Tomasz Tadeusz Koncewicz: Autonomia sportu i degeneracja ideału (ang.)

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Mistrzostwa Świata w Piłce Nożnej w Katarze to tylko wierzchołek góry lodowej narastających problemów UEFA/FIFA (dla uproszczenia mojego wywodu oba są określane jako „organy zarządzające piłką nożną” lub po prostu „organy”). Skandalicznemu i podejrzanemu wyborowi Kataru na gospodarza mistrzostw świata w 2022 roku poświęcono już obszerne analizy. Kumoterstwo i nepotyzm od lat kształtują każdą dużą imprezę piłkarską. Hipokryzja. Skandale. Korupcja. Przytulanie się do autokratów i czucie się w ich towarzystwie jak w domu. Arogancja granicząca z ignorancją pochodząca z samego szczytu władz. Podwójna mowa. Lista poważnych dolegliwości trapiących system zarządzania piłką nożną jest długa.

W rezultacie można argumentować, że niewiele treści można dodać do tematu. Jednak, jak zostanie to wykazane w tym artykule, nadal istnieje konstytucyjny i dyskursywny potencjał do prowadzenia debaty na temat zepsutego systemu zarządzania piłką nożną. Konstytucjonaliści mają ważną przestrzeń do wypełnienia krytyczną refleksją, swoimi spostrzeżeniami i wskazaniami drogowskazów na przyszłość. Nadszedł czas, aby wyjść poza wygodne frazesy o „pięknej grze w piłkę nożną” i hasłach („autonomia sportu”), które tylko potwierdzają, że status quo jest nie do utrzymania – pisze prof. Tomasz Koncewicz w artykule opublikowanym w zasłużonym Verfassungsblog

The Autonomy of Sport and the Degeneration of an Ideal

The Football World Cup in Qatar is but the tip of the iceberg of the mounting problems for UEFA/FIFA (for the simplicity sake of my argument here, both are referred to as the “football governing bodies” or simply “bodies”). A book length analysis has already been devoted to the scandalous and shady selection of Qatar as the host of the 2022 World Cup. Cronyism and nepotism have been formative for every major football event for years now. HypocrisyScandals. Corruption. Cozying up to the autocrats and feeling right at home in their company. Arrogance bordering on ignorance coming from the very top of the governing bodies. Double – talk. The list of serious ailments that beset the system of football governance goes on. As a result, one might argue that not much of substance can be added to the topic. Yet, as will be argued here, there is still a constitutional and discursive potential to push forward the discourse on the broken system of football governance. There is important space for constitutionalists to fill by offering a voice of critical reflection, insights and by pointing out signposts for the future. Time has come to move beyond those comfortable platitudes of “football beautiful game” and catch – words (“autonomy of sport”) that only corroborate the untenable status quo.

Good Governance and the Autonomy of Sport

The concept of “organizational autonomy” of sports associations has become a buzzword in the discussions on the regulation and governance of sport at the national, European, and international level. Sports structures, despite their autonomy, are not carved in stone, but must evolve in response to changes in their environment. Football governing bodies and national federations should introduce and adhere to “minimum standards for good governance of sports federations” to achieve maximum transparency and accountability. Sports authorities must ensure that their internal structures are constantly examined to ensure that they are sufficiently democratic and representative. All of this tied together by cooperation in a spirit of good faith, trust, transparency, accountability, and professionalism. For the European Council “Good governance in sport is a complex network of policy measures and private regulations used to promote integrity in the management of the core values of sport such as democratic, ethical, efficient and accountable sports activities; and that these measures apply equally to the public administration sector of sport and to the non-governmental sports sector”. The European Commission’s 2007 White Paper on Sport stressed the importance of the principles of good governance to deal with the challenges affecting sport. While the UNESCO Charter invites “public authorities and sports organizations … to enhance their co-operation in a spirit of mutual respect, and to minimize the risk of conflict by clearly defining their respective functions, legal rights and mutual responsibilities in physical education, physical activity, and sport”, “mutual respect” is a two-way sword. The world of sports must respect the right and duty of governments and supranational institutions to control how they function.

What clearly comes across this very perfunctory and by no means exhaustive survey of legal landscape (for more detailed analysis see here) is that even if the autonomy of sport is to be respected, it must be also seen as the outcome of good governance. It must not mean full independence and/or lack of any control.

Autonomy or … autarchy?

At first glance, all this might sound banal and obvious, almost innocuous, right? Not so fast. Like a mantra, the football governing bodies keep repeating that the sport abides by the existing law, but at the same time special attention must be paid to the specificity of sport and the autonomy of sporting organizations. For them the autonomy operates like a trump card: the discussion is closed before it even starts. As a result, vast swaths of complete lack of accountability are created and steadily nourished with the autonomy becoming a shield behind which sports organizations at the international and national level have steadily become laboratories for corruption and shady dealings.

While the lofty and noble concept of autonomous self-governance is an asset to be cherished, it has been used in an instrumental and checkered way as an argument against limiting the influence of “external” regulations on sporting associations. The autonomy of sports organizations, and the sports movement more broadly, does not mean that sports is above the law. Autonomy is the result of an uneasy dialogue that is taking place between the sport and its legal and social environment defined by both national and supranational levels of governance. The main principles identified from the definition of good governance in sports are autonomy (within the limits set by law), democracy (i.e. clear and transparent electing procedures), transparency in the law-making process, equality and integrity. Good governance of an association should be seen as a means of obtaining autonomy: good governance will eventually lead such association to its autonomy.

In this respect, autonomy must be seen as the outcome of good governance, as something that should be deserved, rather than just granted for sports associations. The latter should show that they are able to regulate and to determine their own affairs and to issue rules relating to their own governance and their own competitions which are appropriate, necessary, transparent, and proportionate to the goal they are intended to achieve. Autonomy constrained by law and within the bounds of law calls in turn for a credible system of enforcement and effective, transparent, and independent supervision over how the bodies use their autonomy and that potential penalties are deterrent enough. Legality without enforcement and supervision becomes a convenient slogan empty of any bite. Instead of revealing the misdeeds and naming and shaming, it is resorted to hide and conceal. The responsive enforcement and effective supervision should become the benchmarks of the legitimacy of the governance of sport, the price sport must be willing to pay in exchange for its continuing claim to autonomy within law. This is crucial as the autonomy that operates on the proposition that the bodies under control are the same time acting as controllers fly in the face of one of the precepts of natural justice – nemo iudex causa sua. Add to this the autonomy as the trump card and the autonomy is no longer an autonomy but rather an autarchy.

Sporting autonomy and jurisprudential proportionality

To fully understand how misplaced the argument from “sporting autonomy” as a value precluding any interference (be it national or/and supranational and/or international) in the sport is, the position taken by the Court of Justice (“the Court”) is worth recalling here. The Court has firmly rejected the proposition that the so-called “purely sporting rules” automatically exclude their evaluation from the perspective of their compliance with the Treaties (e.g. their compatibility with competition law or economic freedoms). A sports regulation may restrict competition only if the restriction derives from the essence of sports competition, is based on legitimate objectives (such as proper organization and proper management of sports), is necessary to achieve the objective pursued and uses proportionate means. The principle of proportionality is an expression of the compromise between autonomy remaining within the limits of the law and the necessary margin of freedom of sports associations. Only deviations from the general Treaty rules that are appropriate, necessary, and proportionate will not violate the principles of Union. In this sense, sports federations are obliged to, when regulating in the exercise of their autonomy, to be guided by the principle of rationality and considering the economic consequences of this regulation for players as well. Thus, in the event of a dispute, a sports federation cannot simply content itself with citing the “sports exception” as a justification for deviating from the principles of Union law. Rather it has a duty to carry out a test of proportionality and demonstrate that the derogation is necessary to ensure the proper conduct of sports competition. By allowing the possibility of restricting competition, in the name of ensuring the proper organization and conduct of sports competition, the case law respects the essence of this competition. At the same time, however, it emphasizes that restrictions must not go beyond what is necessary to achieve the stated goals.

In practice, the commercialization and professionalization of professional sports make it increasingly difficult to separate the purely sporting dimension from the economic dimension of the many regulations enacted by sports federations. Therefore, the courts rightly recognize that it is necessary to introduce additional criteria for assessing the compatibility of these regulations with treaty rules, rather than stopping at arbitrarily invoking the “sports exception”. This is particularly important because sports federations enjoying a factual monopolist position make decisions that have direct economic effects on players. Without interfering with the very regulatory competence of these organizations in the field of sports, it should nevertheless be required that the competence be exercised with respect for Union law. In case C – 519/04P Meca-Medina, the Court, while clearly appreciating the role of the fight against doping for the preservation of healthy competition between athletes, has urged sports associations to ensure at the same time that anti-doping regulations are proportionate to this goal. Otherwise, overly restrictive rules, against which athletes would be deprived of the opportunity to defend their rights, could lead to the unjustified exclusion of an athlete from a competition, thus negatively affecting competition. The judgment is a warning from the Court to international sports bodies to ensure that the rules they enact remain in compliance with the Union law. An important level of accountability is thus introduced.

Sporting autonomy revisited

Keeping in mind that all power tends to corrupt, and that absolute power corrupts absolutely, the same may be true of the absolute autonomy defended by the sporting bodies. The entrenched positions of the governing bodies (“autonomy as a trump card”) raise the question of the sense of any meaningful exchange(s) with other stake holders interested in upholding the principles inherent in the good governance of sport. The true essence of the autonomy of sports associations lies in the cohabitation between “doing things their own way” on the one hand and adhering to the basic principles of legality on the other, all while in dialogue, not a monologue, with the others. There is no room for any carte blanche in this regard. Autonomy must be earned through performance and repeated acts of good governance, rather than being presumed and granted ipso facto. In XXI century, there is no place for islands of non-accountability  and free-ride. The Autonomy unbounded becomes its own caricature.

Therefore, the sporting autonomy today must be imbued with the culture of justification. Culture of justification becomes a tool for limiting the exercise of public authority as it is the power of arguments and not just arguments of power that should prevail. The sport must argue out its claim to argumentative priority and be ready to defer to a better argument. It needs to perfect its own argumentative strategies for the future and to change for better. The same is always expected of the other party that claims a power to regulate sport. Good arguments must be brought to the table and weighed. As a result, the exchange never ends. Unfortunately, in the world of sports today, the exchange stops before it even starts: since the argument from the sport autonomy acts like a trump card. We never even have a chance to gauge the strength of the relative arguments as the stage for such an evaluation is never reached in the first place. Any attempt to combat sports corruption on the national level is met with the swift reactions from the governing bodies. Instead of arguments, they resort to threats and quarantines with “the autonomy – trump card” as the main rationale.

What about passion and emotion? Moving forward

We can no longer allow football to be held hostage by the knock-out argument that “without UEFA/FIFA there is no football”. Football governing bodies operate according to the antagonistic and arrogant “take it or leave it” rule. If the meaning of autonomy is to be salvaged at all, the football governing bodies better be ready to dialogue and respond to the accumulated allegations, rather than resort to primitive blackmailing. Adopting the latter method marks the beginning of the end of the discursive autonomy that, when understood properly and adhered to in good faith, operates alongside, and thrives at the intersection, of four fundamental values: i). the rule of law; ii). transparency; iii). accountability and iv). receptiveness to hear all the voices. Worst of all, however, it would confirm that the passions and emotions evoked by soccer have long since become a toy in the hands of technocratic and faceless officials who do not speak in the name of football – if it is understood as a shared experience that both teaches and entertains.

Today, the societal, cultural, and educational role of sport is being suppressed and sacrificed at the altar of the ruthless business at all costs. The very roots of the sport movement are hijacked by whoever pays more. The FIFA-created controversy around the One Love armband is an instructive manifestation of how things get awry exactly where the teaching about inclusion and spreading the message of respect for the Other should be front and center. Here, the story is about anything but inclusion and respect, but rather of anguish, suffering and humiliation caused to the oppressed groups by the technocratic engineering by Mr Infantino and his yes-sayers. Players are denied their right to express their support for the values at the heart of the social role that sport should be supportive of while facing the impossible choice between supporting values at the core of the sport on the one hand and playing for your team on the other. In the end, the world public opinion that shares support for the ideals of respect and inclusion might feel confused and alienated as the sporting bodies fail to express and protect the very values in their public messaging on behalf of the game. With the agonizing lack of action and the brazen impudence from the governing bodies, the disconnect between the game played on the pitch and the game played to the beat of the heart of an average spectator keeps growing as a result.

All this leaves only one player at ease – the big business bent on profit. Completely blind to the values of inclusion, respect, and decency that the sport (and by extension their own brands!) should reflect and promote, big business continues to be looking the other way as if nothing had happened. After all, money loves the approach of “business as usual”. The power of the wallet has become the true master of the sporting bodies with the pure emotions of the game relegated to the mere afterthought. Pecunia non olet might have indeed become the guiding motto of whatever is left of the sporting autonomy in 2022.

Building a Counternarrative: No More Business As Usual

The questions specific and general thus loom large and must no longer be swept under the rug of business expediency and the comfort of sponsors. Can successive presidents of the football governing bodies, acting as factual referees in their own case, be a reliable source of objective information and be trusted? How is it even possible that a video assistant referee (infamous, slow, and unintelligible “VAR”) can be operated during a World Cup match by a national … whose team plays in the very same match that VAR oversees? (I would be happy to teach the sporting bodies some of the precepts of natural justice).  What is the meaning of the autonomy of sports organizations when their internal dealings are shrouded in secrecy and the hypocrisy rules supreme? How much more press coverage with embarrassing details is needed for something tangible beyond Lausanne to finally happen? And the most fundamental of them all: How to move forward?

These are weighty questions that deserve answers right now. Let’s start with building a counternarrative of “no more business as usual”. The specificity of the sport, including the autonomy and diversity of sport organizations, should continue to be recognized. At the same time, though, they cannot be construed to justify a general exemption from the application of the law. Good governance in sport must be made a condition for the autonomy and self-regulation of sport associations. The latter must be constantly justifying its claim to autonomy through repeated actions that with time a culture of governance will be created. The message here must be clear and loud: Betray the standards that frame your operations and forfeit your autonomy. If you fail to define and imagine yourself in a way compatible with the myriads of laws that set out the standard of legality, you must come to terms that at some point you will be redefined and reimagined by those who exercise some sort of supervision over you.

The moment of reckoning for Mr Infantino, used here as a symbol of the degeneration brought about by his and FIFA’s words and actions, must come. No amount of intellectually indefensible and embarrassing tirades, blackmailing players and federations, or an uncontested election, will change this. The culture of corruption and non-accountability are no longer to be tolerated. The constitutional law and the critical academic input both have a role in bringing about honest self-introspection and charting the way out of the current status quo. For now, football governing bodies keep failing miserably in defining themselves in a way that would be acceptable both from the legal and public perspective. Thus, they must be redefined and the oft-abused argument from the autonomy must not stand in the way. The true game of football has seen enough and the hearts of people who really care for the game are bleeding. It is high time that Lausanne listens. After all, the future of Our, and not Their game is on the line. We have to reclaim it.

Tomasz Tadeusz Koncewicz

Verfassungsblog.de

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