ARTIGOS DE OPINIÃO: IOC, os governos nacionais e a autonomia do desporto: uma relação difícil (EN)

Fraude Desportiva - Opinião

23.12.2013 – Soon after taking office as the new President of the International Olympic Committee (‘the IOC’), Thomas Bach gave a speech to the United Nations General Assembly on 6 November 2013, the crux of which was that there was a need for all governments around the world to protect the autonomy of sports organisations.

However he qualified this, saying that in return sports organisations needed to justify their autonomy by demonstrating good governance. This was his overall vision for the partnership between the worlds of sport and politics. However, the policy the IOC seems to be pursuing in practice is one whereby rather than acting in partnership with national governments, it is dictating to them how they should run the sports in their country. This is currently happening in three countries: India, Sri Lanka and Egypt.

The Olympic Charter (‘the OC’) is the governing instrument for all those involved in the Olympic Movement. In the introduction to the most recent version of the OC, in force from 9 September 2013, it states that the OC is a “basic instrument of a constitutional nature…[defining]…the main reciprocal rights and obligations of the three main constituents of the Olympic Movement…one of which are the National Olympic Committees” (‘NOCs’). Constitutions are not something often associated with anything other than nations. Indeed, the way in which the IOC polices compliance with the OC is very similar to that of a nation rather than a private sporting body.

Chapter 4 of the OC sets out the reciprocal rights and obligations of the NOCs. Overall, the role of the NOCs is: “To develop, promote and protect the Olympic Movement in their respective countries, in accordance with the Olympic Charter.” [Rule 27.1] It is the view of the IOC that this has not happened in India, Sri Lanka and Egypt. One common theme that runs through the dialogue with, and actions taken against, all three of these countries by the IOC is government interference in the NOC. Under the Charter, this can manifest itself in two ways. First, although “the NOCs may cooperate with governmental bodies…they shall not associate themselves with any activity which would be in contradiction with the Olympic Charter.” [Rule 27.5] Secondly, “the NOCs must also preserve their autonomy and resist any pressures of any kind, including… political [or] legal…pressures which may prevent them from complying with the OC.” [Rule 27.6] By agreeing to the OC, it seems that NOCs are being given the responsibility, and indeed expectation, that where national governments wish to put policies and laws in place which contradict, or are not on all fours with the OC, that they will stand up to the government. I view this as an unrealistic expectation of an NOC.

In the case of India, the Indian Olympic Association (‘the IOA’) has been suspended by the IOC since 4 December 2012 as, in addition to the principal concerns about people being placed in positions of authority within the IOA that have questionable integrity, the IOC were not convinced there was no governmental interference in the running of the IOA, despite assurances to the contrary. The IOC has the power to suspend an NOC under Chapter 6 of the OC – specifically Rule 59.1.4. This Rule gives the IOC extremely wide discretionary powers to sanction NOCs for what, in their opinion, are breaches of the OC. The IOC exercises this power seemingly without oversight by any political, sporting or other body. In any industry other than sport, such a lack of checks and balances on power would not be seen as acceptable. Not only does the suspension prohibit Indian athletes competing under their national flag at international tournaments, rather they have to compete under the Olympic flag (some would suggest this is a further sign of the IOC trying to give itself equivalent status to a nation), but it also means that all financial support from the IOC for the development and promotion of sports in India has been stopped and reputational damage suffered by the country as a result. The IOA has recently amended its constitution to placate the IOC but it technically still remains suspended for the upcoming Sochi winter Olympics.

The same can be said of what has happened in Sri Lanka. Once again, the IOC were concerned about alleged government interference in the elections, membership selection, rules and operations of the NOC, but more significantly the IOC also said that the sports law which had been in place in Sri Lanka since 1973 needed to be updated to comply with the OC. This is another example of IOC is dictating to a national government what it should have in its laws and statutes. The Sri Lankan Sports Minister in response has pointed out that 80% of the NOCs funding comes from the Sports Ministry, compared with only 0.1% from the IOC.

A very similar situation has recently arisen in Egypt, where the IOC has demanded that the Egyptian government updates its sports law from 1975 to make it fully compatible with the OC. The IOC also apparently views itself as the proper person to set deadlines down to the national government by which the changes to the sports law must been implemented. As with Sri Lanka, the demand in changes to the Egyptian sports law principally concerns maintaining the autonomy of the NOC and ensuring a complete absence of governmental interference in its operations.

Despite being a purely private body, it appears that the IOC is acting as a supra-national body dictating to NOCs, and therefore national governments (directly or indirectly), how sport should be run in their respective country. This is despite the fact that many of the changes the IOC are insisting upon to sporting legislation, either sports regulations or national laws, are in the main progressive, as the Fundamental Principles of Olympism are all about a positive and inclusive attitude to sport. Yet one cannot help feel uncomfortable that the IOC feels it appropriate to dictate to national governments the content of such legislation and timescales within which such amendments must be made. After all, it is not national governments who have signed up to the OC – rather it is the NOCs who have signed up to this private contract with the IOC.

It is important to have oversight of executive power within sport, and an insistence on principles of good governance; however it must surely be right that a national government has a say as to how NOCs are run and by whom given the political, social and cultural differences and sensitivities in each individual IOC member country. After all, the success of the athletes who compete under the national flag reflects globally on the reputation of a nation. Although sport can be a driver of social change, it is my opinion that we are straying into dangerous territory if private international sporting bodies (FIFA also have a similar approach) are getting involved in the national political and legislative process. If it does take this policy decision then the IOC should stand up and fight for all issues in every member country that are contrary to the Fundamental Principles of Olympism, with the homophobic laws Russia have put in place ahead of Sochi 2014 being a prime example.

 Kevin Carpenter

Fonte: lawinsport

Kevin CarpenterKevin Carpenter

Kevin is a consultant and member of the editorial board for LawInSport, having previously acted as editor. He is a sports lawyer for international law firm Hill Dickinson LLP advising on commercial and regulatory issues. Kevin has become renowned in the fields of sports integrity, match-fixing and sports betting.

Kevin is also a prolific writer and speaker internationally on sports law and has been quoted in a report for the European Commission. In addition he has been interviewed by Primetime News Asia in Singapore and twice recommended by INTERPOL’s Integrity in Sport unit. He has his own regular sports law blog which looks at a variety of sports law issues. As well as his sports legal career, he is a qualified football referee officiating at the semi-professional level in the 11-a-side game and at the national level in futsal. He is also a qualified referee tutor, mentor and coach. Kevin is a keen follower of all sports, especially football, rugby, motorsport, tennis and NFL. You can connect to Kevin on LinkedIn.

kevin.carpenter@lawinsport.com @KevSportsLaw

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