Good governance in sport and the promotion of global civil society
Sport is an important part of global civil society and it is best managed by that society’s institutions, in the form of non-government organizations of sufficient autonomy to be immune to the inherently corrupting political power of the state. But with freedom – with the “autonomy of sports” – comes responsibility.
Universality of sport and its ability to integrate or disintegrate societies as the reason for its autonomy
Sport is an inherent, universal human activity. Although levels of interest in various disciplines and intensity of participation vary across societies, the values underpinning sports and the emotions which sport elicits are essentially common to all humanity.
Sport also has strong identity and community building capabilities. As such it can be used to integrate people across borders, by appealing to and uniting around such common, underpinning values as fair play and honourable rivalry. Or else it can serve as a tool to antagonize nations by fuelling biases, racial, national or regional conflicts and chauvinisms, as was for instance demonstrated in the way the 1936 Olympics were used for the promotion of Aryan superiority, or how an outburst of negative emotions over a football game was the final trigger to an actual war between Honduras and Salvador in 1969.
It is mainly for these two reasons – its universal character and social potential – that sport is, and should be, managed by non-governmental, global organizations. In essence, sport is an important part of global civil society and should be managed by institutions of that global civil society – non-government organizations of sufficient autonomy to be immune to the inherently corrupting political power of particular states.
But with freedom – with the “autonomy of sports” – comes responsibility. Sport federations have grown to become powerful regulators with largely unfettered powers over an important (also, if not primarily, economic) segment of human activity. They enjoy factual or legally backed dominance over various participants in this sphere of activity – players, fans, sponsors, different sport industry entrepreneurs, etc.
Trust as the only source of legitimacy for autonomous sport federations
All institutions in civil society, sport federations being no exception, derive their actual authority and ability to operate effectively from one source and one source alone – the trust vested in them by society. Erosion of that trust quickly undermines their legitimacy and leads to inevitable encroachment of state powers into areas which for various reasons are best left to autonomous civil institutions.
We can see this for instance – or its variations – in what has been happening with the legal profession, the judiciary, the media, banking and finance and in other pillars of the market economy and a free society. Whenever civil institutions entrusted with the management of certain segments of human activity neglect their duty to gain and nurture society’s trust, and fail to thoroughly and vigorously promote ethical standards and integrity in their operations, the heavy hand of government intervenes. And often rightly so. Governments also have their own duties and responsibilities. They cannot remain passive in the face of failures when the institutions of civil society fail to fulfil their missions. These failures often result in violations of basic rights and freedoms of the most vulnerable members of society. And ultimately it is the state’s responsibility to protect and promote those rights and freedoms.
Significance of good governance in sport
The problem is, however, that government intervention might not just lead to rectification of damage inflicted by the failings of civil institutions and restoration of proper operation to those institutions. Rather, such intervention often leads to state power appropriating hitherto autonomous spheres of civil society. And, as stated above, in sports this can be as serious as anywhere else in a free society. Sports without proper management by autonomous institutions readily fall prey to government intervention and become susceptible to populist policies or can become channels for chauvinistic propaganda. They might become tools for social policies which can lead to serious political turmoil, repression against vulnerable members of society and even threats to peaceful coexistence between nations.
Only from this perspective can we truly appreciate the significance of the principle of good governance in sports. This principle has been stipulated in an international legal instrument – the Universal Declaration of Player Rights. Apart from stating fundamental player rights, such as the right to non-discrimination, free pursuit of profession and freedom from forced labour, or the right to fairly participate in the wealth generated by their activity, the Declaration states:
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.
The Declaration, although drafted by an organization devoted to protecting players’ rights (the World Players Association) can in fact be thought of as stating a more general human right – the right of members of civil society to have an important sphere of this society’s activity (sports) managed by autonomous, but honestly and professionally governed organizations. As proposed above, fulfilment of this can be vital for enjoyment of other rights and liberties by members of that society.
The significance of good governance in sport is also appreciated by the European Union, which indicates its promotion as one of its key policies in the sector. As noted by the Commission, good governance in sport is a condition for the autonomy and self-regulation of sport organisations.
Responsibility for instilling good governance in sport
Responsibility for instilling good governance in sport rests, first and foremost, with sport federations themselves. As unequivocally stated by the Universal Declaration of Player Rights:
His or her [the player’s] sport must adopt and implement the appropriate measures to ensure the enjoyment of the rights of the player and the maintenance of a sporting environment in accordance with this Declaration [inter alia in accordance with the principle of good governance] including by adequately protecting whistle blowers.
Hence, according to the Declaration, sport federations must not only refrain from violating human rights but must take positive measures to ensure these rights are respected and fulfilled and that their organizational culture contributes to this.
This is consistent with the obligations of sport federations as multinational enterprises (so-called “MNEs”). It is now uncontroversial that global sport governing bodies are MNEs in the sense of the OECD Guidelines for Multinational Enterprises – this is an international instrument setting forth standards of conduct for such international entities1. Given the socio-political potential of sports, the duty to promote good governance in sport federations should probably be seen as particularly significant under the OECD Guidelines.
And according to the Guidelines, MNEs are obliged to instil good governance among their various entities throughout their structures and enhance trust in the societies in which they operate. In accordance with principles 6 and 7 of the General Policies stipulated in the Guidelines, MNEs should:
Support and uphold good corporate governance principles and develop and apply good corporate governance practices, including throughout enterprise groups.
Develop and apply effective self-regulatory practices and management systems that foster a relationship of confidence and mutual trust between enterprises and the societies in which they operate.
If sport federations fail to instil trust by ensuring good governance in their disciplines, this responsibility shifts to the state. The nature of this state duty is particularly well described in the Resolution of the Parliamentary Assembly of the Council of Europe – “Good Governance and ethics in sport” (Resolution 1875 (2012) Final version). According to this resolution, governments must, in principle, respect the autonomy of sports. But this cannot justify their passivity if respective sport organizations fail in their duties to observe good governance. If the actions of a sport federation breach human rights or fail to fulfil them, a government not only can, but must intervene. The relevant passage of the Resolution reads:
Intervention by States in the fields covered must allow for the need to preserve the autonomy of the sports movement, but also for the need to ensure that this autonomy does not become an excuse for failure to react to the abuses eroding sports ethics and to acts covered, or which should be covered, by criminal law.
Failings at the national level and possible remedies
States and their national sport federations often do not do enough in practice to maintain principles of good governance. This is particularly true of those states which follow interventionist sport policies, especially in those disciplines which are not particularly well developed and popular in those states. Specialised state agencies (e.g. particular departments in sport ministries) and national sport federations active in particular disciplines, often intensively personally intertwined, are sometimes “partners in crime” against the principles of good governance in sports. The state remains in good relations with the national federation (with state officials often sitting in the federation’s bodies) and is not particularly willing to investigate or prosecute its failures, or might even directly benefit from these, for instance through involvement of state-owned businesses in the sport industry.
Those victimized by this are firstly the players, who are limited in or altogether deprived of the opportunity to fully develop their professional careers, and secondly entire societies, which are robbed of the socio-economic potential of entire sport disciplines and exposed to the above dangers of undue state interference in sports and abuse of sport for populist policies.
Not much can be done at the national level in such cases. Individual instances of wrongdoing can be prosecuted through the courts, although most of the time in lengthy and ultimately scarcely effective proceedings. More importantly, litigation at the national level can hardly lead to change in the organizational culture of local sport structures. This change must come from and must be sought after at the international level.
Global sport governing bodies must acknowledge, as has FIFA recently for example, that they are indeed global corporations whose peculiar field of operation makes them particularly significant from the viewpoint of promoting global civil society. They must therefore embrace the duties normally imposed on MNEs.
Hence, they must duly prevent and if necessary address violations of good governance principles within their structures, wherever those occur. They cannot “wash their hands” whenever a particular issue is local in character and concerns a national member federation rather than the global governing body itself. The OECD Guidelines, for example, make it clear that they apply to entire groups of entities and that holding (parent) entities can be held “vicariously” liable for failings by their associated entities.
They [MNEs] usually comprise companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways. While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another. Ownership may be private, State or mixed. The Guidelines are addressed to all the entities within the multinational enterprise (parent companies and/or local entities). According to the actual distribution of responsibilities among them, the different entities are expected to co-operate and to assist one another to facilitate observance of the Guidelines.2
States, on the other hand, must realize that they have their own obligations to actively promote good governance in businesses, including in sport federations, which are very special kinds of business entities. These obligations are clearly set out in the UN “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework“. These Principles stipulate unequivocally that states cannot limit themselves to prosecuting violations of human rights by businesses. They must impose and promote policies which would prevent such violations and must make both judicial and non-judicial remedies available to victims. State agencies informed about human rights violations by sport federations cannot, therefore, merely refer victims to relevant judicial processes, but must possess appropriate, functional investigatory and grievance mechanisms. They will otherwise themselves be in breach of human rights obligations.
The liability of states following interventionist sport policies might be even stricter. In many states, Poland for instance, national sport federations have special, legally backed privileges and exclusive, special rights. Such states can therefore be directly liable for the operations of such federations, which can be regarded as their own agencies, or else these states can be indirectly liable for the federations’ wrongdoing under the strict obligation to ensure that such wrongdoing does not occur (e.g. that the actions of the federation are consistent with the principles EU law, as required by article 106 TFUE). As required by the Commentary to the UN Principles:
States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.
Special responsibilities should be required of those states which are home to top sport governing bodies (Switzerland in particular). These states should be ready to actively demand that governing bodies established in their jurisdictions fulfil the standards applicable to global MNEs and do all that is required to promote good governance throughout the structures they head. In event of a violation perpetrated by a lower level member entity from another jurisdiction, they should be prepared to analyse how far this simultaneously constitutes a violation by the leading entity of its obligations to prevent or properly address such instances. This is especially so when particular violations of good governance principles are committed by local entities, in states which are not eager to properly address them. Global sport governing bodies must not be allowed to hide behind the veil of incorporation and benefit from unwillingness or inability of local authorities to prosecute wrongdoing by their local entities (member federations).
Finally, international human rights organizations have a significant role to play in promoting good governance in sports and thereby contributing to further development and protection of civil society. These have always been at the forefront of the fight for human rights and are increasingly active in the area of sports. Such organizations as the Centre for Sport and Human Rights or the World Players Association, which is an autonomous sector of the UNI Global Union, can be particularly effective in ensuring that good governance principles are instilled throughout the organizational structures of sports. They are particularly capable of promoting the necessary standards globally, through cooperation and affiliation with specialized non-government organizations in particular jurisdictions and disciplines and by way of various cross-border advocacy schemes and athlete ombudsman facilities. States are obliged to promote and support such initiatives.
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
1 National Contact Point of Switzerland, Initial Assessment Specific Instance regarding the Fédération Internationale de Football Association (FIFA) submitted by the Building and Wood Workers’ International (BWI), 13 October 2015.
2 OECD Guidelines, Chapter I, provision 4, p.17