Governmental interference versus governmental intervention in sport

BY RICARDO WILLIAMS[1]


Introduction

It is a salient fact that international sports governing bodies have taken an inflexible approach on an increased political interference in sports organisations. Rightly so, as they are private organizations and are independent in their management and operations.

There have been occasions that national sports governing bodies have used the “defence of government interference” conveniently to refuse to participate in a government joint venture that would benefit the sports body. Further, a government may want to get more involved with a sports governing organisation due to allegations of fraud and corruption and the term government interference is thrown about loosely. It is important to determine what are the subtle differences between governmental interference and governmental intervention in sport, which have been used interchangeably and which can create some confusion.

This article will attempt to add some clarity as to the interpretation of governmental interference versus governmental intervention; also briefly look at the autonomy or non-interference rules of a few of the major sporting organisations; and examine some actual examples of these rules as enforced over the years. Also, we will make a cursory analysis of the different types of approaches when governments intervene and the practicalities of such approaches.

 

The rules governing interference

Many of the international sports governing bodies have provisions in their respective constitutions and/or governing documents that specifically deal with the issue of governmental interference. A few extracts of those rules are mentioned below.

 

International Olympic Committee (IOC): Olympic Charter

Chapter 2 Rule 16 (1.5) of the Olympic Charter[2], states:

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.” [emphasis added]

This rule requires that the running of the IOC itself and its members remains free from any sort of governmental interference, in that they will not accept any directive or instructions that would interfere with its governance.

Chapter 4, Rule 26.6[3] states:

The NOCs must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.” [emphasis added]

As a result, the implication is that the rule requires NOCs to maintain their independence and withstand any type of pressure from governments and other third parties, and, importantly, which may prevent them from complying with the principles of the Olympic Charter.

The Charter under Chapter 4 Rule 9[4] states:

Apart from the measures and sanctions provided in the case of infringement of the Olympic Charter, the IOC Executive Board may take any appropriate decisions for the protection of the Olympic Movement in the country of an NOC, including suspension of or withdrawal of recognition from such NOC if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NOC or the making or expression of its will to be hampered. The IOC Executive Board shall offer such NOC an opportunity to be heard before any such decision is taken.” [emphasis added]

Thus, subject to the Rules of Natural Justice, failure to abide by the Olympic Charter will have consequences and as such the IOC will take appropriate action, including the suspension or withdrawal of recognition of an NOC, as it relates to the particular circumstances.

The reason for the IOC having such strict guidelines is to ensure the autonomy of its members, so that they remain free of any political interference, nepotism and discrimination.[5]

 

Fédération Internationale de Football Association (“FIFA”)

The world governing body for association football (soccer) has similar rules or principles within its statues to those of the IOC with respect to non-governmental interference.

Art. 14 para. (1) (i) of the FIFA Statutes[6] states that national federations are obligated:

To manage their affairs independently and ensure that their own affairs are not influenced by any third parties.” [emphasis added]

Paragraphs 2 and 3 of the same article, when read, in tandem, essentially provide that such a federation can face sanctions from FIFA for infringing para. 1(i), even if the infringement is not the fault of the federation.

Art. 15 of FIFA Statutes[7] mandates their member federations, at the very least, to incorporate within their statutes, provisions dealing with neutrality in political and religious matters, also “to be independent and avoid any form of political interference” [emphasis added].

Further, art. 16[8] gives FIFA the power to suspend a member federation, which is in breach of any obligations under the FIFA Statutes.

Over the years, FIFA has banned or suspended various football federations, such as Nigeria, Brunei, Ghana, and Kuwait, because of governmental interference in the running of their football federations. In fact, there are at least fourteen members that have been suspended by FIFA because of political or governmental interference since 2004.

 

World Athletics (“WA”) (formerly IAAF)

Art. 13.1 (C)[9], in essence, outlines that any acts by a government, which may conflict or derail one of the purposes of the WA, would be considered interference and a suspension may apply.

 

International Cricket Council (“ICC”)

Art. 2.4 (c) of ICC Constitution[10] states:

“[…] ensure that: (i) its statutes provide a process for free and democratic elections and appointments from amongst its members (or nominees from outside its members) for its executive body; and (ii) it determines its office-holders by free and democratic elections in accordance with the process set out in its statutes […].”

Article 2.4 (D)[11] states:

“[…] manage its affairs autonomously and ensure that there is no government (or other public or quasi-public body) interference in its governance, regulation and/or administration of Cricket in its Cricket Playing Country (including in operational matters, in the selection and management of teams, and in the appointment of coaches or support personnel).” [emphasis added]

As a consequence, the ICC imposes an obligation on members to provide a process for free and democratic elections and to ensure that there is no governmental interference in its governance and/or administration of cricket.

 

Actual governmental interference

ICC

In 2019, the ICC suspended Zimbabwe for failing to ensure there is no governmental interference in its running of the sport. Zimbabwe were in breach of art. 2.4 (c) and (d) of the ICC Constitution. ICC funding was withdrawn and frozen and their representative teams were barred from participating in ICC events.

ICC Chairman, Shashank Manohar stated:

“We do not take the decision to suspend a Member lightly, but we must keep our sport free from political interference. What has happened in Zimbabwe is a serious breach of the ICC Constitution and we cannot allow it to continue unchecked.[12]

 

World Athletics

It was in or around 2006, the IAAF, now World Athletics, suspended Algerian track and field athletes from all international competitions after the world governing body suspended the country’s athletics federation. This was a result of a decision by a government minister to dissolve the executive officers of the national federation with an interim committee.

The then IAAF President, Lamine Diack, was quoted as saying:

“The IAAF [now World Athletics] will strongly support the independence of democratically elected federations against all forms of government interference.[13]

 

FIFA

There are numerous instances where FIFA has had to take action against its members as a result of political or governmental interference.

Nigeria

In 2010, FIFA imposed sanctions on the Nigeria Football Federation (NFF) because of governmental interference. Nigeria was sanctioned, due to the decision of the President, Goodluck Jonathan, to ban the national side from all international competition for two years. Though he may be justified in that the NFF had serious allegations of widespread corruption coupled with terrible performance at the World Cup, ultimately there was governmental interference into the affairs of the NFF.[14]

In 2014, the NFF was again suspended, after a court ordered the Minister of Sports to appoint a civil servant to run the federation. The NFF was later reinstated after the court order was revoked.[15] [16]

Greece

Over the years, FIFA had issued many warnings to the Hellenic Football Association and the Greek government that the running of the federation should be free from any kind of political involvement.

In 2004, the Greek government adopted a new law, which increased government involvement in the running of the professional football leagues in Greece. As a consequence, FIFA found that the Greek government had broken rules on the independence of members and decision-making in that country. The Hellenic Football Association was banned by FIFA from any involvement in international competitions.[17]

The ban was subsequently revoked, when the Greek government amended the law restricting the independence of the Hellenic Football Association.

Kuwait

In 2016, Kuwait was suspended by FIFA because there was government legislation, which prevented the national football association and the clubs from carrying out their operations independently.

The Kuwait Football Association was suspended from football activities by FIFA three times, once in each of 2007 and 2008, and once in October 2015.[18]

The Iraqi Olympic Committee

In 2008, the Iraqi government took the decision to disband the country’s National Olympic Committee. Iraq was subsequently suspended from participating in the 2008 Olympics in Beijing, due to the ongoing political interference by the government in the sports movement in Iraq.

 

Government intervention

Many professionals, when describing government’s actions or inactions with reference to sports’ governing bodies, sometimes use intervention interchangeably with interference.[19] Other times, intervention is used in the context of preventing something bad from happening or to prevent or alter a result or course of events.

Interfere usually has an unpleasant connotation. Generally speaking, the person or party doing the interfering is up to no good.

Governments may get involved in sports for different reasons, such as, promoting fitness and health, promotion of a community or nation, reproduce societal values, promote international cohesion and facilitate economic growth.

However, governments tend to intervene for varied reasons, from sinister political agendas to constructively intervening to address matters that may be fundamentally wrong.

Governments participation in sport has evolved over the years and has a greater involvement in how sport is governed. There are number of contributory factors for this:

–  the overwhelming financial contribution by governments in sport, as such has led to a greater say in how taxpayers’ money is spent;

–  many issues sporting bodies are confronted with are beyond their direct ability to control;

–  sport itself has support from governments, whether it be legislative, operational and financial on complex issues;

–  public and media pressure has both expected and demanded that governments take a direct involvement in sporting matters, citing the huge impact it has on both foreign and domestic policy.[20]

Thus governments are arguably the most important stakeholders in sport or one of the most important. As an important stakeholder, governments have to be mindful of their roles in sport and their relationship with sports’ governing bodies. Though governments’ intervention in sport is inevitable, they have to consider their approach in wanting to improve governing issues and the like without disrupting the autonomous nature of sports governing bodies.

There are three main approaches in which governments intervene in terms of regulating sport:

–  interventionist model;

–  non-interventionist model; and

–  public-private partnership.

 

Interventionist model

This is a direct intervention based on the premise that sport is a public function that the state has the right and the responsibility to deliver, achieved by implementing “specific legislation and or regulatory measures” on the structure and mandate of a significant part of the nation’s sports movement. Many southern and eastern European states, of which many sports organizations are created and existing by virtue of governmental licence and funding, intervene specifically in order[21] to fulfill that responsibility as agents of the state.[22]

In France, for example, their state authority[23] provides that the “development of physical activities, sports and high level sports is incumbent on the state”.[24] France’s Ministry of Sport is responsible for the promotion of sport to all age groups, and for the management and supervision of government grants to sports.

The above scenario will give rise to two issues:

1  potential governmental interference in sporting decisions; and

2  direct state intervention in the regulation and operation of sport.

However, there are instances where a government may intervene by legislative means where it is necessary to legislate specifically and directly on issues relating to the sports sector, whether or not in pursuit of specific sporting objectives. For example, in the UK, two pieces of legislation that are noteworthy are, the Safety of Sports Grounds Act 1975[25] and the Football Offences Act 1991[26].

 

Non-interventionist model

Many countries have traditionally taken up this method. The idea of governments getting involved in the actual operation of sport has generally been frowned upon. Governments have taken up this approach, by generally leaving sport almost entirely up to each specific sport, to organize and manage itself, and also to regulate the entire conduct of sport.

However, instead, a government may use exhortation, persuasion and pressure on a sports’ governing body to act in a certain way. This approach sometimes sees governments imply they may be forced to resort to legislative action or policy direction if a certain route is not taken. At the same time, they cautiously stress only that this is their opinion as an interested and knowledgeable bystander.[27]

In 2007 for example, the Australian Prime Minister, John Howard, put a lot of political pressure on Cricket Australia (CA) to voluntarily cancel the tour of Zimbabwe. They did not do so.

The Australian government subsequently banned the national cricket team from their upcoming three-match tour of Zimbabwe. They cited legal regulations allowing them to withhold the passports of players as justification for their actions. As a result, the Australian government avoided making a politically uncomfortable US$ 2 million payment to Zimbabwe Cricket and its chief patron Robert Mugabe.[28]

 

Public-private partnership

Public-private partnership can also be referred to as an indirect intervention, which has been increasing because of the perception that government sports policy can only be implemented in partnership with the private sports movement and the recognition that such a partnership and the increased public funding that comes with it, must be on a professional basis in accordance with normal public standards of transparency, equity and accountability.

Governments’ financial contributions to sport in many countries, along with the public interest, give a powerful policy making tool to achieve social and political objectives. The European Commission has identified that sport fulfills an education function, a public health function, a social inclusion function, a cultural function and a recreational function, making it a particularly effective weapon in the fight against intolerance, racism, violence, alcohol and narcotics abuse.[29]

The tremendous public interest in sports, its social and economic importance, the role it plays in society and the large and continuous investment of public funds, all these factors and more are reasons why there is encouragement or pressure on governments to intervene in sport. Together with the growing need for government assistance whether it is legislative, operational and or financial.

This approach conditions sports’ governing bodies’ access to public funding on compliance with public policy objectives in the sector. This type of partnership has prompted several governments to seek reform and modernization of some of the practices of the private sports movement, amounting to a degree of intervention in the administration of sport, as well as in its regulatory imperatives, that departs significantly from the traditional method.[30]

Thus recognition of a sports’ governing body and access to public funds are coming to depend on compliance not only with objective standards on public interest issues, but also on issues relating to corporate governance and accountability that see the government taking a far more interventionist role, albeit indirectly.

There is an increased willingness by governments to intervene constructively to address issues said to be fundamentally wrong in sport, including mismanagement, poor governance, corruption and fraud. After all, governments are often big financial stakeholders and contributors to sport.

There are a number of countries that have adopted the public-private partnership approach in lifting their countries sporting sector to another level. Countries, such as Australia and the United Kingdom, have collaborated with sporting organizations and gained just rewards. Their involvement or intervention has been through their respective public sports’ agencies. These agencies usually work in conjunction with the respective national sports’ governing bodies and, most importantly, respect the autonomy of the sporting organisations in fulfilling their mandates.

 

Australia’s intervention

Australian Sports Commission (“ASC”) is the Australian Government agency responsible for supporting and investing in sport and physical activity at all levels. The ASC unites two other entities, namely Sport Australia and Australia Institute of Sport.

These organizations invest, collaborate, partner with national sporting organisations and are focused on improving the capacity and capability of national sporting organisations to create a sustainable and cohesive national sports sector.

As part of ASC’s vision “[they] work together with the sport industry and the wider community to champion the role sport can play in engaging every Australian.”[31]

 

United Kingdom’s intervention

Likewise, in the United Kingdom, there is the Department for Digital Culture, Media and Sport, which the public agencies, such as UK Sport, UK Anti-doping and Sport England, fall under.

UK Sport focuses on Olympic and Paralympic sports and provides strategic investment to enable these sports and athletes to achieve their full medal winning potential.

Their investment is wide ranging from grassroots, performance solutions, events, governance, leadership, financial accounting to technology.

In the UK, as a result of the establishment of the “Code for Sports Governance”, organizations must adhere to “gold standards” of transparency, accountability and financial integrity.[32] [33]

 

The code calls for:

–  increased skills and diversity in decision-making, with a target of at least 30% gender diversity on boards;

–  greater transparency, for example, publishing more information on the structure, strategy and financial position of the organization;

–  constitutional arrangements that give boards the prime role in decision-making.[34]

UK Sport and Sport England mandated the adoption and implementation of the Code, which imposes specific governance principles and rules affecting the institutional make-up of sports regulators, by NSOs funded by the government. Chief Executive of Women in Sport, Ruth Holdaway, stated:

 

If sport wants to be publicly funded, it must reflect the public it serves.[35]

There was also public warning to the UK’s Football Association. In July 2016, the Sports Minister in the UK expressed the view that England’s Football Association would face the prospect of the withdrawal of government funding if it did not engage in institutional reform. This aim was to foster best practice and modernize the governing principles of the Football Association.

 

European Union

On a European level, the EU specifically states its respect for sports organisations’ autonomy, but promotes compliance with the following principles:

–  democracy;

–  transparency;

–  accountability in decision-making;

–  inclusiveness in the representation of interested parties.

A “Good Governance” Expert Group in September 2013 published Principles of good governance in sport[36] which called on sports authorities to set out in published materials clear statements of their objectives, rules and processes, as well as to adopt democratic processes which engaged with relevant stakeholders. The EU has intervened in trying to provide a template for good governance principles in sports organisations throughout Europe.

CARICOM and Cricket West Indies

The Caribbean Community, better known as CARICOM[37], is slowly recognizing there needs to be more governmental involvement and intervention in sport. This has been seen especially in cricket, as it is the sport that unifies the Caribbean in providing a team that represents all the Caribbean.

Over the last twenty years, West Indies cricket has been on a continuing downward spiral. As such, in 2015 the CARICOM member states commissioned a Prime Ministerial Committee to report on the governance of West Indies cricket. The main mandate of the panel was to review the administrative and governance structure of the West Indies Cricket Board, now Cricket West Indies. CARICOM, amongst other things, contended that governance and transparency were paramount for a successful turn around of West Indies cricket.

The report[38] stated, inter alia:

The shareholders of West Indies cricket, led by the WICB, however, rely on the active involvement of other stakeholders of the game to deliver its product. These include several Caribbean governments who finance the construction and maintenance of the stadia where the game is played; […]”

The report further stated:

In spite of substantial transformation and modernization of the business of cricket in other countries such as Australia (Cricket Australia) and England (England and Wales Cricket Board), the governance of West Indies cricket has failed to evolve in a manner which accords with the exigencies of the modern game, but continues to be governed by a structure that is not reflective of the transformation of the game elsewhere.[39]

Though laudable, their approach was found wanting. CARICOM was pursuing a “legislative approach” in an effort to achieve its objectives. In addition, a recommendation of the report called for the “immediate dissolution of the West Indies Cricket Board and the appointment of an Interim Board”.[40] [41]

Of course, there was no other response expected from the Cricket West Indies than what CARIOM intended amounted to governmental interference.

 

Conclusion

It goes without saying; that governments are one of the biggest and influential stakeholders in sport. They have contributed financially, legislatively, operationally and have used sport to impact positively in communities of their respective countries. As such, they have a strong argument to intervene when necessary. The question is how can they intervene without interfering negatively in any particular sports movement.

Governments should ultimately use a public-private partnership approach. With this approach, they can intervene through collaboration, facilitation and partnership, in pursuance of good governance principles, transparency and accountability. It should be a symbiotic relationship, especially as the sporting sector frequently relies on legislative, operational and/or financial assistance.

Governments can legislate and set out regulations for the benefit of sport as a whole without interfering with sporting bodies’ autonomy. Legislation is often required to assist sport, whether it is for international sporting events, such as the Olympics, anti-doping legislation, hooliganism and ambush marketing. However, legislation and regulatory measures by governments should never seek to directly intrude or interfere with the operations, management, structure and governance of a sports movement.

Thus, each government has to have a good understanding of the parameters of their roles and functions. A government can intervene, when it is necessary, but has to do so without interfering and thereby encroaching on the autonomy of sports’ governing bodies.

 

[1] Sports lawyer, Port of Spain, Trinidad and Tobago, West Indies. E-mail: ricwil306@hotmail.com.

[2] Olympic Charter June 2019.

[3] Ibid.

[4] Ibid.

[5] See Roshan Gopalakrishna, “Government “Interference” in Sport”, in: SLPC Blog, available at https://lawnk.wordpress.com/2011/08/06/government-interference-in-sport (accessed 3 June 2020).

[6] FIFA Statutes 2019 Edition.

[7] Ibid.

[8] Ibid.

[9] World Athletics’ Constitution (November 2019).

[10] ICC’s Article of Association 2017.

[11] Ibid.

[12] ICC Media Release, 18 July 2019, available at www.icc-cricket.com/media-releases/1288479  (accessed 3 June 2020).

[13] “IAAF suspends Algerian federation”, in: The Sydney Morning Herald, 14 November 2006, available at www.smh.com.au/sport/iaaf-suspends-algerian-federation-20061114-gdotp5.html (accessed 3 June 2020).

[14] “FACTBOX-FIFA suspensions caused by political interference”, in: Reuters, 28 November 2016, available at www.reuters.com/article/myanmar-rohingya-malaysia-soccer-backgro/factbox-fifa-suspensions-caused-by-political-interference-idUSL4N1DO3H0 (accessed 3 June 2020).

[15] Ibid.

[16] “List of Countries Affected FIFA sanctions”, in: Tivad News, available at http://tivad.blogspot.com/2011/03/list-of-countries-affected-fifa.html (accessed 3 June 2020).

[17]  Lucy Trevelyan LLB, “Government involvement in sport”, in: In Brief, available at www.inbrief.co.uk/sports-law/government-involvement-in-sport.

[18] Supra 14.

[19] “Ministry of Sports, SporTT stay clear of NGB interference”, in: Trinidad & Tobago Guardian, 16 March 2016, available at www.guardian.co.tt/article-6.2.351927.63ff4f1244 (accessed 3 June 2020).

[20] Adam Lewis and Jonathan Taylor, Sport: Law and Practice, 2 Edn. (Bloomsbury Professional).

[21] European Commission, The development and prospects for Community action in the field of sport (Brussels 1998).

[22] Supra 20.

[23] “Loi du Sport”.

[24] Supra 20.

[25] In response to the collapse of a stand at Ibrox Stadium in 1969 killing 66 spectators.

[26] Which created football specific crimes to address football hooliganism.

[27] Supra 20.

[28] Michael Herborn, “Australian government bans cricket team from Zimbabwe”, in: Play the Game, 24 May 2007, available at www.playthegame.org/news/news-articles/2007/australian-government-bans-cricket-team-from-zimbabwe (accessed 3 June 2020).

[29] Supra 21.

[30] Supra 21.

[31] Australian Sports Commission: www.sportaus.gov.au/sportaus/about (accessed 3 June 2020).

[32] “Funding warning for sports governing bodies under new gender diversity code”, in: BBC Sport, 31 October 2016, available at www.bbc.com/sport/37823821 (accessed 3 June 2016).

[33] UK Sport: www.uksport.gov.uk/our-work/about-us (accessed 3 June 2020).

[34] Ibid. 32.

[35] Ibid.

[36] Expert Group on Good Governance, 21 July 2016.

[37] CARICOM is a grouping of twenty countries in the Caribbean: fifteen member states and five associate members.

[38] Final Report of the Review Panel on the Governance of Cricket, October 2015, available at https://caricom.org/final-report-of-the-review-panel-on-the-governance-of-cricket (accessed 3 June 2020).

[39] Ibid.

[40] Ibid.

[41] “CARICOM laying groundwork to restructure West Indies cricket”, in: Jamaica Observer, 4 April 2018, available at www.jamaicaobserver.com/latestnews/CARICOM_laying_groundwork_to_restructure_West_Indies_cricket (accessed 3 June 2020).