Ian Warren presents on ‘Private and Public Dimensions of Sports Governance’
Recently Dr Ian Warren presented a paper at the Biennial Conference of the Australian Society for Sports History in Canberra. His paper, ‘Private and Public Dimensions of Sports Governance’ argued that tracing the historical evolution of different modes of sports governance is essential to understanding dilemmas or scandals in contemporary sports administration, as well as the various inconsistencies in resolving these through greater state intervention or pre-existing modes of self-regulation. For more information on Ian’s presentation, please see the below abstract.
Presentation abstract
The question of when public law should enter into the largely self-regulatory domains of sports leagues and clubs remains a vexing one that is open to rich historical analysis. This paper argues that tracing the historical evolution of different modes of sports governance is essential to understanding dilemmas or scandals in contemporary sports administration, as well as the various inconsistencies in resolving these through greater state intervention or pre-existing modes of self-regulation.
Self-regulation refers to the legal capacity for self-governance by systems of internal rules, procedures and agreements. These internal provisions are given legal authority, commonly through binding contracts. Governance processes that determine the content of internal rules, regulations and various competition requirements are also recognised through private administrative or ‘club’ law. While courts may interpret the legal validity of sports contracts and other self-governing administrative processes, these are largely instigated from within the sporting fraternity, rather than compelled through public law.
The increasing public interest associated with sports violence, cheating, corruption and off-field misconduct by athletes is a key measure for assessing deficits in self-regulation. By the same token, there are numerous examples where public regulatory processes that coexist with or override the internal rules and disciplinary requirements can ‘overcriminalise’ problematic behaviour, usually by high-profile athletes. Further, at some points in history, the self-regulatory structures of some sports have been completely taken over by public administrative regimes. This paper is concerned to explore the trigger points where private self-governance and public law intervention coalesce.
The historical evolution of the governance of professional boxing, and the contemporary issue of salary cap breaches, are used in this paper to generate critical discussion of ‘when’ it is considered appropriate for the public law to interfere in questions of self-regulation in sports governance. These disparate examples aim to address two prominent gaps in the regulatory and sports governance literature, which consists mainly of descriptions of the types of public law intervention that can occur, rather than the more complex question of when public law intervention is appropriate.
While there are inconsistencies between jurisdictions, the historical evolution of professional boxing in the USA and Australia reveals numerous examples involving the full state takeover of the sport’s governance, usually after a widely publicised death, an administrative scandal or concern over links to corruption and other forms of criminality. This example reveals pertinent trigger points that lead to the state to fully take over the administration of a sport that has historically been clouded by perceptions of its inherent dangerousness and organised criminal influences. In contrast, the Melbourne Storm salary cap breaches demonstrate the reluctance to invoke state intervention, despite the various public laws targeting financial offending, fraudulent behaviour and criminal deceit. The implications of these decisions over when to and not to intervene through public law are discussed, with emphasis on their disproportionate impacts on athletes rather than administrators or governance entities.