A practical model of governance
In a famous paper published in 1996, Rhodes argued that the word governance had too many meanings (he listed six) to be useful. Nevertheless, the term, if not all its possible meanings, has flourished to such an extent that it is now part of the everyday lexicon. Governance first became an important issue in the world of sport in 1999, when the so-called Salt Lake City scandal (Wenn, Barney and Martyn, 2011) forced the IOC to reform its structure and introduce major changes to the Olympic Charter. These reforms included measures to improve the organization’s governance, such as setting an age limit for IOC members (70 years old), restricting presidential terms of office to a maximum of 12 years, introducing a Code of Ethics to be overseen by an Ethics Commission, and setting up a nominations commission (now known as the Members Election Commission). In 2009 the IOC adopted its “Basic Universal Principles of Good Governance of the Olympic and Sports Movement” (IOC, 2008), generally referred to as the BUPs, and used its Code of Ethics to make them obligatory within the Olympic movement. In 2015, following scandals within the IFs for football (FIFA) and athletics (IAAF), the IOC issued a declaration on “good governance in sport and the protection of clean athletes”. It also welcomed the decision by the Association of Summer Olympic International Federations (ASOIF) to set up a working group on the governance of sport in order to evaluate the governance of its members and help them improve it (IOC, 2015).
Figure 27.1 The five questions associated with Perez's five levels of governance
Source: Author adapted from Perez (2003)
Figure 27.2 Perez's model applied to the IOC
Beyond Rhodes’s and other authors’ theoretical approaches, a practical approach to analyzing governance is provided by Perez’s hierarchical model, which divides governance into five levels, from day-to-day management to the legal framework within which an organization operates (Perez, 2003). Although this model was conceived in relation to the corporate world, it provides an excellent template for examining the structural governance of sport and its organizations. Perez drew up his model to answer five fundamental questions about an organization’s operating mode and structures (Figure 27.1).
Figure 27.2 shows the answers to these questions in relation to the IOC, following the reforms introduced in 1999 in the wake of the Salt Lake City scandal (for more details, see Chappelet, 2012). Under the Olympic Charter (rule 61), appeals against decisions made by the
IOC and its Executive Board can be taken to the CAS, but only in “certain cases” (not specified). However, the IOC explicitly designates the CAS as the sole body of appeal in the case of disputes between the IOC and an Olympic host city or its National Olympic Committee (NOC) (article 51.2 HCC, 2016). What is more, Olympic Games entry forms and the byelaws to rule 44 of the Olympic Charter stipulate that athletes and officials participating in the Olympic Games must submit “Olympic disputes" to the CAS. All the IFs that recognize the CAS have included a similar obligation for their competitions, notably in the case of disciplinary sanctions. Nevertheless, the CAS has overturned or modified numerous decisions made by sport’s governing bodies. For example, the CAS found against the IOC in a case brought by Canadian snowboarder Ross Rebagliati in 1998, and it suspended the IAAF’s rules on hyperandrogenism (athletes recognized as female but who have naturally high testosterone levels) following the Dutee Chand case in 2015, an issue not yet resolved in 2020. Another example is the CAS 2018 award cancelling the IOC’s doping bans on 28 Russian athletes while upholding the bans against 11 other Russian athletes a few days before the start of the 1’yeongChang Olympic Winter Games 2018 (Perez-Pena and I’anja, 2018).
In the case of the IOC, levels 1 to 3 of Perez’s model are comprised almost entirely of structures and rules put in place by the IOC itself through its statutes, whereas levels 4 and 5 involve external structures and require state intervention in the form of national and sometimes international laws. The IOC, like many other international sport organizations, most of which are associations set up under articles 60—79 of the Swiss Civil Code, is subject to Swiss law. In contrast, the CAS was set up as an arbitration tribunal under chapter 12 of Switzerland’s Federal Act on Private International Law (LDIP in the French acronym: Loi fédérale sur le droit international public). Olympic sport organizations welcome such cooperation with governments (and their laws) and accept the need to practice “good governance” (see, for example, point 7 of the BUPs) in exchange for maintaining their autonomy: they call this attitude “responsible autonomy” or, in other words, a sport organization deserves autonomy if it does “good governance”.
International law applicable to sport is still in its infancy. To date, it covers just four areas, each of which is the subject of an international treaty:
- • Spectator violence and misbehavior (Council of Europe, 1985, 2016);
- • Corruption (not only in sport) (UN, 2003);
- • Doping in Sport (UNESCO, 2005);
- • Manipulation of sports competitions (Council of Europe, 2014).
The Council of Europe’s 2014 Convention on the Manipulation of Sports Competitions and 2016 Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events, which builds on the 1985 Convention on Spectator Violence and Misbehavior, have now (in 2020) been ratified. The 2005 UNESCO Convention on Doping in Sport and the 2003 UN Convention Against Corruption have also been ratified by many countries and therefore incorporated into their national legislation. Countries which ratify the Convention Against Corruption (public and private, passive or active) are required to criminalize corrupt practices, such as bribery, influence peddling, fraud, and money laundering, if these practices are not already criminal offenses under existing national laws. Other conventions against corruption, such as those drawn up by the Council of Europe and the Organization for Economic Cooperation and Development (OECD), may also apply to sport cases.
Moreover, judicial authorities are increasingly using national laws to sanction misconduct in sport. As noted previously, many sport organizations are subject to Swiss law, with the result that some have felt the attentions of Switzerland’s civil and criminal prosecutors (FIFA affairs.
see Chappelet, 2010). However, such actions are not restricted to Switzerland. For example, in 2016 France’s Financial Prosecutor’s Office opened an inquiry into a former IAAF President, and Brazilian prosecutors carried out investigations into allegations of ticket-touting by an IOC member and corruption by the president and director general of the Rio 2006 organizing committee (who all deny the accusations). Some countries, notably Germany, Austria, France, Italy, and Kenya, have made doping by athletes a criminal offense (trafficking in performanceenhancing drugs is a criminal offense in most countries).
However, the most notable development has been the United States justice system’s increased willingness to police international sport. High-profile examples of this include the US Attorney General asking the Swiss authorities in 2016 to arrest 12 FIFA members of its executice committee for extradition to the United States, and an investigation by a New York district prosecutor into doping at the 2014 Winter Olympics in Sochi, Russia. Such actions are made possible by US laws such as the Racketeer Influenced and Corrupt Organization (RICO) Act and the Foreign Corrupt Practices Act (FCPA), which extend US jurisdiction beyond the United States’ geographical borders (Henning, 2016; Lipschütz, 2009). The Rodchenkov Act discussed in the US Congress in 2020 would criminalize doping and give American prosecutors unprecedented authority over global sport.