Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).
The notion that “fish
rots from the head down” is known to many cultures and serves as a practical
reminder on what is at stake in the current wave of anti-corruption / integrity
and good governance initiatives. The purpose of this blog post is to provide a
short update on the recent founding of the International Partnership against
Corruption in Sport (IPACS), intermittently known as the International Sports
Integrity Partnership (IPAS), and to propose some critical perspectives from a
legal scholar’s point of view.
During the past couple
of years, the sports world has seen a never-ending wave of corruption
allegations, often followed by revelations, incriminations and new allegation.
There are ongoing investigations, most notably in the United States where the
U.S. Department of Justice has just recently intensified its probe
into corruption at the major sports governing bodies (SGBs). By all accounts,
we are witnessing only the tip of the iceberg. And after ten years of debate
and half-hearted reforms, there is the widespread notion, as expressed by the
Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution
2199/2018 that “the sports movement cannot be left to resolve its failures
alone”.
What is IPACS and why has it been created?
IPACS was founded under the
authority of the International Olympic Committee (IOC) as “a cross-sectorial,
multi-stakeholder platform to enable a pragmatic partnership allowing the
development and implementation of programmes and initiatives by the various
partners, to strengthen efforts promoting transparency, integrity and good
governance in sports organisations, in particular through education and
awareness-raising initiatives.” These words, taken from the Declaration of the Second
International Forum for Sports Integrity (IFSI), held in Lausanne on 15
February 2017, provide a summary of the tasks IPACS was agreed to address. Interestingly,
later on the official mission
statement was significantly watered down: “To bring together international
sports organisations, governments, inter-governmental organisations and other
relevant stakeholders to strengthen and support efforts to eliminate corruption
and promote a culture of good governance in and around sport.” This change
mission statement betrays some of the controversies that lie behind the
difficult quest for good governance and integrity.
One obvious question is why was it
only in 2017 that IPACS was created? The short answer is that IFSI took up an
idea that had been put forward at the UK
Anti-Corruption Summit one year earlier. However, the real question is, why
did this initiative emerge only in 2016/17 after corruption scandals had been
hitting SGBs over the entire past decade and had become particularly acute with
FIFA
around 2010? The reason is that there is a major undercurrent in fighting
corruption in SGBs: the doctrine of the autonomy of sports. For historical
reasons, most major SGBs have been created as private entities, often
associations or non-commercial entities, and are adamant at defending the
notion of independence and autonomy of sports. While international
anti-corruption conventions by the nature of international law address only
states, SGBs are in the fortunate position to have to comply only with the
criminal laws of their host state. And despite the fact that the commercialisation
of sports has turned SGBs into multi-billion dollar ventures, since their
inception their internal structures have resembled “gentlemen’s clubs”. It
therefore comes as no surprise that even in the IFSI Declaration of February
2017, participants are eager to refer to the 69th United Nations
General Assembly proclaiming the autonomy of sports and shifting the
responsibility in fighting corruption primarily to governments.
This undercurrent explains why the original
IPACS mission statement calls for a “pragmatic partnership” and emphasizes
education and awareness-raising initiatives. The truth is that even by 2017,
many stakeholders (“participants to the IFSI Declaration”) were fighting to
protect the independence of SGBs teeth and claw. And that only now a consensus
is emerging, as expressed in the CoE PACE Resolution 2199/2018, that “enough is
enough” and that SGBs have actually failed in cleaning up their business. Earlier
resolutions, e.g. by the 14th
CoE Conference of Ministers responsible for Sport from 22 February 2017,
have been more diplomatic in language. But it is clear that IPACS, despite all
defensive battles from SGBs, is now representing a change in the tide of
governments and anti-corruption related international organisations (such as
CoE, OECD and UNODC) finally eager “to talk tough” with SGBs.
Is “talking tough” with SGBs credible?
Now, even if we assume
that the most recent investigations into corruption scandals were the straw
that broke the camel’s back, will international anti-corruption organisations
and governments be credible in fighting corruption by breaking up the doctrine
of sports autonomy? Switzerland has been in the vanguard of national
governments extending the offense of corruption in the private sector to NGOs
and other non-commercial entities. This new offense (Arts 322octies
– 322decies Swiss Criminal Code) is innovative because it does no
longer require a distortion of the market. GRECO is reported to be preparing a
“Typology Study on Private Sector
Corruption” which will also cover the sports sector.
International anti-corruption
organisations, by contrast, have a more careful line to tread. Arguably, there
is a host of integrity-related problems in the world of sports that has been viewed
for a long time in a reductionist way. Doping, match-rigging and other kinds of
manipulation of sports events have ever too often been seen independently of
the governance regimes of SGBs. Looking at them as individual wrongdoing at
best supported the argument that SGBs may not have been vigilant enough. But
this never came close to insisting that such kinds of wrongdoing are the
logical consequence of structural governance defects in these bodies. As IPACS
is now marking a shift in the consensus towards a more holistic and
interventionist approach, what will this mean for international anti-corruption
organisations? The problem is that during the past decade, many of them were
only too happy to focus on singular problems while being co-opted by SGBs into
“partnerships” to “address” governance issues. Analytically, this can be described
as a horizontal legitimacy-building strategy by SGBs. By concluding memoranda of
understanding, e.g. between the IOC and the UN
or between FIFA and the CoE,
SGBs, depending on their level of regional or universal activities, co-opted
their potential critics and tried to acquire legitimacy by involving them into so-called
reform processes.
Arguably, by being drawn
into piecemeal reforms of SGBs over the last decade, international
anti-corruption organisations have become part of the problem. The question is,
how can they become part of the solution again? This is where IPACS presents an
answer: it can be understood as a tacit dissolution of the prevailing
partnerships and, depending on style and substance, offering a fresh start for
a holistic and thus governance-related approach to establishing integrity.
How is IPACS going about its work?
As mentioned before,
IPACS was created in the wings of the Second IFSI, held on 15 February 2017 in
Lausanne, and it will operate within the broader IFSI structure. By 2019 when
the Third
IFSI is scheduled, IFSI participants will therefore review a progress
report on the activities realized which invariably includes any progress made by
IPACS.
The work of IPACS itself
is structured on three levels. There is a core group in which the most
important anti-corruption international organisations are represented, a Working
Group which is basically a tripartite structure representing the interests of SGBs,
governments and inter-governmental organisations, and topical task forces. Core
group members (CoE, IOC, OECD, UNODC and the UK Government) are in charge of
preparing and co-ordinating the Working Group meetings. The first Working Group
meeting took place at the CoE’s venue on 21 June 2017, the second Working Group
meeting was held at the OECD on 14-15 December 2017. The third Working Group
meeting is scheduled for June 2018 at the IOC’s headquarters in Lausanne.
So far, three task
forces with experts from outside the Working Group have been established:
- Task force 1 (TF1) on reducing
the risk of corruption in public procurement;
- Task force 2 (TF2) on
ensuring transparency and integrity in the selection of major sport events,
with an initial focus on managing conflicts of interest; and
- Task force 3 (TF3) on
optimising the processes of compliance with good governance principles to
mitigate the risk of corruption.
The expected
outputs from these task forces are as follows:
(1) TF1 to develop by the end of 2018 a general mapping of procurement
standards to the specific context of sport, possibly complemented by
illustrative case studies on how these standards could be applied in practice.
(2) TF2 to define conflict of interest in the specific sports context and
undertake a stock-taking exercise of procedures and practices for managing
conflict of interest in the specific context of the selection of major sporting
events.
(3) TF3 “to aim to”
- map relevant governance
standards and their applicability to the sports context;
- consider developing
indicators to evaluate compliance with these standards;
- consider means for
building capacity to implement good governance standards.
From the wording it
appears that from TF1 to TF3, the tasks get ever larger and the commitment ever
more unspecific. While TF1 is given a precise task with a definitive deadline, TF3
is asked to “aim to” reach certain goals. But this specific wording is perhaps
a correct reflection of the difference in the scope of the problem. Procurement
standards can easily be adopted from the corporate world. There is no specific
challenge in running procurement for SGBs. Conflicts of interest, in particular
when selecting major sports events, are of a different magnitude. Very often,
the traditional ways of addressing such conflicts in the corporate setting or
in public administration are clear-cut and addressed in a number of regulations.
In SGBs which have been traditionally considered as “gentlemen’s clubs”,
conflicts of interest run through the entire fabric of the institution.
Therefore, the magnitude is much larger. But the real issue is how shall the
mandate of TF2 be distinguished from that of TF3? Conflicts of interest and bad
governance are twin concepts, and both flourish in the same environment. So,
let us now turn to the central question: what can be expected from the most
crucial TF3 in the IPACS setting?
Do governance standards finally get applied?
In its first set of
assignments, TF3 is asked to look into “relevant” governance standards, map
them and analyse their applicability to the sports context. What sounds like a
logical sequence of steps is actually quite muddled. Judging what is relevant
and what is not is certainly the task at hand, but if we assume that “relevant
standards” have been found, why is it necessary in a second step to “analyse
their applicability in the sports context”? Is not applicability in the sports
context the key criterion for judging what is relevant and what is not? Or will
there first be other criteria for judging relevance outside from applicability
in the sports context?
The point here is not to
ridicule the language of the task force assignment, but to point to a deeper
problem. Over the entire past decade, there have been numerous projects seeking
to identify relevant governance standards. Without going into this issue very
deeply, let me name just the most important ones:
In addition, when it
comes the second set of assignments to TF3, in particular “developing
indicators to evaluate compliance with these standards”, the following
benchmarking tools already exist:
So all things
considered, a large amount of work has already been done to identify relevant
standards for SGBs. Would it not simply be enough to take these project results
seriously and start implementing them and evaluate their effects? Indeed, from
an outside observer’s point of view, it looks as if this entire process is flawed.
There is simply no need to go into another round of identifying standards,
assessing their relevance and benchmarking them with indicators when all the
work has already been done.
One argument to
support the TF3 engagement is that there are simply too many different
standards, and that, when it comes to governments intervening with SGBs and
forcing them to adopt good governance standards, there should be one agreed-upon set of standards for all
cases. Likewise, CoE PACE Resolution 2199 (2018) “strongly calls for the
development and implementation of a solid set of harmonised good governance criteria” (italics not in the original).
And in para 4 of the appendix to this Resolution, PACE even speaks of the
necessity of identifying “core criteria” of good governance in sport. While
such quest for harmonising and reducing to core elements may be intellectually stimulating,
there is doubt whether the sports world can accept another round of soul-searching.
The fish has already been rotting for a while, and the same “brave men” (aka
experts) who had been dealing with the issue for a decade are now employed
again in yet another attempt of the international community to clear up the
mess of SGBs. We will eagerly await some results when the IPACS Working Group
will convene for its next meeting in June 2018.