicative of the have three primary areas of focus : scope could include all other on- integrity arrangement ever undertaken .” Catherine Ordway, Senior Consultant at Snedden Hall & Gallop growing concern that the UNESCO field cheating, beyond doping and and Senior Fellow at the University of Melbourne, outlines the state of integrity in Australian sport in light of International Charter of Physical 1. Sports Wagering Regulation as match-fixing, including classifications the findings of the review and its recommendations, the new strategic plan for sport, and discusses how the Education, Physical Activity and Sport part of a proposed Australian (whether via age, weight, gender and proposed legislative changes might contribute to broader anti-corruption strategies in Australian sport. (1979) was revised in 2015 to include a Sports Wagering Scheme: As a para-sports)43, and athlete protection reference to the importance of protecting law enforcement agency, the NSIC against abuse and exploitation (whether the integrity of sport for the first time28. would have the power to collect financial, legal, physical, sexual or and use ‘sensitive information’ and emotional for example)44. However, the UNESCO does not have a convention material alleging criminality. It is not Wood Review does not clarify whether, covering match-fixing, however the stated whether the additional phrase beyond protecting the sports gambling Council of Europe Convention on ‘including oversight as to sports’ industry, which dominates the Wood Manipulation of Sport Competitions has implementation and adherence to Review45, the NSIC will have the power been prepared by the Enlarged Partial appropriate integrity policies’ is limited to investigate of-field corruption where Agreement on Sport29. Australia has been to the wagering context, or more it cannot otherwise be referred46. one of the non-Member States assisting broadly relates to governance36. the Council of Europe to draw up the 2. Intelligence: The NSIC will be The Wood Review notes the arguments Convention30. Opened for signature responsible for information gathering made around the importance of sport in the Swiss city of Macolin in 2014, it and both operational and strategic autonomy47, however examples both is known as the Macolin Convention. intelligence functions. Investigations in Australia and internationally abound The Convention requires another two are to be referred to either the that demonstrate the inadequacy of the states to ratify so that it can be entered appropriate law enforcement agencies criminal law in holding those responsible into force31. It would therefore assist in criminal matters, or to sporting for corruption in sport to account48. In the global work against match-fixing, organisations for code of conduct the absence of a national anti-corruption and the national strategy, if Australia issues37. What is not clear, as WADA body, the NSIC needs both self-initiating became a signatory. As will be discussed found in attempting to restore trust and responsive powers49 to investigate below, the Wood Review recommends following the doping scandal in and regulate behaviour including: vote- that Australia becomes a signatory. Russia38, is where the NSIC should rigging, extortion and bribery (e.g. in the refer matters when corruption within awarding of event hosting rights or player Australian sports integrity legislation the sporting organisation is alleged. transfers), fraud and misappropriation The Wood Review notes that while 3. Policy and Program Delivery: of membership organisation funds (e.g. there are significant gaps in the sports Recommendation 49 suggests through property, procurement, stafng, integrity framework, there is also that the NSIC should become salary cap breaches, expenses and duplication throughout the Australian ‘responsible for centrally coordinating remuneration), pork barrelling and sports sporting ecosystem, which includes sports integrity policy functions development grants processes, nepotism, ASADA, Sport Australia (including previously executed by a number media rights, sponsorship and ticketing the Australian Institute of Sport), the of diferent organisations including impropriety, or poor accountability and National Integrity in Sport Unit and [Sport Australia], the Goods Sports governance. I would therefore also Ofce of Sport, the Australian Sports Program (through the Alcohol and expand the whistle-blower protections Foundation, the State and Territory Drug Foundation) and the National recommended, beyond ASADA, to sport departments and institutes, Play Integrity of Sport Unit39.’ It appears include any sports corruption issues50. by the Rules and the integrity units of to be envisaged that the NSIC will the professional clubs, national sports partner with a range of organisations Recommendations to amend organisations and peak bodies including to enhance existing outreach and the anti-doping legislation the Australian Olympic Committee and education programs and assist In compliance with its obligations the Australian Paralympic Committee. ‘sports in implementing policies and under, first the Council of Europe, and

A Cecile Park Media Publication | September 2018 17 213 INTEGRITY continued then later, the UNESCO, anti-doping objections led by the Australian Athlete’s standardised legislation throughout conventions, Australia has enacted Alliance, lawyers and academics58. The Australia hasn’t been enacted66. For legislation aimed at what has been self-incrimination exclusion currently this reason, the Wood Review’s first coined as ‘cheating to win51.’ Australia applies to persons within ASADA’s recommendation is that Australia is believed to be one of only two jurisdiction in relation to the production ratifies the Macolin Convention67. jurisdictions in the world that establishes of ‘documents and things,’ and the Following the ratification of the Macolin its national anti-doping organisation, Wood Review argues that athletes and Convention, national legislation can ASADA, through an act of Parliament52. athlete support personnel are already create consistency within Australia However, in line with the World Anti- denied this right through the contractual and in a coordinated global response. Doping Agency (‘WADA’)’s position, arrangements with their national sporting The Wood Review recommends that, Australia does not consider it appropriate organisations59. One possible scenario in line with current legislation in New to criminalise doping in sport, and it is where this amendment could be of South Wales: ‘ofences relating to the not addressed in the Wood Review53. benefit to its detractors, however, is manipulation of sports competitions where third parties could be compelled and related corruption be introduced Perhaps in anticipation of a bill being to provide evidence that serves to by the Australian Government and passed providing civil law immunity support or exonerate another person. inserted into the Criminal Code for WADA ‘including its directors, Act 1995 and that harmonisation of ofcers and employees’ for ‘any Match-fixing legislation Commonwealth and state and territory decision (and resulting activity) made Taking on board the mounting evidence ofence provisions be encouraged68.’ in connection with its mission to fight that Australian sport, primarily in There would appear to be no reason to doping in sport internationally’ by the the men’s professional codes, was delay signing the Macolin Convention Canadian parliament in Quebec (where at risk of manipulation instigated by once the Government has completed WADA is based)54, the Wood Review organised criminals, the Commonwealth its response to the Wood Review later recommends extending this immunity, Government took decisive action60. this year. In the meantime, Australia already applicable to ASADA, to the Without authority to enact national will be represented at the Council of national sporting organisations ‘in their legislation under the constitutional Europe’s third ‘International Conference exercise of Anti-Doping Rule Violation external afairs power61, the next best on the fight against the manipulation functions55.’ A number of commentators solution was to encourage the States and of sports competitions - Promoting and have queried whether provisions like Territories to enact harmonised legislation. Implementing the Macolin Convention’ this, that efectively make organisations In June 2011, the Australian Council of in Strasbourg in September 201869. less accountable, in an environment Sport and Recreation Ministers adopted where athletes already feel powerless, the National Policy on Match-Fixing in Next steps are necessary or proportionate56. Sport (‘the Policy’)62. Respondents to the Sport Minister McKenzie anticipates Wood Review commended Australia’s that the Government will provide its A similar impost is sought by the Wood “proactive approach” and described response to the Wood Review by Review in recommending that the ASADA its sports integrity system as a global the end of 201870. The Wood Review Act be amended to exclude the right held “shining light63.” As required by the is certainly comprehensive, and its by other members of the community in Policy64, by November 2011 the Attorneys recommendations provide a range of policing investigations ‘to claim privilege General met to discuss appropriate solutions that will strengthen current against self-incrimination when answering sanctions, and agreed that the legislative provisions. However, as I a question or providing information to gambling-related match-fixing behaviour have outlined above, in order to be ASADA57.’ This exclusion was rejected defined in the Policy would attract ‘a fully prepared to address the range by the Parliament in previous rounds maximum of 10 years imprisonment65.’ of sports corruption issues that of amendments, and the protections have presented internationally, the against’“non-direct or derivative use’ However, as set out in the Wood recommendations contained in the are unlikely to satisfy the chorus of Review and by other commentators, Wood Review do not go far enough.

1. http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review- 11. Chancellor of Bond University and a Court of Arbitration for Sport of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin arbitrator, nominated by the Australian Olympic Committee, Australian 2. https://www.aph.gov.au/Senators_and_Members/ Paralympic Committee and Commonwealth Games Australia. Parliamentarian?MPID=207825 12. https://www.aph.gov.au/Senators_and_Members/ 3. http://www.bridgetmckenzie.com.au/Media/Media-Releases/ Parliamentarian?MPID=207825 ID/1175/National-Press-Club-Address-Shooting-for-Success 13. http://www.bridgetmckenzie.com.au/Media/Media-Releases/ 4. http://www.health.gov.au/internet/main/publishing.nsf/Content/the-review- ID/1175/National-Press-Club-Address-Shooting-for-Success of-australias-sports-integrity-arrangements#.W2FYqylV59w.linkedin 14. McKenzie, B (2018). 5. http://www.health.gov.au/internet/ministers/publishing. 15. https://www.ausport.gov.au/ais/australias_winning_edge/mandatory_ nsf/Content/health-mediarel-yr2017-hunt076.htm sports_governance_principles/sport_transparency,_reporting_and_integrity 6. http://www.health.gov.au/internet/main/publishing.nsf/Content/ 16. https://www.ausport.gov.au/nationalsportsplan the-review-of-australias-sports-integrity-arrangements 17. Sport Australia also used this phrase in the position 7. Former Judge of the Supreme Court of New South Wales and former advertisement for the role: ‘Australian Sports Commission Chairperson, Law Reform Commission of New South Wales. - Deputy General Manager, Safe & Ethical Sport.’ 8. Former Director-General, World Anti-Doping Agency 18. National Sport Plan (2018) pp44-47. Sport Safe Australia is one of and current Chair, IAAF Athletics Integrity Unit. the recommendations from the report by the Royal Commission 9. Former Racing New South Wales Chief Steward. into Institutional Responses to Child Sexual Abuse (2017). 10. Head of Legal, Business Afairs and Integrity at the Football Federation 19. Ordway, C. and Opie, H. (2016) ‘Integrity and Corruption Australia (‘FFA’), nominated by the Coalition of Major Professional in Sport,’ in Schulenkorf & Frawley (eds) Critical Issues in and Participation Sports, of which the FFA is a member. Global Sport Management, Routledge, pp38-65.

18 WORLD SPORTS ADVOCATE 214 20. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/ undoubtedly the biggest threat to sport after doping.” Wood Review p29. Parliamentary_Library/pubs/BriefingBook43p/engagementun 46. At p9 of the Wood Review there is a reference to: ‘those other 21. Australia ratified the UNTOC on 27 May 2004: https://treaties.un.org/pages/ forms of manipulation that are directed towards securing ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&clang=_en other sporting advantages [where] a role might be preserved 22. Australia ratified the UNCAC on 7 December 2005: https://www. for monitoring of such activity by the proposed NSIC.’ unodc.org/unodc/en/corruption/ratification-status.html 47. Wood Review pp56-57. 23. http://www.track.unodc.org/Pages/allEvents.aspx?index=51 48. Many examples, including: 1. The failure of the German prosecutors to 24. Australia ratified the CoE Anti-Doping Convention on 5 October finalise their investigation into the broadcasting deals entered into by the 1994, https://www.coe.int/en/web/conventions/full-list/-/ International Federation President, Moustafa, allowing for his conventions/treaty/country/AUT?p_auth=fpBXK8Q fourth re-election: See summary in Ordway, C. Presentation, Crime and 25. Australia ratified the UNESCO Convention on 17 January 2006, http:// Sport Research Conference (2012) University of Canberra, published by www.unesco.org/eri/la/convention.asp?KO=31037&language=E Play the Game, Knowledge Bank, 23 April 2012, http://www.playthegame. org/news/news-articles/2012/new-in-knowledge-bank-threats-to-sporting- 26. Australia joined UNESCO on 4 November 1946, http:// integrity-doping,-match-fixing-and-corruption/; Handball Planet, Dr Hassan www.unesco.org/eri/cp/ListeMS_Indicators.asp Moustafa Re-elected for IHF President (2017, 11 Nov) http://www.handball- 27. http://www.unesco.ru/en/?module=news&action=view&id=398 The planet.com/dr-hassan-moustafa-re-elected-for-ihf-president/ 2. FIFA Declaration of Berlin appears in full on the Australian Department granting of the hosting rights for the men’s World Cup to Qatar and Russia of Health website: http://www.health.gov.au/internet/main/ despite evidence of corrupt behaviour by both winning and losing bids, eg: publishing.nsf/Content/declaration-of-berlin-mineps-v Although Blake, H., & Calvert, J. (2015). ‘The ugly game: The Qatari plot to buy the concerns were expressed at the time that the Declaration did World Cup,’ Simon and Schuster. and in Australia eg: Mersiades, B. (2018) not commit any of the Member States to ‘concrete action.’ ‘Whatever It Takes: The Inside Story of the FIFA Way,’ Powderhouse Press. 28. http://unesdoc.unesco.org/images/0023/002354/235409e. 49. http://playthegame.org/fileadmin/documents/Good_ pdf and http://portal.unesco.org/en/ev.php-URL_ID=13150&URL_ governance_reports/AGGIS_Final_report.pdf DO=DO_TOPIC&URL_SECTION=201.html 50. https://itunes.apple.com/au/podcast/the-ticket-abc- 29. https://rm.coe.int/factsheet-on-epas-activities-in-2018/16808b1c43 news/id898138253?mt=2&i=1000417159773 30. Wood Review p69. 51. I’ve used the expressions ‘cheating to win’ and ‘cheating to lose’ 31. Chart of signatures and ratifications of Treaty 215, Council of frequently in publications and in media interviews, including, eg: Europe Convention on the Manipulation of Sports Competitions, Nehme, M. and Ordway, C. ‘Governance and Anti-Doping: Beyond Status as of 6 September 2018 states that 3 Member States the Fox and the Hen House,’ ‘Doping in Sport and the Law’ (ed by have ratified, https://www.coe.int/en/web/conventions/full-list/-/ Haas and Healey) (2016) Hart Publishing, pp207-231, and it was conventions/treaty/215/signatures?p_auth=KIMM5tXx pleasing to see it was also picked up in the Wood Review at p41. 32. Wood Review p10. 52. The second nation is New Zealand: https://drugfreesport.org.nz/what- 33. Wood Review pp15, 18, 107 and 130, 172. At p178 there is a reference to the we-do/about-doping-in-sport/history The first national anti-doping ‘National Platform’ being designated as a ‘law enforcement agency,’ which organisation for Australia was the Australian Sports Drug Agency would only seem to be necessary if the Platform does not sit inside the NSIC. (‘ASDA’) established via the ASDA Act 1990. ASDA was replaced by the 34. See, eg: ‘Doping: Review of Australia’s national anti-doping agency: ASADA Act 2006, and the National Anti-Doping Scheme regulations parts 1 and 2,’ v9(6), Jun and v9(7), Jul 2011; ‘Doping: Working with Law https://www.legislation.gov.au/Details/C2006A00006 The ASADA Enforcement: A Strategic Approach,’ v9(10), Oct 2011; ‘ACC report: why Act was most recently amended on 1 July 2018 to remove the Advisory ASADA needs teeth,’ v11(3) Mar 2013 in World Sports Advocate. Group: https://www.legislation.gov.au/Series/C2006A00006 35. Wood Review p11; pp172-3; p176-185. 53. http://www.theage.com.au/sport/wada-against-jail-terms-for- 36. This phrase only appears on p11 Wood Review. athletes-20141116-11o25a.html See also https://epublications. bond.edu.au/cgi/viewcontent.cgi?article=1003&context=slej 37. Wood Review p172 para 7 - The proposed new NSIC Joint Intelligence and Investigations Unit is to be responsible for: ‘intelligence collection and 54. https://www.wada-ama.org/en/media/news/2018-06/quebec- analysis for the broad range of sports integrity issues; liaison with domestic assembly-protects-wadas-mission-to-fight-doping-in-sport and international law-enforcement agencies and criminal intelligence 55. Wood Review Recommendation 19 p115; p15, 106, 113. commissions; and referral services.’ Wood Review p172 para 8 - the proposed 56. https://globalsportmatters.com/science/2018/08/14/has- new Strategic Analysis Unit is to be responsible for: ‘conducting open-source wada-helped-or-hurt-the-anti-doping-movement/ threat identification and analysis.’ It is not clear if it is limited to gambling. Wood 57. Wood Review p107 and p129-130. Review p172 and p179 Recommendation 43: The Australian Criminal Intelligence 58. The submission by the Australian Athlete’s Alliance to the Wood Review Commission Sports Betting Integrity Unit is to be transferred into the NSIC. has not been published, but is referred to in the Wood Review. See 38. https://ssrn.com/abstract=2836388 [last accessed 7 Sept 2018]. also Crocker, A. (2014) ‘The Integrity of Sport and The Privilege Against 39. Wood Review p185. Self-Incrimination - Is ASADA Playing by the Rules?’ https://www. 40. Wood Review p11. Noting that while the NSIC will be assisting sports, the monash.edu/__data/assets/pdf_file/0006/139803/schwab-paper.pdf regulation function also requires the enforcement of integrity policy. 59. Wood Review p129. 41. Wood Review p28. While p37 Key Finding 6 states that ‘Equally important 60. The keynote presentation by Declan Hill to the 2009 Australian & New is the ability of governments and the sport sector to adequately respond Zealand Sports Law Association Conference based on his book, Hill, D. to other integrity issues in the sporting sphere including: harassment, (2008). ‘The fix: Soccer and organized crime’ has been credited as being bullying and discrimination; child protection; health and safety issues; enormously influential. See for example, Opie, H. & Lim, G., (2017). ‘The accreditation of athlete support personnel; regulation and supply of Australian legal framework for countering match-fixing’ pp. 59-74 at p60 and performance and image enhancing drugs, including in sporting and dietary Ordway, C. (2017) ‘Police and investigative cooperation on match-fixing’ pp. supplements; gender issues; and corruption of new and emerging sports 171-186 at p175; both chapters in Steele, S., & Opie, H. (eds) ‘Match-Fixing without identifiable controlling bodies (for instance, e-sports).’ It has not in Sport: comparative studies from Australia, Japan, Korea and Beyond.’ been specified whether the NSIC would have jurisdiction for these issues. 61. Section 51(xxix), https://www.legislation.gov.au/Details/C2013Q00005 42. Except that behaviour such as hits behind the play, high tackles, 62. http://www.health.gov.au/internet/main/publishing.nsf/ professional fouls, ball tampering etc, could be expected to come within Content/national-policy-on-match-fixing-in-sport the NSIC’s jurisdiction if there was a gambling motivation to the conduct. 63. Wood Review p67 (the European Sport Security 43. Wood Review p171 Key finding 4 states that ‘Australia needs an independent, Association and Sportradar respectively). central, national body with the expertise and reach to monitor issues 64. National Match-Fixing Policy (2011) s.3.4. across the sports integrity continuum [...] This includes monitoring 65. https://lawsocietynt.asn.au/about-lsnt/news/363-standing- and developing responses to new and emerging issues including the council-on-law-and-justice-18-november-2011-.html ongoing accreditation of athlete support personnel; supply and use of performance and image enhancing drugs; gender issues in sport; wagering 66. Wood Review p103-15; Opie, H. & Lim, G., ‘The Australian legal framework for on emerging sports without a controlling body (such as e-sports); child countering match-fixing’ pp. 59-74 in Steele & Opie (eds) (2017) ‘Match-Fixing protection; and player welfare issues, particularly at junior level.’ in Sport: Comparative Studies from Australia, Japan, Korea and Beyond.’ 44. Eg: p53 and Athlete and Ofcial Vulnerability, Wood Review pp58-59. 67. Wood Review p8, 13, 65 and 70. 45. It is telling that the section titled; ‘Why does integrity in sport matter?’ 68. Wood Review p9 - other forms of manipulation (eg: opens with a quote from the then IOC President, Jacques Rogge, from tanking/avoiding relegation not related to gambling) 2011 stressing the importance of integrity for “the legitimate sports remains regulated by the sport integrity codes. gambling industry” creating an ironic paradox when presented together 69. https://www.coe.int/en/web/sport/conference-2018 with Rogge’s 2010 statement that: “Cheating driven by betting is 70. McKenzie, B (2018).

A Cecile Park Media Publication | September 2018 19 215 PUBLICATION #8

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

216 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 2 usefulness of existing international instruments.

Given that the United Nations Conventions against Corruption (UNCAC) and against Transnational Organized Crime (UNTOC) represent the most comprehensive global standards and have the highe st 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

120 120 120 217 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, when committed 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 to this Convention. 121 121 121 218 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 ‘’. 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] 122 122 122 219 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 [last accessed 3 October 2015]. 123 123 123 220 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 11 test from the 2001 Tour de Swiss “go away” could theoretically fall within this Art. 8. 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] 124 124 124 221  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 13 majorly reduced land deals.

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] 125 125 125 222 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 n eed 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’ 17 over a number of years from 1998 and implicated 12 athletes and five support staff. 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] 126 126 126 223 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;

127 127 127 224 (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-

128 128 128 225 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 20 the World Customs Organization (WCO).

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). 129 129 129 226 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 24 reporting requirements (16 per cent).

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] 130 130 130 227 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 28 evidence against all sports (and public) officials involved in criminal offences.

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.” 131 131 131 228 everywhere considered as a top priority. For example, currently, criminalizing doping as defined via the Anti-Dopin g 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). Manda tory 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. 132 132 132 229 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

133 133 133 230 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].

134 134 134 231 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.

135 135 135 232 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, http://www.sportsintegrityinitiative.com/swiss-open-criminal-proceedings-against- blatter/?utm_content=buffera2d6b&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

Cycling Independent Reform Commission Report (2015) http://www.uci.ch/mm/Document/News/CleanSport/16/87/99/CIRCReport2015_Neutral.pdf

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

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, http://declanhill.com/dead-catting-image-laundering-and-why-you-should-have-nothing-to-do-with-the-icss/

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, http://epublications.bond.edu.au/slej/4

B Mallon, “The Olympic Bribery Scandal”, Journal Of Olympic History, May 2000, http://library.la84.org/SportsLibrary/JOH/JOHv8n2/johv8n2f.pdf

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, http://www.spiegel.de/international/world/documents-indicate-slush-fund-used-in-german-world-cup-bid-a-1058212.html

136 136 136 233 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, http://www.unodc.org/documents/treaties/organized_crime/CTOC_COP_WG2_2009_3_E.pdf

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

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, http://d3epuodzu3wuis.cloudfront.net/ReasonedDecision.pdf

(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, http://www.interpol.int/content/download/9287/68584/version/2/file/INTERPOL_WADA.pdf

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

(WADA) 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

137 137 137 234 Chapter 5: Asset protection (Athlete Welfare) – Financial Security and Inclusion (transgender athletes)

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

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

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

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

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

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.

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

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

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

241 PUBLICATION #9

Volume 6 — Issue 2 — Autumn 2014

242 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 within the 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] 2 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).

6 243 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).

7 244 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).

8 245 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.

9 246 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).

10 247 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.

Reference List

Ahl, C. (2011). “IHF/Sportfive/UFA: will the evidence be found?”, IHF News, 12 November. Retrieved from http://teamhandballnews.com/wordpress/ author/cahl/page/13/ Associated Press (2009, July 30). “German handball referees banned for match- fixing”. USA Today. Retrieved from http://usatoday30.usatoday.com/sports/ olympics/2009-07-30-2484202411_x.htm BBC News (2010, December 2). “England miss out to Russia in 2018 World Cup vote”. Retrieved from http://news.bbc.co.uk/sport2/hi/football/9250585.stm BlackRock (2014), Sovereign Risk Index: First Quarter 2014. Retrieved from http://www.blackrock.com/corporate/en-us/literature/whitepaper/bii-bsri-q1- 2014-us-version.pdf Boniface, P., Lacarriere, S., Verschuuren, P., Tuaillon, A., Forrest, D., Icard, J.-M., Meyer, J.-P., & Wang, X. (2011). Sports betting and corruption: How to preserve the integrity of sport. Retrieved from http://www.sportaccord.com/multimedia/docs/2012/02/2012_-_IRIS_- _Etude_Paris_sportifs_et_corruption_-_ENG.pdf Spiegel (2013, April 10). “Kieler Handball-Prozess: Gericht spricht Schwenker erneut frei”. Retrieved from http://www.spiegel.de/sport/sonst/handball- gericht-spricht-schwenker-erneut-frei-a-893673.html

11 248 Deutsche Welle (2006, December 15). “Disgraced Referee Hoyzer Jailed After Losing Appeal Hearing”. Retrieved from http://www.dw.de/disgraced-referee-hoyzer- jailed-after-losing-appeal-hearing/a-2273305 Eggers, E. (2011, August 26). “Umstrittener Schiedsrichter Ullrich: Zweite Chance beim DHB”, Spiegel Online. Retrieved from http://www.spiegel.de/sport/sonst/umstrittener-schiedsrichter-ullrich-zweite- chance-beim-dhb-a-782501.html FR Online (2014, April 14). “Fünf Jahre Haft für Ante Sapina”. Retrieved from http://www.fr-online.de/sport/fussball-wettskandal-fuenf-jahre-haft-fuer-ante- sapina%2c1472784%2c26842888.html Golliver, B. (2014, September 4) “Australia accused of 'fixing' in ugly loss to Angola at FIBA World Cup”, Sports Illustrated. Retrieved from http://www.si.com/ nba/2014/09/04/australia-angola-tanking-goran-dragic-fiba-world-cup Hill, D. (2008). The fix. Toronto: McClelland & Stewart. Hill, D. (2013). The insider’s guide to match-fixing in football. Toronto: Anne McDermid & Associates. Hill, D. (2014, June 9). “Will match-fixers target World Cup in Brazil?”. The Star. Retrieved from http://www.thestar.com/news/world/2014/06/09/ will_matchfixers_target_world_cup_in_brazil.html Hooijerg, R., Lane, N. & Diverse, A. (2010). Leader effectiveness and integrity: Wishful thinking? International Journal of Organizational Analysis, 18(1), 59- 75. ICSS (University Paris 1 Panthéon-Sorbonne and the International Centre for Sport Security) (2014, May 15). Sport Integrity Report, Executive Summary. Retrieved from http://www.theicss.org/astonishing-scale-of-betting-fraud-and-sport- corruption-confirmed-in-ground-breaking-scientific-report/ KEA European Affairs (2012). “Match-fixing in sport: A mapping of criminal law provisions in EU 27”. Retrieved from http://ec.europa.eu/sport/library/studies/ study-sports-fraud-final-version_en.pdf Kicker Online (2013, October 26). “Hassan Moustafa bleibt IHF-Präsident”. Retrieved from http://www.kicker.de/news/handball/startseite/594141/ artikel_hassan-moustafa-bleibt-ihf-praesident.html Lyons, K. (2014a, June 5). “World Cup 2014 predictions: who will take the title?” The Conversation. Retrieved from http://theconversation.com/world-cup-2014- predictions-who-will-take-the-title-27387 Lyons, K. (2014b, June 19). “Round 1 of the World Cup, by numbers”. The Conversation. Retrieved from http://theconversation.com/round-1-of-the- world-cup-by-the-numbers-28188 NADA (2012). Annual Report of the National Anti-Doping Agency Germany 2012. Retrieved from http://www.nada.de/fileadmin/user_upload/nada/Downloads/ Jahresberichte/NADA_Annual_Report_2012_kl.pdf NADA (2014). Website of the German National Anti-Doping Agency. Retrieved from http://www.nada.de/de/home#.U6mYqfmSySo

12 249 Ordway, C. (2014, June 19). “University of Canberra’s expert tips for the World Cup: Catherine Ordway”, online comment. Retrieved from http://instagram.com/p/pbDIkrCREM/# Rogge, J. (2010, June 24). Comments by Jacques Rogge. Retrieved from http://www.olympic.org/news?articleid=92584 Ross, M. (2013, September 27). “Probe into IHF president Moustafa's agency dealings set to be stepped up after documents released”. ASOIF News. Retrieved from http://www.asoif.com/News/News_Article.aspx?ID=3922 Trading Economics (2014). Credit Rating - Countries List (as at 21 June 2014). Retrieved from http://www.tradingeconomics.com/country-list/rating Transparency International (2009). Corruption and sport: Building integrity and preventing abuses. Retrieved from http://www.transparency.org/whatwedo/ pub/working_paper_no.03_2009_corruption_and_sport_building_integrity_a nd_preven Transparency International (2011). Safe hands: Building integrity and transparency at FIFA. Retrieved from http://www.transparency.org/Whatwedo/pub/ safe_hands_building_integrity_and_transparency_at_fifa Transparency International (2013). CPI 2013 Ranking. Retrieved from http://cpi.transparency.org/cpi2013/results/ Transparency International (2014). Staying on side: Education and prevention of match-fixing. Retrieved from http://www.transparency.org/whatwedo/activity/ staying_on_side_education_and_prevention_of_match_fixing Uersfeld, S. (2014). “Sapina match-fixing sentence is reduced”. ESPN News. Retrieved from http://www.espnfc.com/story/1785621 Ungerleider, S. (2001). Faust's gold: Inside the East German doping machine. New York: St. Martin’s Press/Macmillan. USA Today (2014, July 6). “Nigeria heading for FIFA Ban over Interference”. Retrieved from http://www.usatoday.com/story/sports/soccer/2014/07/ 06/nigeria-heading-for-fifa-ban-over-interference/12269793/ Weinreich, J. (2010, January 27). “Hassan Moustafa, Handball, Sportfive, Lobbyismus und Korruption”, online comment. Retrieved from http://www.jensweinreich.de/2010/01/27/Hassan-Moustafa-Handball- Sportfive-Lobbyismus-Und-Korruption/

13 250 PUBLICATION #10

INCLUSION Catherine Ordway Senior Consultant [email protected] Snedden Hall & Gallop, Australia Senior Fellow, University of Melbourne, Law School Does sex segregated sport still hold value? 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.

In Australia, the issue which is causing behaviour involves treating people in this based on flawed and inaccurate scientific significant debate in sport circles is how to spirit, regardless of gender. EoC, also hypotheses9. Athletes and commentators embrace diversity and inclusion in sport known as Care Ethics, has developed have claimed that the policy amounts to while protecting existing competitors historically from the feminist tradition of “gender discrimination10” in preventing from perceived ‘unfair advantage1.’ The recognising, and requiring, that we can transgender women, and women with a demand that transgender women be and should respond to marginalised range of hormonal and genetic profiles, accorded their human right to play sport members of the community with care and from playing sport11. The has challenged the thinking of sports empathy. Doing the right thing means Consensus was amended in 2015 to administrators, policymakers and cis taking action to make the world a better take into account societal and legal women in the industry. (Cis women, also place for those who have been made recognition of changes to gender sometimes referred to as ‘non-transgender vulnerable or otherwise excluded and/ identity. The IOC’s amended Transgender women’ are women who identify with or marginalised, even beyond our legal Guidelines maintains the flawed being female in alignment with their requirements. In this context, it requires ‘advantage’ biology assumptions based biological sex at birth2.) Transgender sports administrators to provide more on testosterone levels, without taking men (people born biologically female, ‘care’ and resources to people on an into account significant genetic and other and now living and identifying as men), increasing scale to match the needs of variations in the athlete population12. do not appear to cause the same level vulnerable and marginalised people For example, cyclist Kristen Worley is of angst for sports authorities, as their within our community to ensure that not transgender, but has undergone physical prowess is not perceived to be everyone has both equitable access reassignment from a XY male to XY a threat to the male competitors or to the to the benefits of sport, and an equal female. She succeeded after 16 years ‘fairness’ of the competition. To analyse opportunity to earn a living from those to win her right to play when the Human this contradictory approach, this article activities if they have the ability to do so. Rights Tribunal of Ontario found that the asks: What do we mean by fairness and International Cycling Union rules (based a ‘level playing field’? which leads to What do we mean by fairness on the IOC policy) were discriminatory13. answering: how do we define ‘women’ in and a ‘level playing field’? Worley equated the gender testing she women’s sport?, and considering whether The UNESCO International Charter of underwent during her athletic career to binary sex segregation in sport still holds Physical Education and Sport states that: sexual assault consistent with complaints any relevance or benefit in the future? ‘[A]ccess to physical education and sport arising out of the #MeToo movement14. should […] be assured and guaranteed Background for all human beings6.’ The International A transgender person is defined by Women have overcome centuries of Olympic Committee’s (‘IOC’) Olympic UNAIDS as a person who: “has a gender sexism to now be permitted to participate Charter also sets out, as one of the identity that is diferent from his or her in sport within a strict binary sex fundamental principles of the Olympic sex at birth. Transgender people may segregated system. People identifying Movement, that: ‘The practice of sport be male to female (female appearance) with, or being ‘outed’ by sports authorities is a human right. Every individual must or female to male (male appearance). as having anything other than the have the possibility of practising sport, It is preferable to describe them as ‘standard’ genetic and hormonal profiles3, without discrimination of any kind and ‘he’ or ‘she’ according to their gender are being marginalised and excluded. A in the Olympic spirit, which requires identity, i.e. the gender that they are solution to this debate is proposed here mutual understanding with a spirit of presenting, not their sex at birth15.” using an Ethics of Care (‘EoC’) approach4. friendship, solidarity and fair play7.’ The starting point for this approach is To achieve the aims of the UNESCO the conviction that all human beings are The IOC’s 2003 policy (known as the and IOC Charters, the starting position born free and equal in dignity and rights, Stockholm Consensus8) recognising from an EoC perspective must be that as stated in Article 1 of the Universal athletes after sex reassignment surgery transgender women be included, unless Declaration of Human Rights5. Ethical has been heavily criticised for being it can be established that there is an

16 WORLD SPORTS ADVOCATE 251 evidence-based unfairness warranting that football leagues, where the players can be provided by the 2017 AFL men’s they be excluded. To allow for women’s expected to be physically weaker and less premiership winning club are instructive28. sport to be as inclusive as possible, it is experienced, negates the unfair advantage The senior clear that comprehensive and transparent and risk of physical harm arguments. players have an almost 30cm diference transgender policies are needed. These between the shortest to the tallest in policies must be based on science. In line Mouncey is being given a right to the 40-man squad (from 175-204cm). By with the human right to sports participation, play, but not at the elite level. The UN weight the diference between lightest the Australian Federal Government’s sport Convention states that discrimination (71kg), to heaviest (106kg) is 35kg. The policy and funding arm, the Australian ‘of any kind’ is unacceptable24, and so it AFLW does not provide statistics on its Sports Commission (‘ASC’), is currently follows that an EoC approach requires players, but a similar diversity exists within undergoing a consultation to ensure that that Mouncey not be denied access to the Australian women’s rugby union team: their guidelines are developed to allow the elite level in any sport, where she with spans of 25cm between tallest and transgender women to play sport, including has the sporting ability. Mouncey has a shortest and 44kg between heaviest at the elite level. The ASC guidelines right to earn a living and where she is and lightest29. Even taking into account should be released in August 2018. denied access to the professional league, that these are results for a national team but permitted to play in the amateur of only 28 players, which includes both Hannah Mouncey league, this also amounts to economic Super W and 7’s representatives, the Hannah Mouncey is a transgender woman discrimination. It seems unlikely that heaviest Wallaroo weighs more than who wants to play in the Australian transgender women would make the the heaviest Richmond men’s player. To Football League (‘AFL’) Women’s prodigious decision to undergo the imagine that cis women in the Australian Competition (the ‘AFLW’). The AFL has medical, social and legal transformation national teams, would be excluded from been basking in the glow of the success for reasons relating to potential economic playing in the AFLW on the grounds of of its recently introduced premier women’s benefits. Despite the considerable an unfair advantage is incongruent. competition16, promotes its support for gains recently experienced by female social issues including gay pride17, and athletes in professional team sport, the There is no evidence in the public claims a: “strong commitment to equality monetary compensation ofered to AFLW domain that the AFL has measured and inclusion at all levels of the game18.” players, as compared with their AFL Mouncey’s strength or stamina, and the On this basis, it would be expected that ‘brothers,’ remains pitiful25, and it cannot AFL has not indicated that the other the AFL take an inclusion-based EoC be imagined that it would lead to the AFLW players have been measured approach to a person who finds herself opening of the proverbial ‘floodgates’! against any of the criteria relied on to in a highly marginalised class of people. exclude Mouncey. Mouncey’s coach However, the AFL appears to have How do we define ‘women’ in the local Canberra competition resorted to conservative risk minimisation in women’s sport? notes that while Mouncey’s hand-eye to exclude Mouncey. After the AFL finally The AFL does not have a transgender skills are good, she does not have the announced, on the day before the AFLW policy. The AFL is, in efect, the endurance, speed, or strength of some Draft in October 201719, that Mouncey international federation for the sport, of the other players, and, as she is still would be ineligible to be selected for and not being on the Olympic program learning the game, is improving her teams in the 2018 AFLW, commentators does not have to comply with the IOC kicking accuracy30. It has also been criticised the decision20. The AFL has policy. However, the AFL is required to accepted by the International Handball relied on an exception to the anti- comply with Australian law. In the AFL Federation (the sport Mouncey played discrimination legislation which allows Female Football Club Guide26, the AFL prior to her transition) that her hormone sports organisations to exclude people refers readers to the: ‘Transgender and levels and consequent loss of strength on the grounds of gender where their Intersex Sport Inclusion Guidelines plus means that she has been legally and ‘strength, stamina or physique is relevant21.’ Guidelines: Transgender, People and medically cleared to play the Olympic Sport27.’ Despite these public statements, sport of handball31. The Olympic sports There is no doubt that strength, stamina in its 2017 decision, the AFL stated that its have been grappling with how to achieve and physique are required to play AFL subcommittee had: “carefully considered a ‘level playing field’ in a world where football22. The AFL’s decision appears to be all the information provided by Hannah assumptions about a ‘standard’ of XX and based on an assumption that Mouncey has [Mouncey], as well as the available data on XY chromosomes and testosterone levels an unfair advantage on some or all of these transgender strength, stamina, physique for each sex have been shown to be criteria. Therefore, the AFL’s announcement along with the specific nature of the AFL false. Despite the best eforts of some to that Mouncey was eligible to continue competition” to determine that Mouncey lower the discussion to one on genitalia32, playing in the lower state leagues23, but is not eligible to play in the women’s research has demonstrated that people not in the AFLW, is further support for competition. The AFL did not clarify what can be born with either only one, or three the conclusion that the AFL decision is information was provided by Mouncey, or more sex chromosomes33 and there is inconsistent and prima facie in breach of and did not specify what the ‘available a ‘complete overlap between the sexes’ anti-discrimination legislation. Given that data’ was or how it could be verified. in testosterone levels, particularly in elite the AFL has not published detailed reasons athletes34. The evidence presented here for its decisions, it is assumed that the AFL It can be assumed that the ‘physique’ suggests that the criteria relied on by the must have determined that Mouncey has: criteria relates to Mouncey’s height (190 AFL to exclude Mouncey is inadequate i) an unfair physical advantage over the cm) and that she previously weighed in determining what is fair competition other women in the AFLW competition; ii) 100kg. The AFL version of football is a in a sex segregated sport environment. may cause a more than insignificant risk collision sport played on a wide open of injury to other players; and/or iii) that grassed oval. This means that the most Future considerations Mouncey’s ‘look’ is not the marketing successful teams will have a broad Does binary sex segregation in image sought to be promoted by the AFL. diversity of physiques, and, presumably, sport still hold any relevance? Allowing Mouncey to play in the state skill levels. To illustrate this, the statistics Sport has traditionally been developed

A Cecile Park Media Publication | May 2018 17 252 INCLUSION

by and for men35. As society has evolved, male and female elite athletes, then sex inclusive sports from as far back as an additional category of ‘women’s sport’ an EoC perspective could allow 199042. If the AFL had considered an EoC has been developed to give cis women for the introduction of new, gender perspective and gone beyond a merely an opportunity to compete. This could neutral and inclusive team sports to responsive Respect and Responsibility be seen as a kind of afrmative action allow for the range of physicalities policy43 to adopt a truly gender program to overcome the centuries and skills sets represented. mainstreaming approach44 in introducing of sexism and presumptions about the AFL’s latest product this year, the capability that prevented women from One sport which has already made AFLX would have been designated having equal access to sport. Men and in-roads in this direction is roller derby. as a mixed, gender-neutral, sport45. women have also played competitive Roller derby started as a female-only sport together. The traditional racquet sport, but has recently introduced The AFL decision in relation to Hannah sports36, Olympic sailing37 and , for a Gender Statement as follows: ‘An Mouncey demonstrates that a great example, have competitions for mixed individual who identifies as a trans deal is needed from policymakers doubles at the highest levels. New sports woman, intersex woman, and/or gender to ensure that those in our midst like and football also have expansive may skate with a WFTDA [the experiencing the greatest challenges mixed team events, requiring designated Women’s Flat Track Derby Association] are given more care by those with the minimum numbers of women on each charter team if women’s flat track roller power to provide it. Legal definitions of team. However, these disciplines remain derby is the version and composition gender discrimination and inclusion go hedged in binary definitions of gender, of roller derby with which they most some way, but additional work needs which would not necessarily assist the closely identify40.’ Despite this, the sport to be done through education and gender-neutral or transgender athletes38. continues to grapple with how to include awareness-raising to reflect the scientific These advances have also not protected men. Similar generalised reservations evidence that cis women are not being women from being physically, sexually are expressed in relation to assumed unfairly disadvantaged by including and emotionally abused when competing physicality advantages, despite the transgender women in competitive in or working within the sports industry39. range of physical descriptions of the men sport, particularly in team environments. seeking to be involved in roller derby41. Perhaps the answer lies in developing Given that the science demonstrates new, gender-neutral, sports that celebrate significant overlap between the height, Sociologist Jennifer Hargreaves, is the skills and attributes present in weight and hormone levels between credited for calling for new gender and the diversity of our communities.

1. For example, (print) T Holmes, Sport in transition: Reports/EN/en_report_905.pdf com.au/news/2018-02-07/aflw-bulldogs- AFL’s Hannah Mouncey ruling reignites debate 9. For example Sullivan, CF (2011). Gender and-blues-to-hold-pride-match on trans women in sport, ABC News Online, verification and gender policies in elite 18. M McGowan, ‘AFL blocks transgender updated 23 October 2017. Similar arguments sport: Eligibility and ‘fair play.’ Journal of footballer from AFLW,’ 17 October 2017, were raised in relation to transgender Sport and Social Issues, 35(4), 400-419 http://www.afl.com.au/news/2017-10-17/ weightlifter Laurel Hubbard, see: http://www.abc. 10. ‘Gender discrimination’ is defined by afls-transgender-call-on-aflw-hopeful net.au/news/2018-04-08/laurel-hubbard-split- the Convention on the Elimination of all in-ranks-over-transgender-weightlifter/9626242. 19. http://www.afl.com.au/news/2017-10-17/ forms of Discrimination Against Women, The ‘advantage’ question is discussed in afls-transgender-call-on-aflw-hopeful UN (1979), Article 1, http://www.un.org/ Sullivan CF (2011). ‘Gender verification and 20. C Ordway and A Twigg, ‘By excluding womenwatch/daw/cedaw/cedaw.htm gender policies in elite sport: Eligibility and “fair Hannah Mouncey, the AFL’s inclusion policy play”.’ Journal of Sport and Social Issues, 35(4). has failed a key test,’ 19 October 2017. ‘Sex’ is defined in the UN Women Training 2. T Chevalier, ‘What does cis mean?,’ Centre, Gender Equality Glossary, https:// 21. Equal Opportunity Act (Vic) s.72(1), http:// last updated 9 July 2016, https://www. trainingcentre.unwomen.org/mod/glossary/view classic.austlii.edu.au/au/legis/vic/ whatdoescismean.com/whatdoescismean/ consol_act/eoa2010250/s72.html 11. http://www.tas-cas.org/fileadmin/ 3. For example, Wonkam, A., Fieggen, K., user_upload/award_internet.pdf 22. The distinction between combat and contact & Ramesar, R. (2010). Beyond the Caster 12 https://stillmed.olympic.org/Documents/ sports was set out in: Magnusson, R. S., & Opie, Semenya controversy: the case of the use of Commissions_PDFfiles/Medical_ H. (1994). HIV and Hepatitis in Sport: a legal genetics for gender testing in sport. Journal of commission/2015-11_ioc_consensus_ framework for resolving hard cases. Monash Genetic Counseling, 19(6), and the most recent meeting_on_sex_reassignment_ UL Rev., 20, 214. http://classic.austlii.edu.au/ amendment to the IAAF Eligibility Regulations and_hyperandrogenism-en.pdf au/journals/MonashULawRw/1994/10.pdf for Female Classification (Athletes with 23. D Navaratnam, ‘Transgender footballer clear to Diferences of Sex Development), 26 April 2018. 13. A Brown, ‘Sports Longest Injustice Scheduled for Demolition,’ 26 May 2017, http://www. play state leagues,’ AFL, 13 February 2018, http:// 4. Originally developed by Carol Gilligan. See C sportsintegrityinitiative.com/sports- www.afl.com.au/news/2018-02-13/transgender- Gilligan (1982). In a diferent voice. Cambridge: longest-injustice-scheduled-demolition/ footballer-cleared-to-play-state-leagues Harvard University Press, https://www. 14. ‘Kristen Worley: taking on the IOC for 24. UN (1979), Convention on the Elimination researchgate.net/publication/275714106_ transgender athletes,’ 26 January 2018, of all forms of Discrimination Against In_A_Diferent_Voice_Psychological_ Nine to Noon, RNZ, https://www.radionz. Women, Article 1, http://www.un.org/ Theory_and_Women’s_Development co.nz/national/programmes/ninetonoon/ womenwatch/daw/cedaw/cedaw.htm 5. http://www.un.org/en/universal- audio/2018629548/kristen-worley-taking- 25. ‘AFLPA and AFL agree a paydeal for AFLW declaration-human-rights/index.html on-the-ioc-for-transgender-athletes players,’ 2 November 2017, http://www.aflplayers. 6. International Charter of Physical Education 15. UNAIDS Terminology Guidelines, http://files. com.au/article/aflpa-afl-agree-to-revised-aflw- and Sport preamble, http://portal.unesco. unaids.org/en/media/unaids/contentassets/ pay-deal/ and ‘Players, AFL sign historic CBA org/en/ev.php-URL_ID=13150&URL_ documents/unaidspublication/2011/ deal,’ 20 June 2017, http://www.aflplayers.com. DO=DO_TOPIC&URL_SECTION=201.html JC2118_terminology-guidelines_en.pdf au/article/players-afl-sign-historic-cba-deal/ 7. IOC, ‘Fundamental Principles of 16. ‘AFL Women’s Teams Announced,’ AFL, 15 26. http://www.aflcommunityclub.com. Olympism’, Olympic Charter, 2 August June 2016, http://www.afl.com.au/news/2016- au/fileadmin/user_upload/Play_AFL/ 2015, 13-14, http://www.olympic.org/ 06-15/afl-womens-team-announced Female_Footy/AM_3987_Womens_ Documents/olympic_charter_en.pdf 17. ‘AFLW: Bulldogs and Blues to hold Pride Football_Club_Guide_D5_lores.pdf 8. https://stillmed.olympic.org/Documents/ match,’ 7 February 2018, http://www.afl. 27. Presumably a reference to the Victorian

18 WORLD SPORTS ADVOCATE 253 NEWS ANALYSIS

Equal Opportunity & Human Rights Commission FIFA amends the RSTP Regs Guideline: Tran and Gender Diverse Inclusion in Sport - Complying with the Equal Opportunity Act 2010, https://www.glhv.org.au/sites/default/ FIFA announced amendments to its Regulations on the Status files/2017-06/Guideline_Trans_and_gender_ and Transfer of Players (‘RSTP’) on 26 April 2018 in Circular diverse_inclusion_in_sport_0.pdf and the ACT 1625, which introduces an amendment to Article 14 to include Human Rights Commission, Everyone Can Play: a new paragraph concerning abusive situations where the Guidelines For Local Clubs On Best Practice For Inclusion Of Transgender And Intersex Participants, stance of a party is intended to force the counterparty to http://hrc.act.gov.au/wp-content/uploads/2017/04/ terminate or change the terms of the contract; a new Article WEB_ACTHRC_Everyone_Can_Play.pdf 14bis to address the circumstance of terminating a contract 28. http://www.richmondfc.com.au/players/senior-players due to overdue salaries; a change to Article 17 regarding 29. https://www.rugby.com.au/teams/wallaroos the calculation of compensation for breach of contract 30. ‘Ainslie coach Chris Rourke surprised at AFL barring without just cause; and a new Article 24bis relating to the transgender player Hannah Mouncey from AFLW draft,’ The Canberra Times, 18 October 2017, http://www. execution of monetary decisions, granting FIFA’s decision- canberratimes.com.au/afl/afl-news/ainslie-coach-chris- making bodies the power to impose sanctions on players rourke-surprised-at-afl-barring-transgender-player- and clubs if a monetary decision is not complied with. hannah-mouncey-from-aflw-draft-20171017-gz2zoa.html 31. The IHF criteria is based on the IOC guidelines which have been criticised. “The major regulatory change is Article 24bis because it introduces a new concept,” said Paolo Lombardi, Managing 32. Eg: N Mitchell, ’Gender is going to be wiped out in elite sport’ lawyer claims, Mornings, Director at Lombardi Associates. “Some of the other 3AW radio Melbourne, 14 February 2018. amendments seem at first sight very significant, although 33. http://www.who.int/genomics/gender/en/index1.html they actually enshrine principles that have been established 34. Healy, Marie-Louise & Gibney, James & through consistent jurisprudence of FIFA decision-making Pentecost, Claire & J Wheeler, M & Sonksen, bodies. Having said that, the act of codifying principles Peter. (2014). Endocrine Profiles in 693 Elite Athletes in the Post-Competition Setting. arising from jurisprudence should not be underestimated.” Clinical endocrinology. 81. 10.1111/cen.12445 35. For example, Hargreaves, J. (2002). Sporting Under Article 24bis, when instructing a party (a club or a females: Critical issues in the history and player) to pay another party (a club or a player) a sum of sociology of women’s sport. Routledge. money, the Players’ Status Committee, the Dispute Resolution 36. For example, Lake, R. J. (2012). Gender and Etiquette in British Lawn Tennis 1870-1939: A Chamber (‘DRC’), the Single Judge or the DRC judge will also Case Study of ‘Mixed Doubles’. The International decide on the consequences for failure to pay the relevant Journal of the History of Sport, 29(5), 691-710. amounts in due time. The specific consequences for non- 37. https://www.olympic.org/sailing compliance with a monetary decision will be included in 38. Sports that do not rely on the physicality of the the findings of the decision and will be the following, when athlete go outside the issues addressed here. applicable to debtor clubs: a ban from registering any new For more information, see ‘A Leader in Equality,’ FEI, 30 March 2018 https://www.fei.org/stories/ players until due amounts are paid over a maximum of three equestrian-fei-gender-equality and De Haan, D., consecutive registration periods; and when applied to debtor Sotiriadou, P., & Henry, I. (2016). The lived experience players: a restriction from playing in ofcial matches until of sex-integrated sport and the construction of athlete identity within the Olympic and Paralympic due amounts are paid over a maximum of six months. equestrian disciplines. Sport in Society, 19(8-9). 39. ‘Iran detains 35 women for going to football match,’ “Article 24bis is clear in indicating that the relevant FIFA BBC News, 1 March 2018, http://www.bbc.com/ decision-making body ‘shall’ include with a monetary news/world-middle-east-43243414 and ‘Iran jails British-Iranian woman who was detained for watching decision the specified sanction that will apply in the event of ,’ ABC News, 3 November 2014, http:// non-compliance with such decision,” adds Lombardi. “As it www.abc.net.au/news/2014-11-02/iran-jails-woman- stands, if a monetary decision is not complied with following for-watching-volleyball-supporters-say/5861238 a final and binding decision, the creditor needs to request 40. https://wftda.com/wftda-gender-statement/. the FIFA Disciplinary Committee (‘FDC’) to open disciplinary A Pavlidis (2013) ‘Writing Resistance in Roller Derby: Making the Case for Auto/Ethnographic proceedings and potentially impose sanctions in order Writing in Feminist Leisure Research,’ Journal of to enforce payment. Instead, such sanctions will now be Leisure Research, Vol. 45, No. 5, http://www.nrpa. included in the monetary decision, which in principle means org/globalassets/journals/jlr/2013/volume-45/ jlr-volume-45-number-5-pp-661-676.pdf less delays for creditors, and less cases for the FDC to deal 41. See the discussion in Pavlidis, A., & Connor, J. with. Of course, parties can still lodge an appeal with CAS (2016). Men in a ‘women only’sport? Contesting against the FIFA decision, and the challenge here will be for gender relations and sex integration in CAS to provide equally swift appeal proceedings so as not roller derby. Sport in Society, 19(8-9). to counteract the positive impact of the new amendments.” 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 FIFA also issued Circular 1628 on 9 May 2018, announcing a ‘women only’ sport? Contesting gender relations and new approach to debtors within the procedure of Article 64 of sex integration in roller derby. Sport in Society, 19(8-9). the FIFA Disciplinary Code. FIFA acknowledged the introduction 43. Respect and Responsibility Policy, AFL of Article 24bis in this Circular but stated that due to the limited Community, http://www.aflcommunityclub. com.au/index.php?id=750 scope of the new Article and that it will only apply to claims 44. ‘Gender mainstreaming is the systematic lodged after 1 June 2018, the FDC will still have a “considerable” integration of gender equality into all systems number of cases to deal with so the implementation of and structures; policies, programs, processes and sanctions under a new procedure in the Disciplinary Code is projects; into cultures and their organisations; into ways of seeing and doing,’ Rees T (2002). also necessary. The new procedure will see point deductions A New Strategy: Gender Mainstreaming. and transfer bans automatically imposed on debtors by member 45. http://www.afl.com.au/aflx associations from the expiry of the final deadline for payment.

A Cecile Park Media Publication | May 2018 19 254 Chapter 6: Conclusion, Recommendations and Afterword

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

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 intimate relationships and grooming, violence, over/ poor training, neglect and/or lack of access to healthcare (including post-sport transition), food/ water deprivation, unsafe/inadequate housing, venues, or transport, poor sanitation and/or access to sleep, (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/or colour, ethnicity, national/ regional origin, language, cultural practices, political beliefs 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, balanced with 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 be expanded to include “by and of”) • Passive bribery of public officials (Art.15[b]) (in the sport context, this would be expanded 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 financing and tax evasion) • Embezzlement, misappropriation and other diversion of public property (Art.17) (in the sport context, this should be expanded to include “any” property or funds belonging 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”, and include 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 a lack of transparency and accountability, but which not otherwise satisfy the criminal standards for fraud (or “illicit enrichment” or “embezzlement” to use the UNCAC (2005) language). This may include the inadequate regulation of prohibited substances and methods (WADA 2015) and gambling, as well as organisational financial and corporate reporting, which may include: the nomination, recruitment and/or selection processes for officials, voting, term limits, conflicts of interest, the use of shell companies, contractual arrangements including accreditation, athlete/team transfers, and the granting of hosting, media (broadcasting and advertising), and sponsorships rights, failures to prosecute, ticketing, infrastructure, development Government/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 from Government, for example (IOC 2013);1 • Breaches of the sport rules and “gamesmanship”: including unwritten, moral rules couched 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, including counterfeit 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-social behaviour. 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 “Protecting Sports Integrity: Sport corruption risk management strategies” Catherine Ordway 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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