Why international sports regulation needs reform
Thursday, Sep 6, 2018, 12:26 AM | Source: Pursuit
By Lloyd Freeburn
Since 2015, soccer's world governing body, FIFA, has faced claims of widespread corruption and a US Justice Department investigation into bribes paid to international officials.
The investigation has seen long-time FIFA president Sepp Blatter removed from office and many other high-ranking soccer bureaucrats and administrators banned from the sport.
Indeed, international sport has been afflicted by frequent and apparently systemic governance and corruption scandals like this, with significant controversies also arising in the Olympics and in athletics.
But rather than being a succession of one-off problems, these scandals can be seen as evidence of deep-seated issues in the fundamental structure of how sport is governed.
There is a real problem at the heart of how international sport is run and in how the law props up this defective system. Reform is urgently needed.
In each sport, there is a body that proclaims itself the sole, world-wide governing body. These organisations exercise their self-appointed role to control and make extensive rules regulating each sport. Some generate billions of dollars in revenue each year.
Moreover, governing bodies like the International Olympic Committee (IOC) and FIFA exercise significant control over individual participants. They regulate not only the conduct of players and athletes on the sports field, but also how they earn their livelihoods. They reach deep into what would normally be considered players and athletes' private lives.
Of course, international sport can only function with uniform and consistent rules. So, while particular rules can be debated, it's accepted there needs to be one body to govern each sport.
But this is where the core problem with the structure of sports governance arises.
The monopolist sports governing bodies are not representative of, nor accountable to, those over whom they exercise control. At least democratic governments – whatever problems they may experience – are ultimately elected by, and accountable to, those they govern. This is not the case in sport.
The vast majority of participants in sport have no say, directly or indirectly, over the appointment of those who make the decisions and rules that apply to them.
For example, the most powerful international federation, the IOC, is in essence a self-selecting private club with the members determining who joins them. In football, FIFA's decision-makers are chosen by the 200 or so member national federations.
Other than a token number of athletes approved and appointed by the IOC itself, no individual athlete or player is a member, or has any say in the rule-makers' appointments.
This produces a fundamental democratic deficit; the governance regimes of international sports fall under the corrupting influence of absolute power.
So courts should have a vital role in supervising these bodies' extensive private powers. But unfortunately, those who have looked to the courts for protection against the arbitrary power of sports governing bodies have often been disappointed.
Legally, the regulatory control of international sports governing bodies is almost universally – but wrongly – regarded as consent-based, as power exercised by voluntary associations, typically through private law contracts. Courts defer to the power of the governing bodies.
However, this concept is built on legal fictions and is untenable. The rules of a governing body like FIFA don't depend on any individual participant's consent; they operate as a form of quasi-legislation. They principally exercise non-consensual, and arbitrary, de facto private power.
This is made possible by the monopoly position of international federations in sport's hierarchies, combined with the unique capacity of sports' governing bodies' to impose their own sanctions without requiring enforcement action through state legal systems.
This de facto power is supported by the non-consensual Court of Arbitration for Sport, a tribunal that is permitted to operate by national legal systems on the basis of justifications that are manifestly inadequate.
When courts do enter into a dispute over an exercise of power by a sport's governing body, the illegitimate private power of the governing body is falsely equated with the liberty of the players and participants over whom the power is exercised.
A more accurate understanding of regulatory power in international sport is needed to formulate urgent and necessary reforms.
We need to recognise the current regime is illegitimate, and that the consent-based legal concept of sports governing bodies' authority is inadequate.
Instead, we need to create a secure legal foundation for regulatory power in sport. International sport requires an international solution; a legal convention that allows bodies to govern legitimately and with the appropriate authority would be a welcome intervention.
Dr Freeburn is the author of Regulating International Sport, published by Brill.
Banner image: Getty Images