A change in the attitude of governing bodies to how they approach doping, gambling, racism and homophobia is needed if sport is to make progress in tackling these problems, heard delegates at the Sport Resolutions 2019 Conference in London today. Delegates heard that lack of athlete ‘buy in’ to the World Anti-Doping Code has led to a lack of trust in the anti-doping system it creates, as well as a lack of trust that it will hold Code signatories – such as the Russian Anti-Doping Agency (RUSADA) – to the same strict standards it applies to athletes.

Delegates also heard that although societal, problem gambling is a hidden issue that can have a greater effect on athletes compared to the public, due to the time and money needed to develop a gambling problem. Delegates also heard that racism is a similar societal issue, and football can be a reflection of society. However, it was also pointed out that the perception that it is a hugely increasing problem may be exaggerated, as high profile players calling out racism may encourage those lower down the game to do the same.

Delegates also heard that the media has a duty not to make an athlete’s sexuality a big issue. However, it was pointed out that once an athlete has taken a decision to ‘come out’ as gay, they often feel a duty to become a role model to other young gay athletes who may be dealing with concerns about whether they will be accepted in sport. 

Acceptance in sport is currently a hot topic. Opinion was split over whether the Court of Arbitration for Sport (CAS) had taken the right decision regarding Caster Semenya’s challenge to the International Association of Athletics Federations’ (IAAF) Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development). 

“What I like about sports law is that all of the political nonsense falls away”, said Jonathan Taylor, who drafted the DSD Regulations – as they have become known – for the IAAF. “The CAS Decision is based on the evidence and merits of the argument”. Jeffrey Kessler of Winston & Strawn LLP took a different view. “I thought the decision was awful”, he said. “It is fundamentally sexist, and is talking about something that is natural. It is only women that are looked at, because of how they were born.”

The Conference opened with a rousing keynote from rugby player Maggie Alphonsi MBE, who urged delegates to “know your why” – in other words, why you do what you do. She emphasised the importance of stepping outside of your comfort zone in order to accomplish change.

WADA, RUSADA, CBAs & doping

The first session outlined that although a unified World Anti-Doping Code is possible, it will be difficult to achieve unless the World Anti-Doping Agency (WADA) can regain the trust of the athletes. It will also never encompass the US team sports, because inherent differences due to the way in which they negotiate Collective Bargaining Agreements (CBAs) with player unions.

“The reputation of WADA is not at its highest point”, said Kessler. “There is a question about how politics affects its role, and whether it can be trusted to do its job”. 

Taylor, also Chair of WADA’s Compliance Review Committee (CRC), pointed out that the Code is the most broadly applicable legal instrument in the world. He pointed out that over 3,000 corrective actions have now been implemented as a result of WADA’s Compliance Programme, and WADA is now partnering with police to use intelligence in order to catch doping cheats. He argued that if WADA didn’t exist, there would be a need to create WADA.

“WADA isn’t strong enough”, argued Paralympian Victoria Aggar. “There are discrepancies across countries in education and testing”. Bill Bock, General Counsel for the US Anti-Doping Agency (USADA), expressed his view that athletes have lost faith in the anti-doping system. “Players have buy in under US sports”, he said. “There is precious little buy in under the WADA system”.

Bock and Aggar argued that WADA’s handling of RUSADA’s reinstatement has damaged trust in the Agency. “You don’t allow somebody to return from competition half way through a ban”, argued Aggar. “You have to be fair and transparent”. Bock argued that he didn’t have confidence that it wasn’t for “political reasons” that RUSADA was reinstated.

Taylor argued that since the Russian doping scandal, WADA has fixed its rules, and has retrieved the analytical data and samples it required from the Moscow Laboratory. “If CAS finds that Russia has been tampering with the samples, they don’t go to Tokyo”, he said. “The IOC doesn’t get to make that decision”. Bock countered that since 50% of WADA is governed and funded by the IOC, it has an influence over that decision.

Kessler pointed out that the IOC revenues go to sporting federations in exchange for supporting the hierarchical system that has been created. “The entire system needs change”, he argued. Taylor countered that a credible alternative is needed before you “tear the system down”.

On the subject of doping bans, there has previously been debate on whether a ‘one size fits all’ approach serves in the best interests of athletes and sport. On this point, the panel was split. Kessler also outlined that it “made no sense” to impose a doping ban during the off-season, which is why the US sports sanction athletes with bans for a fixed number of games.

“There are far fewer exceptions in the US system”, said Bock. “A ban is a ban, and the degree of fault is less important. It makes you wonder about the time, money and resources spent on a system that is fairly arcane.”

Taylor argued that the proportionality of doping bans to sport as a whole needs to be considered. He argued that this is why sanctions have to be the same across sport, and Aggar agreed.

“We don’t treat criminals that way”, argued Kessler. “A bank robber is not imprisoned for life for a first offence.”

Bock pointed out that there is a risk that athletes are made “scapegoats” for the underlying problems that cause doping in the first place. “We ask athletes to do superhuman things”, he pointed out. “The incentive is because we only pay athletes significantly if they medal. There is a lot we need to think about before considering how hard we can punish an athlete. The system needs to stop looking at athletes as the main cause of the doping problem.”

Aggar said that when the public is confronted with a great sporting performance, the “automatic default” is “I bet they’re on drugs…that is the sad part about it.”

Sport & gambling

First, some statistics. Delegates heard that 36 of the 92 Premier League and Football League clubs have contracts with gambling companies; that half of every professional football team gambles; that athletes are three times as likely to succumb to addiction illnesses than the general public; that 70% of those at the Sporting Chance addiction clinics are being treated for gambling problems.

“These are people that have come for help”, pointed out footballer John Hartson, who outlined his 20 year battle with gambling addiction in moving detail. He has now gone eight years without placing a bet. “What about the silent gamblers who don’t want help?”

“This is about the intensification of gambling underpinned by technology”, argued Heather Wardle of the London School of Hygiene and Tropical Medicine, who is funded by The Wellcome Trust to explore changing youth gambling behaviour. “As a sports fan, I worry about sport re-imagined through the lens of gambling”.

It was pointed out that gambling companies have plugged an advertising hole left by the withdrawal of tobacco and alcohol companies (to a lesser extent) from sponsoring sport. It was argued that sport faces a difficult decision in assessing whether any potential harm inflicted on athletes is outweighed by the financial support that sport receives from gambling companies.

Racism & homophobia

Given recent media coverage, a casual observer could be forgiven for thinking that racism in football is on the rise. “Discrimination never goes away”, said Femina Makkar, Head of Operations at Kick It Out. “We will always be working against it. Football is reflective of society, where instances of hate crime and hate speech are increasing.”

Makkar highlighted that “we are indebted to Raheem Sterling” for “calling out” racism, and “having the guts to do so”. Sterling was the recipient of racist abuse during Manchester City’s match against Chelsea in December last year. He also received racist abuse during England’s 5-0 victory over Montenegro in March. Makkar said that in the weeks that followed both incidents, there was an increase in the number of reports of racism coming in from football’s grassroots level. Such an increase in reporting can also lead to the perception that racism in football is increasing, added Makkar.

Makkar warned that there is a “perception that nothing will happen” following reports of racism at the grassroots level. Currently, Kick It Out receives 70% of reports of racism from the professional game, and 30% from the grassroots. Makkar said that as the grassroots level is larger, she would expect there to be more incidents of racism at this level, but warned that “people don’t have confidence in the system”. It was pointed out that the €20,000 fine that Montenegro received from UEFA for racism was the same as a manager might receive for speaking out of turn to an official.

Although it was highlighted that the media have a role to play in reducing homophobia by not sensationalising an athlete’s sexuality, Keegan Hirst also highlighted that many LGBT athletes feel it is their duty to support young athletes after revealing that they are gay. “Is it newsworthy?” asked the rugby league player. “Yes, because it provides support to others in the same position. Gay kids look to us as role models.

“I didn’t want to be a role model, but I got so many messages of support from people who’d stopped playing sport because they were gay. I realised I had a duty to them.”

Hirst pointed out that it wasn’t so long ago that the Silk Cut Challenge Cup and Embassy Snooker World Championships were being contested. “How long did it take to change attitudes on smoking advertising in sport?” he asked, adding he hoped that attitudes towards LGBT participation in sport would also change.

Comfort zone

Alphonsi’s keynote was extremely well pitched. Sport Resolutions 2019 highlighted that in attempting to tackle doping, gambling, racism and homophobia, sport is continuing to adopt the same tried and tested approaches. And those approaches haven’t worked. 

The World Anti-Doping Code, Prohibited List and accompanying International Standards (now six, including the List) grow ever longer and more complex. Gambling’s relationship to sport has changed beyond all recognition during the last ten years, and there are questions about whether sport’s regulations have kept pace. Delegates expressed disappointment that 30 years after racism was identified as a significant problem in English football, we are still talking about the issue.

There are massive changes occurring regarding athlete rights in sport at the moment – an area often been neglected by sport’s governing bodies. These include a push for recognition of the human rights of athletes; recognition of the commercial rights of athletes at the Olympic Games; gender participation rights; and more.

Pehaps it is time for sports governance to “know its why”. Perhaps it is time for it to step outside of its comfort zone.