Chapter 2. Sports Governance

• Pages: 14-49

2.1 INTRODUCTION

The aim of this chapter is to explore the key factors that contribute to eective sports regu-

lation. The chapter begins by oering a definition of the term ‘sports governance’, and then

proceeds to examine matters like autonomy and self-regulation, juxtaposing these principles

against the role played by governments in regulating sport. Intertwined in this analysis will be

an overview of the legal status of sports governing bodies together with a discussion of the

very interesting question of whether judicial review principles apply to the decisions made by

sports federations. The chapter will end by addressing the connected themes of sports dispute

resolution and the applicable principles in the sports disciplinary process.

2.2 DEFINING SPORTS GOVERNANCE

Sport governance can be defined as the process by which the board sets strategic direction and

priorities, sets policies and management performance expectations, characterizes and manages

risks, and monitors and evaluates organizational achievements in order to exercise its account-

ability to the organization and owners.1

King oers, in the foregoing excerpt, one of many definitions of sport governance, with his defi-

nition embracing policy-setting, strategic direction, management performance and account-

ability. The question of accountability, in particular, has taken on added significance within

recent years, exemplified in the United Kingdom by the establishment of the 2016 Code for

Sports Governance whose purpose is ‘to protect the value for money the public receives from

investment into sport and maximize the eectiveness of those investments’.2

The UK’s perspective, then, is that there should be a tangible product that provides evi-

dence that the financial investments made in British sport are not in vain. Value for money is

a clear and reasonable expectation, which straddles not only British sport, but increasingly

Caribbean sport as well.

Interestingly, it is within the context of public procurement, with emerging legislation like

the Public Procurement (Caribbean Community) Act 2017, where core pillars such as transpar-

ency, integrity, proportionality, accountability and value for money are promoted. The expec-

tation is that when public money is spent, it can be accounted for. Notably, the very definition

of ‘public money’ in the 2015 Public Procurement and Disposal of Public Property Act3 of

Trinidad and Tobago is wide enough to capture the various national governing bodies (NGBs)

for sport in that country.

1 Neil King, Sport Governance: An introduction (Taylor& Francis, 2016).

2 Nick Bitel and Rod Carr, ‘A Code for Sports Governance’ (Sport England and UK Sport, 2016).

3 Act No 1 of 2015.

CHAPTER 2

SPORTS GOVERNANCE

Sports governance 15

2.2.1 The Olympic movement: good governance principles

Good governance implies proper financial monitoring.4

This succinct principle, evidently, has proven elusive to many international sports federations,

with 2016 media reports suggesting that even the IOC was itself embroiled in allegations of

financial impropriety linked to the successful Tokyo bid for the 2020 Summer Olympics.5

Those developments generated much public interest not only in the aftermath of the Rio 2016

Games, but also against the backdrop of the sports governance taskforce created in late 2015

by the Association of Summer Olympic Inter national Federations (ASOIF).

In the Caribbean context, the month of May 2016 will be remembered as pivotal in the

Trinidad and Tobago Olympic Committee’s (TTOC) journey to deepen the roots of good

governance among its aliates. The TTOC initiated the creation of a Good Governance

Commission oering NGBs aliated with it the opportunity to endorse various commitments,

including term limits for executive committee members and regular constitutional reviews. Such

an initiative closely followed the October2015 Final Report of the Review Panel on the Governance

of Cricket, the product of a Committee chaired by Professor V. Eudine Barriteau,6 Pro-Vice

Chancellor and Principal of the University of the West Indies, Cave Hill Campus, Barbados.

The following excerpt from the report is noteworthy:

We have reviewed the state of West Indies Cricket, particularly its governance arrangements and

conclude that the challenges lie not specifically with the leadership per se, but with a governance

structure that is antiquated and incapable of addressing the social, economic and cultural realities of

cricket in the twenty first century Caribbean...We firmly believe that this archaic structure con-

tinues to support particular types of governance practices that do not recognize that in the pro-

duction of cricket, the interests of the stakeholders-not only those of shareholders-are equally

valid and cannot be ignored. The extant governance arrangements are oblivious to, and/or out

of touch with the changes in the Caribbean and the international game and Caribbean societies.

The WICB and Territorial Boards have been able to ignore the extent to which their operations

lack transparency and accountability because the current structures do not respect these basic tenets of good

governance within their operations.7 [Emphasis added].

This was an incisive observation that sought to get to the heart of the diculties facing West

Indies cricket, both on and o the pitch in the last two decades.

The Barriteau Report8 lucidly made a distinction between the individuals and the struc-

ture, describing the latter as antiquated and anachronistic. Indeed, the comment that the

4 Basic Universal Principles of Good Governance of the Olympic and Sports Movement, Principle 3.2.

5 ‘Olympics: IOC refuses to comment on Tokyo “payment” claim’ BBC Sport (London, 11 May2016) www.

bbc.com/sport/olympics/36270719.

6 The other Cricket Review Panel members were Sir Dennis Byron, MrDwain Gill, MrDeryck Murray and

MrWarren Smith.

7 Final Report of the Review Panel on the Governance of Cricket (CARICOM, October2015) 12.

8 A similar cricket governance review was concluded in Trinidad and Tobago in February2018, chaired by

High Court Judge Vasheist Kokaram with remarkably similar governance concerns and recommendations.

Vasheist Kokaram, Sheila Rampersad and Ellis Lewis, ‘Report on the Governance of Trinidad and Tobago

Cricket’ (Independent Review Committee, 22 February2018). Among other things, the committee consid-

ered that:

the incumbents have a head start at a general election with a possible twelve (12) votes com-

prising six (6) votes from outgoing ocers of the Executive and six (6) votes of the nominated

members. Theoretically, taking this argument to its logical conclusion, a case can be made that

the incumbents can command a total of twenty seven (27) votes– eleven (11) executive members,

16 Sports governance

structures did not respect the basic tenets of good governance, especially accountability and

transparency, are far from complimentary. It suggests that one of the sports with the most

powerful unifying capacity in the region has failed to keep in step with sports governance best

practice in the modern era. Arguably, the most contentious element of the report was the rec-

ommendation for the immediate dissolution of the Board and the resignation of its members.

It is hardly surprising that this proposal was greeted with a lukewarm response by the sitting

Board.

The ‘antiquated’ governance structure that was demonized in the Barriteau report rep-

resents a relic of the past that serves little commercial, logistical or operational purpose today.

Under this governance structure, which came into eect in 1998, the six constituent territorial

boards which comprise CWI, namely Barbados, Guyana, Trinidad and Tobago, Jamaica, the

Leeward Islands and the Windward Islands, are automatically guaranteed two directors on the

CWI Board of Directors, amounting to 12 directors in total. More recently, a few non-member

directors (currently three) have been appointed to the CWI, but power, in its truest sense, still

rests with the 12 directors, and the territorial boards themselves, each of which, as sharehold-

ers, are allotted two shares and an equivalent number of votes. These territorial boards in turn

elect CWI’s president and vice-president.

Among the challenges associated with this antiquated form of governance are the fact that

a territorial board could only appoint or remove a director from its territory, and therefore,

as shareholder, it is unable to influence the general composition of the board, apart from its

own appointees. As a natural corollary to this, the territorial boards, and the directors who are

appointed by them, are primarily accountable to their respective boards, and arguably repre-

sent the interests of their respective boards, rather than the interests of West Indies cricket as

a whole. Moreover, in similar vein to the sentiments expressed by David Crawford and Colin

Carter in their review of Cricket Australia’s governance structure in 2011, this method of

governance ‘does not even pretend to take the needed skills of the [Board] into account [as

each territorial board] appoints its own representative(s) to the [Board] with little consideration

for whether their appointees add to, or duplicate, the skills already there’.9 In other words, it is

arguable that under the current dispensation of governance of Cricket West Indies, directors

are not chosen for their complementary skills, experience or their capacity to contribute, but

rather, based on their loyalty and representation of their respective territorial boards.

More generally, at present, in similar vein to the governance of Cricket Australia prior to

its recent reconfiguration, it is possible that each nominated director is, or has been, a serving

member of his territorial board, which invariably creates a real conflict of interest. Governance

‘best practice’ has it that conflicts of interest are undesirable.

All in all, in the absence of a willingness by CWI to voluntarily dissolve, a first, and perhaps

conservative, step might be to adopt an approach to governance whereby directors are not

six (6) nominated members and ten (10) aliates– and need to command twenty nine (29) out

of the forty nine (49) available votes in the delegate system to perpetuate their term of oce.

In other words, incumbents have the task of securing only two (2) votes from the twenty one

(21) zonal representatives and six (6) national league representatives to be re-installed. The sub-

mission was made to the IRC based on a view that nominated members and aliates may owe

their loyalty to internal political aliation or other partisan considerations based upon the finan-

cial rewards conferred on it during the term of oce. The Independent Review Committee

agrees with the view that such a system is not consistent with the principle of open participation

although the TTCB has attempted to embrace all stakeholders in the organization through the

delegate system.

9 David Crawford and Colin Carter, ‘A Good Governance Structure for Australian Cricket’ (Australia Cricket

Board, December2011).