MINISTERS’ DEPUTIES

CM Documents

CM(2018)162-addfinal

12 December 2018[1]

1332nd meeting, 12 December 2018 8 Youth and sport   8.2 Enlarged Partial Agreement on Sport (EPAS) – Recommendation CM/Rec(2018)12 of the Committee of Ministers to member States on the promotion of good governance in sport – Explanatory Memorandum

 

Sport benefits society in many ways. It is important to acknowledge and preserve its contribution to the promotion of tolerance and respect, to the empowerment of women and of young people, to the development of individuals and communities, as well as to the achievement of health, education and social inclusion objectives.

The delivery of these social benefits through sport is mostly ensured in an autonomous way by sports organisations which enjoy the right to freedom of association, but must comply with the applicable law. Sport does not operate in a vacuum and is not beyond the reach of justice. The values of human rights, democracy and rule of law apply to sport too.

Clearly, deficiencies in the governance of sports organisations are hindering their capacity to prevent and respond to threats to sport integrity, such as corruption, doping and manipulation of sports competitions and are creating an uncertain, unsafe and unfair working environment for athletes and other participants in sport. Good governance in sport is needed to preserve sports ethics and to ensure that sport organisations live up to their responsibilities.

Governments have the obligation to promote and protect human rights and to guarantee respect for the rule of law also in the context of sports organisations. Governments also have a vested interest in promoting good governance in sport, in particular because:

·                     governments are involved in preventing and responding to threats against the integrity of sport and to violations of the human rights of those participating in sports activities;

·                     governments support sports activities and the participation of athletes or teams representing national sports organisations in international competitions;

·                     governments invest in hosting events or bidding to host events;

·                     public broadcasters buy certain broadcasting rights.

When governmental authorities give support to sport, either directly or indirectly, by committing State funding, they have a duty to ensure that these resources are managed properly, according to their objectives.

The Council of Europe addressed the issue of good governance in sport at its 10^th Conference of European Ministers responsible for Sport (Budapest, 2004); it published a European survey on it and the Committee of Ministers adopted its Recommendation Rec(2005)8 on the principles of good governance in sport.

The 14^th Council of Europe Conference of Ministers responsible for Sport (Budapest, 2016) focused on the promotion of good governance in sport at national level and invited EPAS to prepare a recommendation with measures to enable governments and competent authorities to promote good governance in sport. The promotion of good governance was also at the core of the last Conference of Ministers responsible for Sport (Tbilisi, 16 October 2018), as highlighted in its Resolution on “the fight against corruption in sport: scaling up action”.

The promotion and enforcement of good governance principles are considered to be key to preventing and addressing the issue of corruption in sport. By improving their governance, organisations become more inclusive and efficient. A transparent, accountable and democratic governance includes stakeholders in strategic decision-making processes. Moreover, a system of checks and balances enables trust.

Recommendation Rec(2005)8 of the Committee of Ministers to member States on good governance in sport states that effective policies and measures of good governance in sport include as a minimum requirement:

-            democratic structures for non-governmental sports organisations based on clear and regular electoral procedures open to the whole membership;

-            organisation and management of a professional standard, with an appropriate code of ethics and procedures for dealing with conflicts of interest;

-            accountability and transparency in decision-making and financial operations, including the open publication of duly audited yearly financial accounts;

-            fairness in dealing with membership, including gender equality and solidarity.

Besides their direct interest in sports, governments also bear the responsibility, through criminal law, for preventing and responding to breaches or threats to human rights, the rule of law or the public order, health and safety. Criminal cases in a sport-related context must be investigated and prosecuted as in any other field, to establish the truth and bring to justice anyone responsible for breaching the law.

As previously mentioned, governments are involved in supporting their national sport movement and therefore can influence to some extent sport at national level. As most decision-makers in international sports organisations come from national sports organisations, the governance culture and mind-set are shaped at local and national level and governments can contribute to their improvement.

EPAS is gathering and sharing good practices, coming from either governments or umbrella sports organisations, on the promotion of good governance in national sports organisations. In addition to the promotion of good practices, EPAS has worked on the role that governments can play in supporting the implementation of good governance in sport, which could cover areas such as monitoring good governance of sport at national level, supporting awareness-raising, training and advice to sports organisations, conditioning the awarding of public grants to sports organisations on complying with all good governance criteria, ensuring that the national criminal law is applicable to acts of corruption in sport and enables its prosecution, and facilitating the exchange of information between the sport movement and public authorities, etc.

This recommendation concerns those aspects of the activities of governments and national umbrella sports organisations which can significantly improve the governance of sports organisations based on their territory and which can limit opportunities for corruption in sport. It comprises a number of general rules that should underpin the legislation, policies and practices of States on this subject.

Paragraphs 1 to 10 include the various recommendations directed at the governments of Council of Europe member States.

Paragraph 1 refers to appropriate legislation which would allow for investigation, prosecution and mutual legal assistance with police and judicial co-operation in cases of corrupt behaviour in sport. Monitoring reports from GRECO, as well as a recent typology study by GRECO have highlighted that the scope of application of criminal provisions on private corruption is sometimes limited to business activities. Therefore, sport organisations - which are often established as non-profit associations - may fall outside the remit of

these provisions. Governments are recommended to ensure that investigations, prosecution and mutual legal assistance with police and judicial co-operation are actually allowed in cases of corrupt behaviour in sport.

Paragraph 3 refers to appropriate provisions on the fight against money laundering and corruption in the field of sport. These provisions include those recommended by the Financial Action Task Force (FATF). However, governments can decide to go even further and request that their financial institutions consider some leaders of sports organisations to be "politically exposed persons”, requiring enhanced risk mitigation measures.

The good governance principles referred to in paragraphs 4, 5 and 6, should be understood in light of Recommendation Rec(2005)8 of the Committee of Ministers to member States on the principles of good governance in sport, which specifies the minimum requirements with regard to the governance of sports organisations.

Paragraph 4 refers to the monitoring of the implementation of good governance principles by their national sports movement; such monitoring can be done directly in cases where governmental authorities collect information on the implementation of good governance by sports organisations, by means of reports, questionnaires, hearings, or audits. It can be done indirectly in cases where the governmental authorities entrust, for instance an umbrella sports organisation, with the task of ensuring that its member organisations comply with good governance principles and gather information so as to document such compliance.

Paragraph 5 recognises that economic incentives can be used to encourage the implementation of good governance principles while respecting the autonomy of the organisations concerned. Criteria for the awarding of public grants should be inspired by internationally recognised good governance standards and principles.

Paragraph 7 refers to measures that the sports organisations themselves should be encouraged to implement. Since these measures may depend on the institutional setting of the organisations, they should be prepared in an inclusive manner and take into consideration the opinions of the organisations’ stakeholders such as athletes, clubs, international and national umbrella organisations to which the organisation is affiliated. Other stakeholders such as sponsors as well as anti-corruption and governance experts may also be involved. The legal requirements applicable to associations and to sport in general should also be respected. Appropriate good governance measures may include, in the case of members of the Olympic movement, the IOC Universal Principles of Good Governance[2] and, in the case of Summer Olympic Sports, the ASOIF Key Governance Principles.[3] The “Sport Governance Observer” indicators, the Recommendation of the Committee of Ministers of the Council of Europe[4] and the set of principles developed by an Expert Group from the European Union,[5] are other pertinent reference documents.

The reference to a balanced representation of their members within the decision-making processes is one of the requirements of an inclusive and democratic governance. Paragraph 7 underlines the need for the decision-making bodies within an organisation to reflect upon the entire composition of its membership not only in terms of sociological categories (for example, women, men, language, people from a migrant background, etc.) but also in terms of interest groups within the organisation (for example, clubs, athletes, grassroots sport, etc.).

The reference to co-operation with independent experts on reviewing good governance covers actions such as the involvement of independent experts in supporting self-evaluation procedures, as well as the provision of information to national or international reviews run by academics or independent organisations, that can complement the results gathered by the sport organisations themselves. Co-operation with independent experts in these matters can help to review the situation in the light of experience from other organisations, to consider things from a new perspective and to promote transparency and trust.

Paragraph 8 stresses the importance of co-operation with other key stakeholders. This is particularly important for the fight against corruption in sport, as highlighted in the Council of Europe Convention on the Manipulation of Sports Competitions.

Paragraph 9 refers to structural conflicts of interest which organisations can come across when they are in charge of promoting a sport or a sporting nation aiming for high-level results, and at the same time in charge of protecting the integrity of the same sports activities. For example, if it is in an international federation’s interest to see its most famous champions involved in an international competition and it is at the same time responsible for guaranteeing that the anti-doping rules apply to those same athletes, the federation could find itself in a conflict of interest situation. In the same way, a competition organiser could have a commercial and media interest in having certain competitors participate in its event, while also playing a role in protecting the integrity of the sport by applying eligibility criteria or by ensuring sanctions are imposed. This same type of conflict of interest can also apply to a governmental agency (such as a ministry in charge of sport), which may have performance objectives to be achieved by national teams and which in parallel is responsible for upholding the integrity of its athletes. In order to prevent this type of conflict of interest, it is important to guarantee the operational independence of those bodies in charge of investigations, anti-doping testing and test distribution plans, analysing samples, managing the results and the disciplinary procedures which could ensue. However, the question of conflicts of interest between development or performance goals and the protection of sport integrity needs to be understood in a more general way. Indeed, such a conflict of interest can concern fields other than the fight against doping, for example the manipulation of sports competitions.