As anticipated in The Sports Consultancy’s ‘5 for 5’ article back in July looking at the priorities facing sport over the next five years, the volume and frequency of investigations, inquiries and reviews being carried out by or on behalf of sports bodies has continued to increase throughout 2017. This has included investigations across a wide spectrum of sports of all sizes, both nationally and internationally, concerning issues such as athlete welfare, betting and integrity, safeguarding, anti-doping, discrimination, governance and commercial transactions.
It is not just the volume and frequency of these investigations which is increasing, but also the complexity and the cost. Whether the investigations involve global betting syndicate networks, state-sponsored doping programmes or allegations of historical emotional or physical abuse, an increasing level of sophistication and resource is needed to address the concerns effectively.
With UK bodies coming under particular scrutiny following the implementation of the Sports Governance Code this year, the need to identify, investigate and resolve these issues – and to be seen to do so – becomes ever greater. With funding at stake, bodies will now have no choice but to act.
However, a poorly planned or poorly executed investigation can cause more harm than good to an organisation. So what considerations should a sports organisation take into account when commissioning or carrying out an investigation?
Failing to plan is planning to fail
In a world where bad news can spread globally at the click of a button, it is all too tempting to rush into an investigation – after all, the sooner it starts, the sooner it can finish and the sooner you can get to the bottom of the issue and move on. However, a poorly planned investigation started without adequate terms of reference, objectives and jurisdiction can take on a life of its own and be difficult to contain or stop.
The terms of reference can determine whether the investigation is likely to succeed or fail. Too wide and it may uncover a breadth of issues but never reach a satisfactory conclusion; too narrow and it may not achieve anything at all.
It is important to address at the very earliest stage some key questions, and to reflect the answers in a carefully developed terms of reference and project plan:
- What is the outcome you are looking to achieve?
- Will the investigation focus on individuals or on structural or cultural issues?
- What time period are you investigating?
- What do your rules allow you to do/prevent you from doing?
- What are the parameters of your jurisdiction?
- What powers do you have to collect evidence?
- What is the budget?
- How long should the investigation last?
Communication is key
The media attention that sport draws is a double-edged sword. On the one hand, it can deliver multi-million pound commercial deals for sports organisations, whilst on the other the public scrutiny that sports bodies and their personnel come under when negative issues arise can be more intense than any other industry.
Investigations arise when negative issues have been identified and therefore developing and implementing a joined-up communications plan from the outset, and throughout the course of an investigation, is critical.
This includes educating the media and public regarding the purpose, scope, limitations and likely outcomes of the investigation, as well as proactively managing the inevitable leaks that may arise during the course of the investigation. Further, an effective internal communications programme will ensure that personnel and stakeholders within the sports body itself understand the process, how to contribute and remain ‘on message’.
The right personnel
Self-regulation is one of the cornerstones of sport and sports bodies are traditionally extremely resistant to any help or oversight from outside of their sport. Whilst in some cases the sports bodies themselves may well be best-placed to carry out an investigation, questions of actual or perceived conflict, lack of objectivity, political sensitivity or legal expertise may arise. For these reasons, bodies should consider whether independent scrutiny might be more appropriate.
Whatever the approach, bodies should think very carefully about the most appropriate individuals or organisations to carry out the investigation in question. Depending on the scale and nature of the investigation, a best-practice investigation panel would typically comprise a combination of legal, subject-matter, investigative and sport-specific expertise. Specialist services – for example, digital forensics – might also be considered for complex investigations.
Consideration should be given to the support that an investigating panel has in terms of secretariat services, evidence-gathering and sharing of best practice and know-how across similar investigations.
Achieving a meaningful outcome
An investigation is pointless unless there is a clear plan of what to do in the event of a serious issue being identified and unless there is a willingness – or a compulsion – to address any such issue.
A good investigation will result in clear recommendations aimed at not only addressing the issue but also at mitigating the risk of such an issue arising again in the future. The recommendations should be capable of being implemented and must be appropriate and proportionate for the organisational structure and sport in question.
A clear plan for implementation – whether through rule changes, policy updates or sanctions – should be outlined and actioned. This may well also include structural measures such as education programmes, independent monitoring units or whistleblowing services being put in place, ensuring earlier detection or prevention in future.
New sports investigations are announced almost weekly – and many more investigations are being conducted that are not announced – and there is no doubt that we will continue to hear more and more on this topic. We expect a lot of developments in the area as sports look for a more uniform and cost-effective approach to how the investigations are conducted.
Ashley Blake is a Partner at The Sports Consultancy Legal. Together with Quest, The Sports Consultancy and The Sports Consultancy Legal have recently launched Global Sports Investigations, an independent intelligence-led inquiries and investigations service for sport.