By J. Tyrone Marcus*
- What a fascinating year for the world of sport! Although there were major World Cups and World Championships for various sports like cricket, netball, rugby and track and field, it seems that off-the-field matters took pride of place in 2015. Enter FIFA, Russia and the IAAF!
The FIFA Scandal and Caribbean Power Brokers
- While the world continues to recover from the shocking exposure of potentially deep-rooted corruption at football’s world governing body, the Caribbean region seeks to rebuild its own credibility with two of its sons of the soil being implicated in the FIFA corruption scandal. Incidentally, both of these individuals bear the same initials: JW.
- Both Jack Warner, from Trinidad and Tobago, and Jeffrey Webb, from the Cayman Islands, held the position of President of CONCACAF and have been named, among many FIFA officials either arrested, charged, extradited or investigated for bribery, racketeering, money laundering or some other form of financial mismanagement. Webb has agreed to be extradited to the United States, while Warner is still contesting the extradition process and has repeatedly declared his innocence.
- Warner’s case has brought together interesting elements of extradition law and administrative law and the question arises whether FIFA still had jurisdiction over a member who had tendered his resignation. It is noteworthy that, by virtue of Warner’s resignation from FIFA in 2011, the latter claimed that its Ethics Committee no longer had jurisdiction to investigate him and that his presumption of innocence was maintained. Yet, somehow in 2015, the very same Ethics Committee banned Warner for life, although Warner’s status as an ex-member has not changed. The question begs, what new development occurred that caused FIFA, who had no jurisdiction to discipline Warner in 2011 to now be able to so do in 2015. This apparent inconsistency only adds further questions to the operations of the already embattled governing body for association football.
The Court of Arbitration for Sport rejects the sole Caribbean FIFA candidate
- Former Trinidad and Tobago football captain, David Nakhid, took the bold step of entering the fray to replace Sepp Blatter as FIFA President. His enthusiasm was quickly stifled and his campaign truncated when FIFA ruled him ineligible to enter the Presidential race due to a failure to secure sufficient nominations from member associations. Nakhid appealed to the Court of Arbitration for Sport (CAS) whose concise ruling was summarised in a media release to the effect that “the CAS Panel found that one member association had issued declarations of support to two candidates, including one for Mr Nakhid, in violation of the applicable FIFA rules. As a consequence, those letters of support were disregarded, meaning that David Nakhid had not met the qualifying criterion of obtaining declarations of support from at least five member associations, and, accordingly, his candidature could not be validated.”
- It seemed, therefore, to simply be a case of failing to conduct proper due diligence checks rather than the unfolding of a sinister politically-motivated plot as some may have suggested. Unfortunately, for the former midfielder, he was caught offside on this occasion.
The ICC, Government Intervention and Suspended Bowlers
- The International Cricket Council (ICC) has endured its own series of legal and administrative challenges in recent years, none more controversial, arguably, than the changed governance model to promote the “Big Three” test playing nations, namely, India, England and Australia. The issue of sports governance, however, typically raises the question of autonomy, independence and government interference.
- Back in 2011, the ICC initiated governance amendments by demanding that its member boards strengthen their autonomy and truly purge themselves from government interference. It was suggested, then, that Pakistan, Sri Lanka and Bangladesh would have been the countries most affected by the ICC’s mandate. Yet, within the Caribbean, a special relationship exists between the Governments of the various territories and the West Indies Cricket Board (WICB) in a sport that has a rich history, both socially and politically. The uniqueness of cricket in the West Indies lies in the fact that the team is comprised of players from several sovereign nations, and not from single countries as with the other test-playing nations.
- It is at this juncture that matters of sporting autonomy surface since within the Caribbean there exists a Prime Ministerial Committee on the Governance of West Indies Cricket. As the name suggests, the committee is made up of Prime Ministers. Further, in November 2015, a CARICOM (Caribbean Community) Cricket Review Panel made the bold recommendation that the WICB be dissolved. The catalyst for the appointment of the Review Panel was the fallout from the aborted West Indies tour of India in October 2014, which led to a $42 million damages claim being made by the Board of Control for Cricket in India (BCCI). The publication of yet another report on West Indies cricket is reminiscent of 2007 when former Jamaican Prime Minister, P.J. Patterson, penned a detailed analysis on how the sport could be better governed.
- A recent newspaper article suggested that the ICC may very well embrace the role that Caribbean governments can play in moving the region’s cricket forward, especially given the present struggles the team is having on the pitch. One can only speculate whether the ICC will equally embrace the intervention of CARICOM if the latter questioned the recent bans placed on West Indies bowlers Marlon Samuels and Sunil Narine!
Anti-Doping: new Jamaican legislation effective in 2015
- Few persons would have anticipated that, when the World Anti-Doping Agency (WADA) resolved in Johannesburg in late 2013 to bring into effect a new World Anti-Doping Code, that the year 2015 would have ended in such spectacular fashion. The November 2015 report of the WADA Independent Commission (IC) was a sober reminder of the magnitude of the global fight for drug-free sport.
- The Executive Summary of the Commission’s Report noted that it had identified “systemic failures within the IAAF and Russia that prevent or diminish the possibility of an effective anti-doping program, to the extent that neither ARAF, RUSADA, nor the Russian Federation can be considered Code-compliant.” ARAF is the governing body for athletics in Russia and RUSADA is its National Anti-Doping Organization.
- With the full extent of consequences still to be seen from the Russia revelations, it is axiomatic that there will be increased scrutiny across the globe as far as anti-doping compliance is concerned. In this regard, Jamaica, arguably the most dominant sprinting nation within the last decade, must be commended for its proactive approach to doping regulation.
- On January 1, 2015, new anti-doping legislation came into operation in Jamaica following the passage in December 2014 of the Anti-Doping in Sport Act 2014. This statute repealed and replaced the 2008 edition of the Act, which was passed just before the Beijing Summer Olympics. The new legislation adopted and implemented changes now contained in the 2015 Code and currently serves as a useful model for other countries both within and outside the Caribbean. It seems quite fitting that a leading athletics nation is also seeking to set the pace in doping control as the 2016 Olympics beckon.
Conclusion: Sports Law in 2016
- There is every reason to believe that 2016 will be another year that churns out myriad sports law stories, many of which are likely to revolve around the Rio Games. Perhaps the implementation of the International Olympic Committee’s new Olympic Movement Code on the Prevention of the Manipulation of Competitions will dominate more than potential attempts at ambush marketing by Olympic non-sponsors, or maybe the FIFA presidential election will unearth further legal complexities that global sports lawyers will zealously debate. Whatever happens, international and Caribbean sport, should see another fruitful year both on and in the court!
*Senior Legal Officer, Ministry of Sport and Youth Affairs, Trinidad and Tobago and Legal Consultant to CANOC Broadcasting Inc., the Caribbean Media Rights Holders for the Rio 2016 Olympics. The views expressed here are not necessarily those of the Ministry of Sport and Youth Affairs, nor of CANOC Broadcasting Inc.