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 69^th 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 14^th 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 322^octies – 322^decies 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:

• IOC Basic Universal Principles of Good Governance of the Olympic and Sports Movement of 11/12 February 2008;
• IOC 2016 Code of Ethics;
• CoE Committee of Ministers Rec(2005)8 “On the Principles of Good Governance in Sport”;
• CoE PACE Resolution 1875 (2012) “Good Governance and Ethics in Sport” with appendix “Guidelines on good governance and ethics in sport”;
• CoE PACE Resolution 2053(2015) “The Reform of Football Governance”;
• CoE PACE Resolution 2199 (2018) “Working Towards a Framework for Modern Sports Governance” plus appendix;
• CoE PACE Resolution 2020 (2018) “Good Football Governance”;
• EPAS Study “A Review of Good Governance Principles and Indicators in Sport” (2016);
• EU Expert Group’s “Principles of Good Governance in Sport”;
• Sport Integrity Global Alliance’s (SIGA’s) “Good Governance Universal Standards Implementation Guidelines”.

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:

• EU’s Sports Governance Observer;
• EU’s “Support the Implementation of Good Governance in Sport” (SIGGS) project;
• and finally, the aforementioned Sport Integrity Global Alliance with a specific three-step benchmarking model.

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.

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

“The practice of sport is a human right.  Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” - Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has “supreme authority” over the staging of the Olympic Games.  Under the IOC’s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors.  Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic “industry”  (indeed, the term "industry" is used to  draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people.  This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations.  In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes.  As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009.  She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention.  The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations.  These techniques later gave way to the method of determining ‘sex’ chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status.  These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport.  The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete’s gonadectomy.

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone).  Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone.  An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels.  However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge.  The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition would be declared void. 

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women’s sports ahead of the 2012 Olympics.  When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries.  Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion.  Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages.  The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care.  In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition. 

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category.  Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures.  The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures.  The radical nature of the surgery required, as well as the unknown future impact on the athletes’ health, highlight the dangers of such policies for inclusion in women's sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required.  Female-to-male transgender athletes are now eligible to take part in men’s competitions “without restriction”, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition.  That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition.  No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past.  Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage. 

The IOC document also refers directly to CAS decision in relation to Dutee Chand.  Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.  Therefore, the IOC’s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes’ bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete’s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women’s sports.  This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations.  Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion.  Although the health effects of the presence of high levels of testosterone in women’s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body’s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen.  She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code.  The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies.  Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health. 

Interestingly, Worley effectively bypassed international sport's usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances.  After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley’s application pending the completion of a judicial review application commenced by the IOC.  The IOC also argued  that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules.  Likewise, the UCI objected to the Tribunal’s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley’s application. 

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code’s protections.  Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim.  As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come.  Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration.  From the IOC’s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions.  The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with “notions of human rights”.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress.  However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes.  In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case.

Background and Facts of the Case: ‘The K on its way’ to leadership battles 

The third successive failure of the WKF to have Karate included in the Programme of the 2020 Tokyo Olympics -after the failed campaigns for inclusion in the 2012 London and 2016 Rio Olympics, respectively- spared disappointment in the ranks of the WKF and gave rise to a political war, led by the former ‘crony’ Mr Yerolimpos who used these failures to challenge WKF president Espinos. 

In the wake of concerns raised by some members of national Karate federations, in June and July 2013, the Appellant emailed the WKF Treasurer twice, questioning the lack of transparency on financial matters and challenging the leadership of the current president. The second email where the Appellant directly accused  Espinos of serious mismanagements was copied to all Executive Committee (EC) members and to the presidents of all Karate NF‘s. Following this “dirty manifesto” - in the words of WKF Treasurer[3], Espinos considered that the Appellant’s behavior amounted to a serious breach of the necessary relationship of confidence with the president. As a result, by application of Article 14.7 of the WKF Statutes, he revoked by email the Appellant from his position as Secretary General of WKF. The email battle continued with the Appellant accusing Espinos of manipulating the democratic processes. However, on 14 August 2013, the Appellant’s revocation was ratified by the EC members through an electronic vote, pursuant to Article 13.20 of the WKF Statutes. 

Then, on a request by the WKF Executive Bureau, the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission (TDC) opened disciplinary proceedings against the Appellant in order to examine whether the Appellant’s emails resulted in infringement of Article 9 of the WKF Statutes[4], i.e. his duty to act in a manner commensurate with his role at the WKF. On 30 October 2013, the DT decided to suspend the Appellant from membership of the WKF and EC for six months. It found that the Appellant’s conduct was in breach of his duties entrenched in Articles 9 and 13.2.5 of the WKF Statutes, since his criticism against the WKF president relied on subjective, unproven and unsubstantiated considerations.  More importantly, his criticism was directly circulated to the Karate NFs, without having previously debated them within the WFK Executive Bureau. The DT decision was appealed before the WKF Appeal Tribunal (AT), which on 6 February 2014 confirmed the first instance decision, finding that the content of the Appellants’ emails was prejudicial, defamatory, amounting to a serious violation of Article 9.2 and 13.25 (3) of the WKF Statutes. 

Lastly, the Appellant’s appeal before CAS dating from 26 February 2014, was set aside on 6 October 2014.       

Two main axes in the CAS reasoning 

In his appeal, the Appellant submitted a set of contentions. Specifically, he alleged: (1) the improper initiation of the disciplinary proceedings; (2) the non-identification of relevant offence in Articles 9 and 13.25.3 of the WKF Statutes; (3) the non-violation of these articles by the Appellant; (4) the violation of the principle ne bis in idem in double sanctioning the Appellant; (5) the violation of due process by the DT and AT Panels and finally; (6) the violation of the principle of proportionality in the sanctions imposed by the DT and AT Panels. 

The main focal point of the dispute lies on whether the Appellant’s defamatory emails constitute a serious misconduct and breach the relevant disciplinary provisions of the WKF Statutes. Therefore, this commentary will focus on how the CAS dealt with the interpretation of the disciplinary provisions laid down in Articles 9 and 13.25.3 of the WKF Statutes. Particularly, the commentary will map the CAS reasoning on the following issues: (a) the nature of the misconduct proscribed by the disciplinary provisions of the WKF Statutes and (b) the assessment of the duties bearing on the General Secretary of WKF in the political context of this case.

(a)The violation of Articles 9 and 13.25.3 WKF Statutes.

It is well established that a sports governing body may impose disciplinary sanctions upon its members if they are found guilty of a disciplinary offence, which has to be enshrined in the applicable rules and regulations. In the case at hand, before examining whether the Appellant by sending the above mentioned emails acted in violation of Articles 9and 13.25.3[5] WKF Statutes, the CAS has to examine what type of conduct is covered by these disciplinary provisions. In other words, how do the Articles 9 and 13.25.3 define the offence committed by the Appellant, i.e. the violation of his duty to act in the best interests of the WKF?

Firstly, the CAS takes into account that, in principle, the disciplinary provisions of sports governing bodies statutes are broadly drafted and, therefore, the principle of criminal law nulla poena sine lege does not apply in the case at issue. However, the question remains whether the broadly drafted Articles 9 and 13.25.3 encompass the allegedly offensive behavior of the Appellant. According to the Panel, it is not sufficient that the drafters of the WKF disciplinary provisions intended to entail “the multifarious forms of behavior considered unacceptable” [6] in karate, but whether they actually achieved it. Concretely, as far as Article 9.2 is concerned, the CAS proceeds by identifying two separate obligations for the members: the first entails compliance with the rules of the sport and the second refers to the maintenance of an appropriate conduct in any activity performed. Following an interpretation of the wording of Article 9.2 and particularly of the word "maintaining" which lies between the two obligations (as juxtaposed to the meaning of the word "gardant" in the French version of Article 9.2) the CAS concludes that there is an inextricable link between these obligations.[7] As a result, Article 9.2 sets two prerequisites for the fulfillment of the duty imposed: the members should comply with the rules of sport and additionally should adopt the appropriate demeanour. In practice, this means that at first, a rule has to be breached. While in the case at hand the CAS accepts that the rules of sport can be interpreted in a broad manner and refer not only to the rules of karate itself, the CAS notes that neither the Respondent nor the Panel have identified a rule proscribing the alleged offensive behavior of the Appellant. Thus, the inappropriate conduct of the Appellant cannot amount to a violation of the duty enshrined in Article 9.2.

With regard to the interpretation of the General Secretary’s duties laid down in Article 13.25.3, the CAS remarks that its scope does not overlap with Article 9.2. However, even if Article 13.25.3 is examined in isolation of the requirements of the other disciplinary provisions, the CAS notes that the Appellant’s conduct cannot be considered as amounting to an inappropriate demeanour in fulfilling his duties of maintaining relations with international federations. Indeed, the Appellant’s emails entailed a criticism against the president, involving national federations as well, but according to the CAS this criticism does not constitute a breach of the duty envisaged in Article 13.25.3.

Therefore, having concluded that the alleged conduct of the Appellant does not constitute the subject matter of any offence provided in the relevant regulations, the question whether the Appellant acted in breach of any rule has been rendered moot.

(b) The freedom of speech of the General Secretary of WKF

As mentioned above, the CAS had not identified a violation of the existing disciplinary provisions of the WKF. Nevertheless, it felt the remarkable urge to complement this reasoning with a broader reflection on the freedom of speech in sports governing bodies. To this end, the panel engaged in a very interesting dictum: "The Panel, however, because of first the importance of the issues; secondly out of respect for the excellent way in which the submissions were presented, thirdly against the contingency of an appeal on the Panels conclusion on the absence of any relevant offence in the WKF code, will deal with them succinctly".[8]

Herewith, the CAS underlines the right of the Appellant, and more generally of the members of sports governing bodies, to freedom of speech. This materializes more precisely in a fundamental right to criticize, in good faith, the acts and decisions of the governing authority, even if the criticism includes errors of facts. While the CAS acknowledges the political motives of the criticism, it underlines the valuable contribution of this criticism in exposing acts of mismanagement. These considerations on the democratic principle of the right to criticize those in positions of authority, are reinforced by the European Court of Human Rights’ (ECHR) jurisprudence and the principle enshrined in Article 10 of the European Convention on Human Rights.[9] In this sense, the panel takes two important steps. Firstly, it recognizes the controversial[10] applicability of rights enshrined in the European Convention on Human Rights to disciplinary proceedings of sports governing bodies, which are purely private entities, by indicating that the jurisprudence of ECHR is compulsive in jurisdictions to which it applies, and in any case is at least indicative. Secondly, the panel does not hesitate to take a clear position –from a sports politics point of view- establishing that the members of the sports governing bodies have a fundamental right to exercise their freedom of speech to criticize political authorities. It seems, therefore, that this CAS panel feels at ease with its role as a Supreme Court of Sports protecting the fundamental rights of the ‘citizens of world sports’.

In the second limb of its reasoning, the CAS suggests the rules of conduct that members of sports governing bodies should follow when exercising their established right to criticism.[11]Indeed, according to the CAS, the exercise of the right of freedom to speech is subject to two restrictions: the criticism which targets the authority of the sports’ governing body must be lawful and members must demonstrate self-restraint in the exercise of their right. In this light, the CAS finds that the Appellant did not act unlawfully or in bad faith, but he rather exceeded the limits by ignoring the internal procedures available to him. In other words, the Appellant erred in the way he chose to ventilate his criticisms against the current president. Thus, damaging the WKF’s image worldwide. This interpretation elaborated by the CAS seems to be inspired by the so called ‘balancing exercise’ between Articles 8 and 10 European Convention on Human Rights[12]: an interference in the internal affairs of a sports governing body can be justified when it is in accordance with the law and is necessary in the interests of the world sports community. 

Conclusion

In our previous blogpost, we described the CAS hands-off approach in a political conflict internal to a sports governing body. We suggested, instead, that a modicum of interventionism in sports politics would be compatible with the CAS role. In this light, the WKF case is a good illustration of a CAS panel delving into sports politics to uphold certain fundamental political rights. From the preamble to the conclusion of this award, the CAS did not hesitate to interpret the political motives of the parties and their subsequent acts. More importantly, taking into account the law making role of CAS panels in promoting consistency in international sports law, this CAS panel adds to the so-called lex sportiva a democratic resonance, preserving also the freedom of speech of members of sports governing bodies.

[1] CAS 2014/A/3516, George Yerolimpos v. World Karate Federation

[2] Ibid, para 1.

[3] Ibid, para 25.

[4] 9.1 National Federations and individual persons affiliated to the WKF shall undertake to comply with statutory norms, rules and regulations and all provisions issued by the Executive Committee.

9.2 Members shall undertake work in complete compliance with the rules governing the sport, maintaining a demeanour commensurate with the activity performed.

9.3 Any member in breach of the conditions as per points 9.1 and 9.2 above shall be liable to disciplinary action as set forth herein.

[5] The duties of a General Secretary shall be: (a) Execute the decisions taken by the Executive Committee;

(b)To maintain relationships with the continental federations, with the affiliated National Federations and with outside parties; (c) Draw up and take care of the minutes of the Executive Committee and of the Congress Meetings.

[6] CAS 2014/A/3516 (n1), para 105.

[7] Ibid, para 107.

[8] Ibid, para 115.

[9] European Convention on Human Rights, Article 10

Freedom of expression: 1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

[10]C Favre-Bulle and others, L’arbitrage et la Convention Européenne des Droits de l’Homme (2001), 73.

[11] CAS 2014/A/3516 (n1), para 117.

[12] ECHR 227 Axel Springer AG v Germany 39954/08 [2012] paras  84-95 & ECHR 228 Von Hannover v Germany (n2) 40660/08[2012] para 100 .