Corruption in sport
1. Methodological premise
Sport is an increasingly important phenomenon (both social and economic) that contributes significantly to the maintenance of strategic goals of solidarity and prosperity of all humanity. It strengthens peace and understanding among nations and cultures and education of young people. Sport is also a source of important values such as team spirit, solidarity, tolerance and correctness, and thus contributes to the progress and human and social realization. Fair play, respect for the adversary, the agonistic spirit, the conditional parity, the exaltation of the purity of technical and athletic gestures, the cleansing of organization, hospitality and governance are essential to the credibility of the Sport phenomenon. So for these reasons, in the era of globalization and the progressive establishment of a multilevel legal order, preventing and combating corruption in Sport constitutes a categorical imperative on which universal agreement is needed.
2. The legal and economic sector of reference: The peculiarities of the international sporting order
According to Massimo Severo Giannini, the world’s sporting order is:
-Superstate (but different from international law), having as its legal entities not the States but the natural persons and the intangible entities.
-Not Territorial, since the territory is not a constituent element of it.
-Original, as it is solely competent to identify the rules for the conduct of sporting competitions.
-Not Sovereign, because of the absence of full effectiveness in the various territorial frameworks.
The sporting order is regulated by two main associative bodies:
i)the International Olympic Committee, an association of private law formed by the international Federations, which performs mainly organizational tasks and can now be considered the supreme organ of the world sports organization. Its institutional is in Lausanne in Switzerland.
The Committee, born towards the end of the nineteenth century with the specific intention of resuming the Olympic Games, is referee and sovereign for all matters relating to this event , delegating to the International Federations the technical issues relating to individual sports. Moreover, it fixes at least three years in advance the date of celebration of the subsequent Olympia, entrusting it with the actual organization to the National Olympic Committee (NOC), which still must consult the IOC for the most important issues.
The IOC exercises control over the national sports organizations, approves its statutes and regulations, which have to comply with the requirements set out in the Olympic Charter.
ii) the various International Sports Federations (ex. FIFA for football), which are generally private associations with legal personality within the sphere of the law of their respective States. The internal structure is often constituted by:
– A large representative assembly which includes all members and has all powers.
– A more representative (and restricted) organ holding executive functions.
– A permanent organ, which ensures the organization’s continuity of operation.
Such federations must be based on the fundamental principles of the spirit of friendship, which must be inspired by holism, universal vocation, neutrality, impartiality and unity.
3. Defining aspects of the corrupt phenomenon linked to the world of Sport
Nowadays, sport is more and more an anticorruption risk area, pervaded by maladministration and scandals (as the FIFA case has recently highlighted) and touches every possible scope:
-Bribery for works contracts related to major sports events
-Handling the results of the races
-Doping
– Corruption in Sport Governance (For event assignment, event-related rights, and appointments)
Faced with the difficulty of imagining a homogeneous and coherent instrument for preventing and combating corruption in sport, a significant role may be recognized by soft law, guidelines, code of ethics and behavior in general, to anticipate the level of protection of legality sports.
In this field, it requires that active collaboration and co-operative watch on the part of the world of business and the private sector, called to participate proactively in the control of legality. On the level of the method, governance models such as compliance and risk management will be particularly effective. Fundamental will be the call to CSR fees (Corporate Social Responsibility) too.
4. The evolutionary framework of sources at international level
With the entry into force of the Lisbon Treaty in December 2009, the European Union (EU) has acquired for the first time a specific competence in the field of Sport: Art. 165 of the Treaty on the Functioning of the European Union (TFEU) contains important details on EU sport policy and so in art. 6 as it integrates one of the policy areas in which the Union has the competence to support, coordinate or integrate action by Member States:
The Union contributes to the promotion of European sport profiles, taking into account its specificities, its structures based on volunteering and its social and educational function.
In accordance with the provisions and the declarations contained in the Treaty, the EU deals with the economic, social, educational and cultural aspects of sport. Its activities are aimed at achieving the goal of greater loyalty and openness in sporting competitions and greater protection of the physical and moral integrity of sports practitioners, taking into account the specific nature of sport.
Before this, the White Paper on Sport, presented by the Commission in July 2007, was the first ‘global initiative’ on Sport within the EU. Through the implementation of proposed measures , the Commission has collected useful information on the topics they will be treated in the future .
Through the implementation of these measures, the Commission has collected useful information on issues to be addressed in the future. This initiative led to the Commission Communication (January 2011) regarding the impact that the Lisbon Treaty had on sport and entitled “Developing the European dimension of sport” .
Nevertheless, the first real instrument of international law about Sport was the Council of Europe Convention on the manipulation of sporting competitions (2014), focusing on the rules of conduct in the races “to improperly alter the result or the evolution of a sports competition in order to completely or partially remove the unforeseeable component of the aforementioned sports competition with the aim of achieving an undue advantage for itself or others. ”
Always in 2014, the United Nations Global Compact has adopted a very important guide entitled “Fighting corruption in sport sponsorship and hospitality”, in line with the 10th principle .
Also OECD’s work, especially in the area of corruption prevention at major events, has shown a strong interest in the sector: it refers to the High Level Principles for Integrity, Transparency and Effective Control of Major Events and Related Infrastructures, as a result of an ANAC-OCSE Memorandum of 2016.
5. The interest of non-governmental international organizations
On the side of engagement groups and NGOs, we can see some important publications showing the growing global interest in the relationships between corruption and Sport, in particular the Global Corruption Report on Sports (Berlin 23.2.2016), created and published by Transparency International with over 60 specialist contributions.
It provides a comprehensive and structured overview of the dynamics and causes of corruption in sports, covering several topics.
-political interferences in Asian football
-corruption in African sports
-match-fixing risks in football
-the legacy of the World Cup and the Olympics in Brazil
-financing of the Sochi Winter Olympics
-the World Cup cash flows in Russia
-political control of football in Hungary
-cricket governance in Bangladesh
-ownership of football clubs in the UK
6. The peculiarity of the Italian sportsmanship
The Sports Italian Order, mainly based on association and volunteering, has a broad economic and regulatory autonomy. Because of this particularity, being difficult to identify the Italian sporting movement with the liberal or the interventionist model, it was preferred to create a “model Italy”.
This was for many years the only example of how a State, by virtue of the self-financing system, has legally entrusted the sport movement with the task of answering the question of sport, interpreting the needs of the citizens, and thus exemplifying a ‘ Complementing one’s own to ensure the health and well-being of citizens.
The first fundamental step in the evolution of the Italian sporting order was the approval of Law no. 426 of 1942, entitled “Constitution and Order of the Italian National Olympic Committee”.
In 1995, Law 203 assigned the task of supervising the CONI to a special office established by the Presidency of the Council of Ministers. This was due to the 1993 Referendum which abolished the Ministry of Tourism, Sport and Entertainment set up in 1959, creating a dangerous legislative void.
Nevertheless, the institutional structure of the Italian sporting organization was completely rewritten by Melandri d. Lgs. N. 242/1999, whose art. 1 recognized CONI as a legal personality of public law, thus giving it a broad statutory autonomy and a more democratic legitimacy of the organs.
Some years later, Melandri decree was amended by Legislative Decree 15/2004 (Pescante) for two reasons:
i)To eliminate all the dysfunctions that were created with the ’99 reordering, without restoring the pre-existing model of reform.
ii) To coordinate the text with the above-mentioned rules, especially with regard to doping, recognition of legal personality and composition of the college of auditors.
The Decree was also linked to the new management structure, determined by the creation of the “Coni Servizi S.p.A.” pursuant to art. 8 of Decree No.138 / 2002. This company, with total public capital, was set up to carry out the following tasks:
i) to carry out instrumental activities for the tasks implementation of the CONI public body.
ii) to realize supplies of goods and services aimed at pursuing the institutional tasks of CONI.
The CONI Statute defined the National Sports Federations (FSN) as non-profit associations with legal personality under private law and governed by statutory rules complying with the national and international sporting regulations. Being private entities of public interest, FSNs can have (under the aegis of the CONI and the IOC) full technical, organizational and management autonomy and they must inspire their internal organization to the democratic principle ensuring participation in sport activities to anyone in equal and equal opportunities. Nevertheless, they are subject to CONI controls both during the constitution and throughout their business.
7. A look to the future: the next CONI guidelines and the MAECI / CONI consultation table
The total transparency of administrations is the first objective to be pursued through the opening up of public data and accessibility to information, which must allow a widespread control of public administration actions by civil society. For this to happen it’s necessary:
i) a mandatory adoption of corruption prevention plans to identify the priorities for action and to communicate, within and outside the administrations, what kind of solutions are being used to identify and counteract the risks.
ii) the introduction of measures concerning the integrity of public officials (which have been subject to rotation requirements in risk activities and new codes of conduct) and the spread of a culture of public ethics that makes everyone aware of the adverse effects of Corruption and maladministration.
In this regard, the CONI has promoted the creation of guidelines (at the time of publication) dealing with the analysis of the risk of corruption and infiltration of crime in the world of Sport, by designing ways of proactive and collaborative behavior both on a general and territorial level for Sports federations, according to the compliance model and risk management. At the same time, CONI has set up a technical table for preventing and combating corruption in Sport with the Ministry of Foreign Affairs and ANAC.
8. Conclusions
The World of Sport can be considered a primary laboratory for the creation of a legal environment oriented to a multilevel legal order. A widespread and participatory public-private partnership control will surely lead to an increase in the legality threshold and the anticipation of the protection plan. Modern economics, in perspective, tend to enhance the construction of an economic environment, legally oriented to the protection of all subjective legal positions. Today, on the occasion of the 70th anniversary of the United Nations Organization, the development of friendly relations between States, based on respect for the principle of equality of rights and on economic, social, cultural and humanitarian cooperation, is more vivid than ever. In order to be pursued it needs, in addition to high-level agreements and policy sharing, modern and efficient legal systems and legally oriented economic environments too.
In conclusion, a serious anti-corruption strategy in a delicate sector like Sport is useful in demonstrating a global commitment to preventing and countering any form of distortion and illegality, as well as being a lever of development in general and more specifically for economic growth, employment and investor confidence.
“Sport is part of every man’s heritage. The strategic focus of this policy option has led to this reflection, aimed at reconstructing the international regulatory framework and the most significant initiatives to guide the world of sport to legality, Both domestically and globally. ”
Appendix
-In Germany private corruption is disciplined in the Criminal Code; it is limited to protecting competition in the economic field, but this also includes corruption in commercial transactions.
– In Austria and Switzerland, private corruption is not one of the basic criminal rules, namely the Criminal Code, but is covered by the law against unfair competition.
-French criminal law punishes both active and passive corruption in the private sector with penitentiary and pecuniary penalties. This case includes any professional or social activity; Consequently, corruption also falls within the framework of the activities of non-profit organizations and therefore also in international sports federations. Legal persons are criminally liable for infringements committed by them, their organs or their representatives irrespective of the sanctions imposed on a natural person (Article 121-2 Code Pénal).
– In the Spanish Penal Code, active and passive corruption in the private sphere is punishable by penitentiary and penitentiary penalties. The provisions also apply explicitly to collaborators of companies acting in the sports field, regardless of the legal form of the company (Article 286bis of the Spanish Penal Code).
– In Britain, UK Bribery Act 2010 disciplines active and passive corruption. Active and passive corruption is punished in the context of business or employment, but also all activities carried out by associations of people. In addition, companies who fail to take preventive measures to prevent corruption inside them are involved in a crime. It should be noted that the UK Bribery Act also applies to foreign firms that have somehow to do with the English legal system.