The whistleblowing can be defined as the disclosure by a person, generally an employee in a governmental body and or a business corporation, to the public or to an authority to which he reports, of mismanagement, corruption or illegal acts or any other wrongdoing.
- This concept is not new since it was introduced in 1863 in the United States with the False Claims Act to denounce contractors who charged more for the supplies they sold to the Loyalist army. This text granted the whistle-blower a part of the damages paid to the State. Like the federated states, the federal legislator has introduced whistleblowing devices in various areas. Its introduction in business law is, however, to the credit of Ralph NADER in the early 1970s.
The sports sector introduced this mechanism much later at the turn of the 2000s (in particular with British and Romanian legislation).
In the sports sector, the information disclosed may concern issues related to doping, manipulation of sports competitions, bribery, corruption, conflicts of interests, discrimination, racism or abuse (including physical and sexual abuse). Because such wrongdoings can be accompanied and sustained by strong forms of organisational silence (or “omerta“), whistle-blowers can play an invaluable role in their detection, investigation and eventual sanction.
- Experience in corporate or public administration settings shows that whistle-blowers can effectively participate in the self-regulation and risk management within organisations.
Despite their prominent role in the safeguarding of sport integrity, recent examples of whistle-blowers in sport demonstrate the difficulties that internal actors face when they want to break the silence and signal serious wrongdoings.
In order to promote and protect whistle-blowers, several models of procedures and policies can be developed by sports organisations. (IO1)
First, confidential and reliable reporting lines need to be accessible by all sports actors. They can take the form of hotlines, a secured web platform, mobile or computer application, a mailbox, or, ideally, a combination of these.
A trustworthy recipient needs to be empowered with collecting and handing the whistle-blowing reports, with sufficient capacities, resources and autonomy of action.
- The Macolin Convention advocates that sport organisations should ensure the existence of “effective mechanisms to facilitate disclosure of any information concerning potential or actual cases of manipulation of sports competitions, including adequate protection for whistle-blowers” – article 7/2/c.
Nevertheless, whistleblowing remains a rare practice in both public and private, and despite the implementation of several protected reporting channels, the level of reporting among sports actors is still low.
The reporting of infringements is an indispensable and critical measure to fight corruption and therefore the establishment of protected reporting systems in sport remains one of the fundamental provisions laid down in different frameworks. (IO1)
The implementation of protected reporting channels is difficult mainly due to:
- Risk of retributions
- Weak protection systems
- ‘Code of Silence’
Reporting corruption in sport, mainly match-fixing, remains a dangerous practice, and several sports actors claimed to have suffered different kinds of reprisals after denouncing illegalities in sport:
- Loss of opportunities
- Social exclusion
- Attempted murder
Code of silence
- The reticence to report not only derives from personal experiences but is also shaped by public evidence and discourses that circulate in the world of sport and in the media.
- In-field sports actors recognize the existence of informal rules that override the formal duties (sports and legal) of reporting. In such cases, the consequences emanate from the sport organizations themselves.
- The “silence” in sport is being treated as a phenomenon of individual responsibility and neglects a set of structural issues that underlie the practice.
- The culture of silence is not only related to a code of loyalty, but also to a set of “public secrets that deliberately recognize the existence of informal institutions that create and materialize these dangers” (Moriconi and Cima, 2020).
Whistleblowing is the best way to uncover and reduce corruption risks in sports and therefore EU Member States should implement a comprehensive whistle-blowers protection Law, considering the EU Directive on whistle-blowers protection (Directive), and include all violations of national and EU law. (IO2)
The European Directive on whistle-blowers protection – Directive (Eu) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.
The EU Directive requires EU Member States to ensure that all private sector legal entities with 50 or more employees expedite procedures and establish secure channels (which ensure confidentiality) for internal complaints.
The directive encourages whistleblowers to report, preferably through internal channels, but also opens the possibility for the whistleblower to file the complaint with the competent authorities in the country or the EU. To this end, States are urged to designate competent authorities and ensure that these create independent and autonomous external reporting channels.
The directive establishes protective measures against all forms of retaliation against whistleblowers and other individuals covered by the directive (professional reprisals, threats, coercion, etc.) and provides legal, psychological and/or financial assistance.
In view of the inertia of the entities regarding the complaint presented, or in the case of public interest, the complainant can report the violation through the media, while preserving the same right to whistleblower protection.
Member States should extend protection under domestic law to reduce legal uncertainty about the whistle-blowing protection under the Directive and include threats or harm to the public interest that occur in sport, such as harassment, or trafficking in human beings (not covered by the Directive). (IO2)
Promote and adopt clear procedures in setting-up a protected reporting system, considering, specially, the need to: (IO2)
- Establish who can use the whistleblowing channel and who can (and under which circumstances) receive protection;
- Define what types of complaints can be raised by those who decide to report;
- Establish how the complaint must be raised (e.g., written form, verbally, web platform, in which language, what are the essential elements of the complaint, etc.);
- Establish to whom the complaint needs to be raised (e.g., hotline, ethics officer, etc.);
- Provide alternative reporting lines/methods, either to management or to an outside body or institution.
To ensure the highest levels of protection and support to whistle-blowers, promote the adoption and wide acknowledgement to:
- Zero tolerance to any kind of retaliation (including discrimination, lack of promotions and training, harassment, job sanctions, or, in extreme scenarios, even physical threats);
- That retaliation issues will be treated as a disciplinary matter within the organization.
Ensure that staff and relevant third parties are regularly informed on reporting procedures via different channels. (IO2)
Ensure and preserve the confidentiality of the whistleblower’s identity whenever necessary and to the maximum extension possible to assure the highest level of protection. (IO2)
In the process of addressing a Complaint: (IO2)
- Ensure reports are acknowledged and processed in a timely manner;
- Extend protection to those who report in good faith, but not to those knowingly making a false complaint;
- Ensure the fair treatment of complaints;
- Keep the whistleblowers updated on the status of their complaints and the outcome of the investigations.
Ensure protection for representatives of sports actors such as trade unions. Member States should go beyond the definition of “facilitators” provided for the Directive and include civil society organizations (such as Transparency International national chapters) which, in some countries, play a very important role in supporting sports whistle-blowers.
Consider the reversing of the burden of proof in whistle-blowing procedures, while considering:
- The establishment of clear criteria to distinguish between intentionally false allegations from allegations that have not been supplemented with the necessary documents to substantiate their veracity;
- That the responsibility to prove the falsehood of the denunciation, in given circumstances, may lie on the (natural or legal) person denounced.
Member States should consider concrete measures to fully reverse the direct and indirect consequences of retaliation, namely through:
- Corrective measures to fully repair the situation prior to the reprisals and contemplate financial and non-financial compensations for covering the direct and indirect consequences, as well as future damages, associated with retaliation;
- The introduction, by sport organisations, of fair play (financial) awards to reward whistle-blowers in specific cases.
Given the difficulty of implement corrective measures in some contexts, anonymous reporting should be allowed when accompanied by the necessary supporting documents, information, and evidence.
A comprehensive whistle-blower protection system goes beyond measures against retaliation and should: (IO2)
- Provide transparent internal procedures to ensure the correct processing of the complaint and the whistle-blowers anonymity;
- Ensure responsibility and accountability of negligent natural and legal persons when dealing with complaints;
- Define sanctions for breaches of trust or confidentiality.
- Extend protection measures to all natural or legal persons likely to suffer reprisals from the (potential) denunciation
Sports organizations must act in accordance with the assumptions and objectives of the Directive, namely by focusing in:
- Implementing a culture of effective and responsible whistleblowing;
- Enacting dissuasive disciplinary sanctions for natural or legal persons who inflict physical, psychological, or professional reprisals to whistle-blowers;
- Punishing those natural or legal persons who are negligent in managing reporting processes;
- Protecting organizations that must disclose information, make automatic reporting or whistleblowing to other entities, for example, the competent judicial criminal police.
- Revising discourses to include narratives about informal norms that prevail in the world of sport and that need to be uprooted to promote transparency and integrity across all dimensions of sports.