The fiction of democracy in FIFA’s governance of football and the case of Football Federation Australia

Abstract

In its governance of football, FIFA claims to be democratic. In addition, FIFA purports to apply standards of democracy to its members. This article examines the nature and validity of the basis of these claims to democratic legitimacy. In particular, it considers the application of the principles of representative democracy within the governance of football by reference to the governance structure of FIFA and by reference to the example of one of its members, Football Federation Australia. It is argued that the governance structure of FIFA is not democratic, notwithstanding the associations’ pretensions to democracy, and that fundamental reform is required to make both FIFA and its member associations democratic.

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Notes

  1. 1.

    We are concerned with the issue of FIFA’s ‘authority’, as distinct from its ‘power’. While ‘power’ involves the ability to compel compliance, ‘authority’ involves a right to rule and a corresponding moral obligation to comply: see Coleman and Shapiro 2002), p. 385: ‘A gunman has power, but he does not have authority. He can coerce his victim to cooperate by threat of force, but he is unable to impose the moral obligation to comply.’ See also Raz (1986), p. 26; Roughan (2016), p. 332.

  2. 2.

    It is to be noted that whilst the focus here is on legitimacy, this does not mean that substantial issues of legality do not arise in the governance regime of international sport: see Freeburn (2018) chapters 2 and 5. Further, legitimacy and legality have an important relationship: see Coleman (2007), p. 585, noting that H L A Hart’s point that the law is one thing, its morality another was ‘designed primarily to call attention to the need to resist the inference from legality to legitimacy—a warning not to infer the legitimacy of laws from their status as laws’; Buchanan (2010), p. 80; Black (2008), pp. 144–145.

  3. 3.

    Thereby satisfying the principle of political legitimacy: Rawls (2005), p. 224. See also Nagel (1991), p. 330. Focussing on legal validity ‘will often be irrelevant, or at least unproductive’: Black, above n 2, 144-5. Unlike legality, which is not scalable, a system may be more or less legitimate: Perry (2013), p. 12; Schultz (2011), p. 59.

  4. 4.

    Black, above n 2, 144–5. Buchanan, above n 2, 79–80. See also Perry, above n 3, 6–7, referring to the ‘problem of justification’: When, and under what circumstances, do states ever hold the legitimate moral authority that they claim for themselves?; Raz, The Morality of Freedom, above n 1, 26; Buchanan and Keohane (2006), p. 407; Antoine Duval (2013), p. 822.

  5. 5.

    Football Internationale de Football, Statutes, August 2018 edition, art 1(1).

  6. 6.

    See Freeburn, Regulating International Sport, above n 2, chapter 11, [2.1] and authorities cited.

  7. 7.

    Ibid, chapters 2 and 3.

  8. 8.

    Indeed, FIFA is vigorous in its protection of its independence from governmental control: see FIFA Statutes, art 14(1)(i), 15 (c), 19. For an example of FIFA purportedly acting to protect against government interference, see Associated Press, ‘Pakistan hit by FIFA suspension over government interference’, 11 October 2017.

  9. 9.

    It is an essential characteristic of the regulation of international sport that there be consistent and uniform categorical rules and disciplinary processes that apply across a sport, regardless of geographic boundaries and which is not contingent upon individual consent.

  10. 10.

    In football, other than perhaps for some periodic international competitions such as the World Cup (see FIFA, ‘Regulations 2018FIFA World Cup Russia’, March 2015) where players compete as national rather than club representatives, players are not contracted to international or national federations: Doldge and Carter 2015, http://theconversation.com/how-uefa-could-leave-fifa-and-launch-its-own-world-cup-42629.

  11. 11.

    See, for example, Pechstein and Mutu v Switzerland, ECHR, 2 October 2018, nos 40575/10 et 67474/10 (‘Mutu and Pechstein’); International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15; Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65. See also Gardiner et al. (2012), p. 97; Blackshaw (2009); Anderson (2010) [3.30].

  12. 12.

    The ‘very essence of the construction of modern sport is rooted in classic liberalism, notably in the freedom of association’: Geeraert et al. (2014), p. 282. See also Szymanski (2006), pp 33–34.

  13. 13.

    In civil law jurisdictions, this is the position under a contractual theory (the Vertragstheorie) in which the relationship is based on a contract between the parties; under an institutional theory (Normentheorie) in which an association’s articles of association ‘are an “objective law” based on the freedom of association’ that are not like negotiated contractual terms, but represent an ‘attempt to establish an order of social life that ensures the achievement of a super-individual purpose’, is applied: see Kleef (2014), p. 24, 31. See also C Aguet, ‘La sanction disciplinaire infligee par une federation internationale a l’encoutre d’un non-membre a-t-elle une source de droit de l’association?—Reflexions a la lumiere de l’arret du Tribunal federal No 4P.240/2006’ (2007) Jusletter 16 April 2007. Available at http://www.weblaw.ch. Similarly, under private law in common law jurisdictions, contracts are the form of legally recognised voluntary undertaking that create obligations. Hence the proposition that the authority of private or domestic tribunals is ‘derived solely from contract, that is, from the agreement of the parties concerned:’R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864, 882 (Lord Parker CJ); 884 (Diplock LJ). See also Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302, 1307 (Lawton LJ), 1309 (Fox LJ), 1312 (Slade LJ); Lee v Showmens Guild [1952] 2 QB 329; Abbott v Sullivan [1952] 1 KB 189 (CA); Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 (Ch); Davis v Carew-Pole & Others [1956] 1 WLR 833 (QB) 844 (Pilcher J); R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909, CA, 924 (Thomas Bingham MR), 928-9 (Farquharson LJ), 931 (Hoffmann LJ); R v Football Association of Wales; Ex parte Flint Town United Football Club [1991] COD 44; R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225, 248 (Simon Brown J); Wilander v Tobin [1997] 2 CMLR 346, 357 (Lord Woolf MR); R (on the Application of Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin), [30] (Stanley Burton J); Australian Football League v Carlton Football Club [1998] 2 VR 546, 550 (Tadgell JA); McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, [92]-[95], [109]; Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144; Lawson v Hewell 118 Cal 613, 50 Pac 763 (1897); Anthony v Syracuse University 224 App Div 487, 231 NY Supp 435 (1928); Mayer v Journeymen Stonecutters’ Ass’n 47 NJ Eq 519, 20 Atl 492 (Ch 1890). See also Elizabeth Hospital Inc v Richardson 167 F Supp 155 (WD Ark 1958), aff’d 269 F 2d 167 (8th Cir), cert denied 361 US 884 (1959).

  14. 14.

    Democracy underpins the legitimacy of governments in liberal democracies: see Mulgan (2003), p. 115: the general rationale underlying accountability is the need to hold the powerful to account and this rationale applies equally to the public and private sectors. See also the analogy drawn between sports governing bodies and governments by the CAS panel in AEK Athens v UEFA CAS 98/200, award of 20 August 1988, Digest of CAS Awards II 1998-2000 (Kluwer, 2002) 38, [58]. See also Silance (1977), p. 618, 622; Focarelli (2012), p. 176; Collingwood (2006), p. 439, 448; Smits (2006), p. 9, 19; Banakas (2006), p. 83, 87; Shapiro 2002, p. 431, 432–7; Gardiner et al. (1993), p. 92; Bodansky (1999), p. 93 American Society of International Law 596, 599; Black (1996), p. 24.

  15. 15.

    See Freeburn, above n 2, chapter 2.

  16. 16.

    FIFA describes its Congress as ‘football’s parliament’ in which each member has one vote ‘in the spirit of true democracy’: FIFA, FIFA Congress, FIFA.com, https://www.fifa.com/about-fifa/fifa-congress/all-you-need-to-know/index.html. See also: ‘FIFA’s Structure’, FIFA.com, https://www.fifa.com/governance/how-fifa-works/index.html; Infantino, FIFA President, quoted by Sam Borden, ‘Gianni Infantino blasts “fake news” as he defends “democratic” FIFA’, ESPN, 11 May 2017, http://www.espn.com/soccer/blog-fifa/story/3123708/gianni-infantino-blasts-fake-news-as-he-defends-democratic-fifa: ‘The new FIFA is a democracy, it is not a dictatorship’.

  17. 17.

    See notes 68-70 below and accompanying text.

  18. 18.

    In a form of governance structure common amongst sports, the only members of the voluntary association that is FIFA are the national governing bodies of football in each country: FIFA, Statutes, above n 5, art 11.

  19. 19.

    In particular, FIFA, Statutes, above n 5, art 15(j) which requires FIFA members to adopt representative democratic structures. See note 70 below and accompanying text.

  20. 20.

    To be clear, no objection is taken here at the intervention of FIFA in FFA. Such intervention to secure democratic reform is to be supported. The problem discussed here is the quality of the intervention, i.e. the intervention of FIFA did not promote representative democracy within FFA.

  21. 21.

    See authorities cited in notes 12 and 13 above.

  22. 22.

    See Freeburn, Regulating International Sport, above n 2, 173-4 and authorities cited there.

  23. 23.

    Some describe international sport as a public good: see Bourg and Gouguet (2007) chapter 82; Geeraert et al, above n 12, 284.

  24. 24.

    A CAS panel has drawn an analogy between the regulatory functions of sports governing bodies and governments: AEK Athens v UEFA CAS 98/200, award of 20 August 1988, Digest of CAS Awards II 1998-2000 (Kluwer, 2002) 38, [58]. See also Silance (1977), p. 618, 622. Courts apply public law principles to the supervision of sports governing bodies > see for example Bradley v Jockey Club [2004] EWHC 2164, [37] (Richards J).

  25. 25.

    Freeburn, Regulating International Sport, above n 2, 175.

  26. 26.

    Perhaps thereby explaining FIFA’s reliance upon it: see note 16 above. See also note 70 below and accompanying text.

  27. 27.

    Albeit indirectly, in that the ultra vires doctrine protects the liberty of citizens and requires any interference with individual liberty occasioned by the exercise of governmental power to be legitimised by being authorised: see Woolf et al. 2013) [1-016], and see [4-046] citing the reason for the extension of judicial review to bodies exercising public functions as being because ‘the courts recognise that it is important to the rule of law that the abuse of those powers be controlled irrespective of their source and that the nature of the control should be the same as the control of more conventional administrative powers conferred by statute’. See also Wade and Forsyth (2009) 4; Elliott 2001), p. 191, [4.2].

  28. 28.

    See Swiss Civil Code, 10 December 1907, Chapter 2, Associations, art 60-79 establishes the legal regime applying to associations under Swiss law. The default rules that apply in the absence of alternative provisions in an association’s articles of association (art 63) require associations to provide for equal voting rights amongst members (art 67(1)) and for majority approval of resolutions (art 67(2)). Further, no member can be forced to accept a change to the objects of the association against his or her will (art 74).

  29. 29.

    See, for example, in Australia, Associations Incorporation Reform Act 2012 (Vic), ss 13(2), 38(1); French Code du Sport, art L121-1 et seq. In France, to be eligible for state support, sports federations must be certified. One condition of certification is that the associations adopt by laws, guaranteeing that they function democratically, with transparency, and provide equal access to senior management positions for both men and women: French Code du Sport, art L121-1 et seq. See van Kleef (2014), p. 24, 28. See also Ted Stevens Olympic and Amateur Sports Act (Amateur Sports Act) (US) 36 US Code § 2205, which imposes democratic requirements on the governing bodies of amateur sports in the United States.

  30. 30.

    Serving as an example of the failure of traditional domestic and international law accountability mechanisms to have kept pace with the shift in regulatory authority and activity from the domestic to the global: Freeburn, Regulating International Sport, above n 2, 180. See also 43-4 citing Benedict Kingsbury, Nico Krisch, Richard B Stewart, 'The Emergence of Global Administrative Law' (2005) 68(3/4) Law and Contemporary Problems 15, 16; Cutler (2003), p. 242: The orthodox conceptions of the basis of regulatory authority in international sport ‘are incapable of capturing the significance of nonstate actors, informal normative structures, and private, economic power’, referring to the deficiencies of traditional Westphalian-inspired assumptions about power and authority and state-centric theories in supplying a satisfactory explanation of transnational merchant law. See also Paulus (2004) 25 Michigan Journal of International Law 1053: ‘As soon as public interests are at stake, only public decision-making appears legitimate’.

  31. 31.

    Arnout Geeraert et al. (2014), p. 281, 288; United Nations Educational, Scientific and Cultural Organization 'Mineps V Declaration of Berlin' (2013) <http://unesdoc.unesco.org/images/0022/002211/221114e.pdf>, [3.39]; Commission of the European Communities, 'White Paper on Sport', 11 July 2007, 4; European Commission, 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Developing the European Dimension in Sport' (18 January 2011 2011), 4.1; Sport England, UK Sport, ‘A Code for Sports Governance’, October 2016, 20, Requirement 5; Australian Sports Commission, ‘Sports Governance Principles’, March 2012, 1.

  32. 32.

    See note 16 above. See also note 70 below and accompanying text.

  33. 33.

    United Nations, Universal Declaration of Human Rights,1948, http://www.un.org/en/universal-declaration-human-rights/index.html, art 21(3). It is not suggested that the Universal Declaration creates legal obligations that FIFA must meet. The Declaration is referred to in order to describe the commonly accepted features of representative democracy.

  34. 34.

    See generally: Sorensen (2007).

  35. 35.

    On the regulatory nature of the powers of international sports federations, see Freeburn, Regulating International Sport, above n 2, 19–35, 54–63 and 103.

  36. 36.

    Universal Declaration of Human Rights, above n 33, art 21(1).

  37. 37.

    Ibid art 21(3). It would be premature to consider here the relevance of debates that are taking place about the form of democracy in Western liberal states, where, for example, questions have been raised about the democratic efficacy of elections in modern times: see Dunlop (2018). It is not elections that are the problem within FIFA but establishing universal and equal suffrage.

  38. 38.

    This does not mean that all groups must have an official elected to represent them, but that all groups must have the right to participate in the election of representatives. Excluding groups who are subjected to the rules of the governing body is the equivalent of ‘taxation without representation’, the slogan used by American colonists in the 1700s to reflect their protest at paying taxes to the British government to which they had no entitlement to elect representatives: see ‘Taxation without representation’, Dictionary.com, https://www.dictionary.com/browse/taxation-without-representation.

  39. 39.

    The almost systemic corruption in FIFA is well known: see, for example, Andrew Jennings, The Dirty Game (Century, 2015); Siciliano and Jamieson (2016). On the operation of democratic accountability in reducing corruption, see: Kolstad and Wiig (2016), p. 1198. See also Nightingale (2015): ‘There is a strong body of research that demonstrates an empirical link between democracy and reduced corruption’, although there are opposing views and the link is not conclusive. See also Jong-Sung and Khagram (2005), p. 136, 146; Heinrich, ‘Corruption and Inequality: How Populists Mislead People’, Transparency International, 25 January 2017, http://www.transparency.org/news/feature/corruption_and_inequality_how_populists_mislead_people; Rothstein (2011); Uslaner (2008); and Loveless and Whitefield (2011), p. 239.

  40. 40.

    The propensity of FIFA to establish stakeholder committees is as if FIFA has developed a ‘committee strategy’ in which it responds to the claims of stakeholders by establishing a committee, enabling it to be seen to take stakeholder’s claims seriously while at the same time avoiding making any change to FIFA’s existing power structures. On the isolation of stakeholders from real power, see: Houlihan (2004), p. 420, 421–2.

  41. 41.

    Ibid, art 2(c).

  42. 42.

    Ibid, art 2(d).

  43. 43.

    Ibid, art 6. FIFA member associations also treat players the same way: see, for example, Football Federation Australia, Constitution, 16 October 2018, art 4.

  44. 44.

    Ibid, art 8(1).

  45. 45.

    Ibid, art 8(3).

  46. 46.

    See Freeburn, above n 2, chapter 3.

  47. 47.

    FIFA, Statutes, above n 5, art 26(1).

  48. 48.

    See, for example, On-side Law, ‘Has democracy failed FIFA?’, On-side Law, 26 June 2015, https://www.onsidelaw.co.uk/has-democracy-failed-fifa/; Chi, ‘Democracy is at Root of FIFA’s Corruption’, 28 May 2015, http://www.thepostgame.com/blog/daily-take/201505/fifa-corruption-probe-sepp-blatter-justice-department-fbi; Marcuccitti, ‘The Problem with FIFA? Democracy’, InDaily, 23 February 2015; See also Becker, ‘The Democratic paradox in FIFA’, 23 February 2016, https://www.sdu.dk/en/nyheder/nyhedsarkiv/nyheder/arkiv_2016/februar/det+demokratiske+paradoks+i+fifa; Mungiu-Pippidi, ‘If FIFA were a country’, Open Democracy, 11 December 2015, https://www.opendemocracy.net/can-europe-make-it/alina-mungiu-pippidi/if-fifa-were-country.

  49. 49.

    See, for example, definition in Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/universal-suffrage.

  50. 50.

    FIFA, Statutes, above n 5, art 11(1). See also FIFA, Standard Statutes, above n 72, art 10, providing that the members of FIFA’s national association members are to include Clubs, Regional Associations, Leagues, Player Groups, referee’s groups, coaches’ groups and other categories to be specified by the particular association. Rather than provide stakeholders with a real voice in the governance of the sport, FIFA has established a Stakeholders Committee with no direct power: see FIFA, ‘Football Stakeholders’, 2017, https://www.fifa.com/development/news/y=2017/m=5/news=our-stakeholders-2886803.html; FIFA, ‘Football Stakeholders endorse landmark reforms of the transfer system’, 25 September 2018, https://www.fifa.com/governance/news/y=2018/m=9/news=football-stakeholders-endorse-landmark-reforms-of-the-transfer-system.html.

  51. 51.

    See, for example, FIFA, ‘Football Family gathers to grow’ together, 23 September 2018, https://www.fifa.com/worldcup/news/football-family-gathers-to-grow-together-2994427, referring to an international gathering of coaches and technical directors.

  52. 52.

    See note 70 above and accompanying text.

  53. 53.

    On this basis, the former apartheid regime of South Africa could qualify as a representative democracy.

  54. 54.

    It is the subjection to regulatory power that gives rise to claims for representation. Other types of relationship, for example, the employment relationship between FIFA and its employees, are not based on FIFA’s claim to general, regulatory power and would not be expected to lead to claims for democratic representation.

  55. 55.

    As broadly defined by FIFA, Statutes, above n 5, definitions, 13 ‘official’: ‘any board member (including the members of the Council), committee member, referee and assistant referee, coach, trainer and any other person responsible for technical, medical and administrative matters in FIFA, a confederation, a member association, a league or a club as well as all other persons obliged to comply with the FIFA Statutes (except players and intermediaries)’.

  56. 56.

    Ibid, definitions, 18.

  57. 57.

    Former FFA official Bonita Mersiades quoted by Jack Kerr, ‘FIFA pushes for Football Federation Australia reform’, The Saturday Paper, 24 September 2016. FIFA claims authority over spectators in its Disciplinary Code: see FIFA, FIFA Disciplinary Code, 9 May 2017, https://resources.fifa.com/image/upload/fifa-disciplinary-code-500276.pdf?cloudid=koyeb3cvhxnwy9yz4aa6, art 3(h).

  58. 58.

    It is not clear that it is necessary for FIFA to assert regulatory control over spectators in any event. The control of spectators does not qualify as a necessary component of the ‘requirement for consistent and uniform categorical rules and disciplinary processes to apply across a sport, regardless of geographic boundaries’: Freeburn, Regulating International Sport, above n 2, 31. Furthermore, spectators are liable to ready control through contractual stipulations as conditions of entry to venues and through club membership arrangements; regulatory control by FIFA appears unnecessary.

  59. 59.

    Verba (2001), https://www.russellsage.org/sites/all/files/u4/Verba.pdf, 2.

  60. 60.

    Ibid.

  61. 61.

    True political equality in which all ordinary citizens have an equal say over governmental decisions is regarded as impossible to attain even in normal democratic systems in which electorates are homogenous, i.e. individuals: Verba, above n 59, 5.

  62. 62.

    Rather than an ideal of substantive equality with each person having equal voice just as they have an equal vote, liberty (the right to participate) is the key form of political equality: See Verba, above n 59, 8, citing Mueller (1991). Cf Sen (1999) who argues that substantive equality is necessary. See also Phillips (1998); Dahl (2006).

  63. 63.

    Freeburn, Regulating International Sport, above n 2, chapter 8. Indeed, it is argued that such a convention is not necessary only to legitimise the regulator power of international federations but also to confer legality on the regulation of international sport: see 196-9. On issues of legality, see also chapters 2 and 5.

  64. 64.

    Ibid, 202-3.

  65. 65.

    Ibid, 201.

  66. 66.

    On the pyramidal governance structure of sports, see, for example, Lewis and Taylor (2014), [A3.5]-[A3.13]; James A R Nafziger, International Sports Law (Transnational Publishers, 2nd ed, 2004) 7, 18; European Commission, ‘The European Model of Sport’, Consultation Document of DG X, November 1998. See also: Weatherill (2005), p. 5.

  67. 67.

    Weatherill 2005, p. 5.

  68. 68.

    FIFA, Statutes, above n 5, art 11(1).

  69. 69.

    Ibid, art 15. Democratic accountability and requiring management to be accountable to a democratically determined body is a widely recognised principle of good governance for sports bodies: see for example United Nations Educational, Scientific and Cultural Organization 'Mineps V Declaration of Berlin' (2013) <http://unesdoc.unesco.org/images/0022/002211/221114e.pdf>, [3.39] and [3.42]; Commission of the European Communities, 'White Paper on Sport', 11 July 2007, 4 ‘The Organisation of Sport’; European Commission, 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Developing the European Dimension in Sport' (18 January 2011 2011), 4.1, principle 4(a), principle 4(e); IOC ‘Basic Universal Principles of Good Governance of the Olympic and Sports Movement’ Seminar of Autonomy of Olympic and Sport Movement’, 11–12 February 2008; Sport England, UK Sport, ‘A Code for Sports Governance’, October 2016, 20, Requirement 5.

  70. 70.

    Ibid, art 15(j). A similar requirement applies to FIFA’s continental Confederations: art 23(j). Of course, these bodies are not emanations of state power and are not ‘legislative’ in the strict sense. Nevertheless, the clear recognition of the quasi-legislative nature of the rule-making powers of these bodies is significant in the de facto, non-consensual, regulatory nature of the powers of FIFA and its members: see Freeburn, Regulating International Sport, above n 2, 25-8, 31-3, 54-5 and chapter 3.

  71. 71.

    See also: Federation International de Football Association, ‘Regulations Governing the Admission of Associations to FIFA’, https://resources.fifa.com/mm/document/tournament/competition/01/11/80/00/regulationsgoverningtheadmissionofassociationstofifa_efsd_neutral.pdf, reg 3(1)(c) requires applicants for membership of FIFA to submit ‘[d]ocuments that reveal that the applicant’s bodies are designated in independent elections’; Federation International de Football Association, Standard Electoral Code, 2007, https://resources.fifa.com/image/upload/standard-electoral-code-671785.pdf?cloudid=hmibzu4ifupjffao2gor, which establishes electoral procedures within FIFA members, and requires ‘democratic principles of segregation of powers, transparency and publicising of the electoral processes of the member association [to] be observed without exception’ (art 2). The requirement for FIFA members to be constituted taking into account gender equality is not being ignored here. The gender equality requirement is attached to the requirement for FIFA’s members to be constituted as representative democracies. If the representative democracy requirement is ignored, then there is no scope for gender equality to be addressed within democratically representative structures.

  72. 72.

    Bodies not democratically elected or appointed and any decisions of any such bodies will not be recognised by FIFA: FIFA, Statutes, above n 5, art 19(3) and (4). The confusion is perpetuated in FIFA, Standard Statutes, 2005, https://resources.fifa.com/mm/document/affederation/generic/51/44/76/169446-standardstatutes-edition2005_neutral.pdf: art 13(1)(b) requires the bodies of FIFA member associations to ensure that their decision-making bodies are elected. Art 19(6) appears to directly contradict this by specifying that the FIFA member association may either be elected or be appointed by the member association itself.

  73. 73.

    Ibid, art 19(1) and (2).

  74. 74.

    FIFA, Statutes, above n 5, art 14(1)(a). Each FIFA member is also required ‘to convene its supreme and legislative body at regular intervals, at least every two years’: art 14(1)(e).

  75. 75.

    Ibid, art 8(1).

  76. 76.

    Failure of a member to comply with its obligations may be sanctioned (ibid, art 14(2)) and lead to the suspension (art 16) or expulsion (art 17) of the member. Failure of others to comply may lead to sanctions under the FIFA Disciplinary Code: art 61: see FIFA, FIFA Disciplinary Code, 2017, https://resources.fifa.com/image/upload/fifa-disciplinary-code-500275.pdf?cloudid=koyeb3cvhxnwy9yz4aa6.

  77. 77.

    FIFA, Standard Statutes, above n 72.

  78. 78.

    Blatter and Valke (2010).

  79. 79.

    Kerr (2016).

  80. 80.

    See the introductory notes to Chapter A, Congress and which precede art 20: ‘As a general rule, every Member (or where applicable, each Member of the same category) shall have an equal number of delegates and votes’. The possibility for the member association to allocate voting entitlements to an additional category is allowed for: art 21(1). There is to be equality of voting entitlements as between the members of each category of elector: art 21(3). Players are to be regulated by the association notwithstanding that they are not members: art 4(2), 5, as are other bodies and officials: art 7.

  81. 81.

    FIFA, Standard Statutes, above n 72, art 10. These groups are to be recognised by and subordinate to the Association: art 17(1). Members have the right to take part in the Association’s Congress: art 12. Members of the Associations have the obligation to ‘ensure the election of its decision-making bodies’: art 13(1)(b). These subsidiary bodies are required to maintain and regularly update a register of their members: art 13(1)(k).

  82. 82.

    Ibid art 21(1)(a)-(c).

  83. 83.

    See Orwell (1945).

  84. 84.

    These other groups may be allocated voting rights but, unlike Clubs, Regional Associations and Leagues, this does not appear to be mandatory and appears to be at the discretion of the FIFA member association: art 21(1)(d).

  85. 85.

    See Buchanan and Keohane (2006), p. 405 and 414, regarding this problem of attenuation in global governance institutions.

  86. 86.

    This argument has been described elsewhere: see Freeburn, Regulating International Sport, above n 2, 36-7. In its practical application in football, see note 126 below and accompanying text.

  87. 87.

    A football club performs a vastly different role to and is not some form of proxy for a players’ union.

  88. 88.

    Indeed, FIFA implicitly concedes this in requiring that its members include all relevant stakeholders within their legislative bodies: FIFA, Statutes, above n 3, art 11(1).

  89. 89.

    See FIFA, ‘Regulations on the Status and Transfer of Players’, June 2018.

  90. 90.

    Roitman and Grosvernier, ‘Governance Structures at national Association Level 2018’, CIES Sports Intelligence, Fig. 2. The 20 FIFA National Federations examined were: Argentina, Australia, Brazil, Colombia, Costa Rica, England, France, Germany, India, Italy, Ivory Coast, Japan, Mexico, Morocco, New Zealand, Saudi Arabia, South Africa, Spain, Switzerland, and USA.

  91. 91.

    These three federations were Italy, Spain and USA.

  92. 92.

    Less than the number of federations that allocated voting rights to Futsal and/or Beach Soccer.

  93. 93.

    Eastham v Newcastle United Football Club Ltd [1964] Ch 413, 438.

  94. 94.

    Freeburn, above n 2, chapter 2.

  95. 95.

    This argument is to be distinguished from an argument based on the doctrine of consideration to the effect that there is no consideration provided by a sports governing body doing what it is under an existing obligation to do anyway.

  96. 96.

    Atiyah and Smith (2005), p. 28; Smith (2000), p. 107, 108. The voluntary nature of contractual obligations is largely undisturbed by the different theories of contract law: see Paterson et al. (2012), Chapter 1. See also Cooke (1936), p. 21, 21-2: ‘The common law basis of most of ordinary business life is its conduct by free contracts freely entered into between competing offers on one side and competing acceptances on the other. The principle lies behind the economic theory developed by Ricard, Mill, Jevons and Marshall and of the interactions of supply, demand, value and price just as it lay behind the jurisprudence of Bentham, Austin and Holland’.

  97. 97.

    See Atiyah (1979); Vekas (1986); Atiyah and Smith, above n 96, 28: ‘the law of contract might plausibly be defined as the law of “exchange” or the law of “market transactions”’; Samuel (2010), pp. 17–18. See also Furmston (2006), p. 37; See also Chitty and Beale (2012), [1-017]; Brownsword (2010), [1.1].

  98. 98.

    The idea that regulatory power in sport is exercised as part of an exchange of promises is demonstrably untenable: see Freeburn, above n 2, 55-8.

  99. 99.

    Ibid, 61.

  100. 100.

    See ibid, 63 : Non-members have not agreed to the application of the rules as a conditions of membership, they have had no input into the formation of the rules, there are no limitations on the rule-making body’s power to alter its own rules by reference to the interests of a non-member, nor may the non-member escape the application of the rules by resigning from membership.

  101. 101.

    See FIFA ‘Professional Football Player Contract Minimum Requirements’, FIFA Circular no. 1171, 24 November 2008, which requires players and clubs to comply with the FIFA ‘Statutes, Regulations including the Code of Ethics, and Decisions of FIFA, Confederation, the Member Association and, where applicable, the Professional League’ (clause 11.2) and which also includes an acknowledgement that these regulations ‘may change from time to time’: clause 11.3. This conception of the valid nature of an agreement to comply with rules as they may be varied from time to time appears to be the view adopted by the court in Doyle v White City Stadium Ltd [1935] 1 KB 110. See also Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 Lloyd’s Rep 570, 589, 592 and 594: London Metal Exchange entitled to change its rules so as to affect the rights of non-members (under contracts made with members) where they had agreed to be bound by its rules.

  102. 102.

    An analogy with contracts that are expressed to be subject to the law of a particular jurisdiction is imperfect here as, unlike the interpretation of a contract in accordance with the laws of a specified jurisdiction, a contract in sport that is subject to the rules and decisions of an international federation is not merely interpreted in accordance with those laws as they may be from time to time. The rules and decisions of an international sports federation prescribe the substantive terms of the contract.

  103. 103.

    See, for example, Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241, 285 (Santow J).

  104. 104.

    See Nagle v Feilden [1966] 2 QB 633, 652 (Salmon LJ).

  105. 105.

    Freeburn, above n 2, 69–81.

  106. 106.

    Ibid,113 (reference omitted).

  107. 107.

    These obstacles, including the real or constructive knowledge of sporting rules by participants, are discussed in Freeburn, ibid, chapter 4.

  108. 108.

    Mill (1859), p. 21–22; Locke, Two Treatises on Government, Hamilton, Ontario, McMaster University Archive of the History of Economic Thought, 2000, 106-8; Rawls (1971), p. 60; Rawls (2005), p. 36; Cormick (2007), p. 223; Dworkin (2000), pp. 281–284; Pilon (1993), pp. 510–511; Holmes (1993), p. 4. See also Dworkin (1993), pp. 167–168, 206; Macedo (1991), p. 231; Perry (2013), p. 64. See also Verheyden (2010), p. 27: ‘The notion of a given delegate having a certain scope of expertise or jurisdiction is a legal fiction, because in fact and in law the power to organize sports tournaments has always been held by the federations, outside of any State involvement’.

  109. 109.

    Former FFA Chairman Frank Lowy, addressing a meeting of A-League clubs (the clubs comprising the top tier of professional competition in Australia, including one team from New Zealand), quoted by Stensholt, ‘Frank Lowy passes to son Steven as he blows whistle on soccer’, Financial Review, 17 November 2015, https://www.afr.com/business/sport/frank-lowy-passes-to-son-steven-as-he-blows-whistle-on-soccer-20151112-gkxc7g.

  110. 110.

    Kerr, ‘FIFA pushes for Football Federation Australia reform’, The Saturday Paper, 24 September 2016.

  111. 111.

    FIFA, ‘Statement concerning Football Federation Australia’, 7 December 2017.

  112. 112.

    FIFA, ‘FIFA’s Bureau of the Council establishes Congress Review Working Group for Football Federation Australia’, 4 April 2019. Art 15(j) is the provision of the FIFA Statutes that imposes the requirement for representative democracy: see note 70 above. See also FIFA, ‘FIFA Statement of Congress Review Working Group (CRWG)’ 4 June 2018.

  113. 113.

    AAP, ‘Pressure is back on FFA after FIFA endorsed sweeping changes’, Fox Sports, 23 August 2018, https://www.foxsports.com.au/football/the-pressure-is-back-on-ffa-after-fifa-endorsed-sweeping-changes/news-story/9000971ac78d6aeb6518629dec50d073. On 30 September 2018, an agreement amongst the members of FFA on governance reforms was announced ‘Joint Statement by Football Federation Australia Congress Members & PFA’, 30 September 2018.

  114. 114.

    ‘Statement from the Board of Football Federation Australia’, Media Release, 2 October 2018. Acceptance of the reforms led to FFA President Steven Lowy not seeking re-election, ending his family’s 15-year control of Australian football (Steven Lowy was made FFA President in 2015, succeeding his father who served as President from 2003): see Guardian sport, ‘Football Federation Australia governance stoush resolved after two-year struggle’, The Guardian, 2 October 2018. The 8-2 vote was the minimum necessary to achieve the required 75% majority approval for constitutional reforms of the FFA.

  115. 115.

    The FFA President Steven Lowy and the FFA Board continued to lobby against the adoption of the proposed reforms, arguing that ‘the reforms would invest too much power in the professional side of the game at the expense of the grassroots and negatively affect the independence of the FFA Board’: Lynch, ‘Ahead of Tuesday’s vote, FFA breaks down objections to CRWG reforms, The Daily Football Show, 28 September 2018, https://dailyfootballshow.com/ahead-of-tuesday-vote-ffa-breaks-down-objections-to-crwg-reforms/. The FFA Board published a statement outlining its concerns: FFA, ‘Message from FFA Board to Australian Football Community—Information Statement to Members’, 28 February 2018, https://www.ffa.com.au/news/message-ffa-board-australian-football-community-information-statement-members. The Australian government, through Sport Australia, had also written to the members of FFA expressing a number of concerns about the proposed reforms: Sport Australia (formerly known as the Australian Sports Commission (ASC)) is the Australian government entity responsible for the allocation of Australian government funding for sport and the development of sport policy: see Sport Australia, ‘What is Sport Australia?’, https://www.sportaus.gov.au/sportaus/about. Sport Australia published a statement outlining its concerns: Sport Australia, ‘Comment on FFA governance reform’ 14 September 2018, https://www.sportaus.gov.au/media_centre/news/comment_on_ffa_governance_reform. The position of Sport Australia was relied upon by the FFA Board in its opposition to the proposed reforms. Disregarding this opposition, FIFA wrote to then FFA President Lowy expressing its expectation that the reforms would be adopted: AAP, ‘FIFA poised to intervene in Australian football governance war’, Fox Sports, 2 October 2018.

  116. 116.

    Football Federation Australia, Constitution, 16 October 2018, https://www.ffa.com.au/sites/ffa/files/2018-10/CON%2018-1016%20FFA%20Constitution%20-%2016%20October%202018%20-%20FINAL.pdf, Arts 6.1 and 10.1. If New Member is admitted, they are to be allocated two votes, although new A-League clubs are not allocated any new votes but are entitled to a proportionate share of the 28 votes collectively held by the A-League Clubs. The Women’s Football Council members are elected by the state/territory members, the A-League clubs and the player’s representative (3 each) with the 10th member determined by a Nominations Committee and affirmed by a majority of members: art 18.4.

  117. 117.

    Ibid, art 6.3(c)(i).

  118. 118.

    The governance structure of the FFA that existed prior to the 2018 FIFA inspired reforms was criticised as being ‘no less “stacked”’ than its predecessor, ‘it’s simply stacked another way’: former FFA official Bonita Mersiades, quoted by Kerr, ‘FIFA pushes for Football Federation Australia reform’, The Saturday Paper, 24 September 2016. The 2018 reforms do not avoid this criticism and represent merely another form of ‘stacking’.

  119. 119.

    The 10 Women’s Council members. In addition, FFA Constitution, above n 116, art 44 provides for a target of 40% men, 40% women and 20% either within FFA and other football bodies.

  120. 120.

    See: Football Federation Victoria Incorporated, Constitution, March 2016, http://www.footballfedvic.com.au/wp-content/uploads/2014/06/FFV-Constitution-March16.pdf; Football Federation New South Wales, Constitution, 31 March 2007, as amended to 1 December 2017, https://42f6uk1prw8cdcjbf1vj9lce-wpengine.netdna-ssl.com/wp-content/uploads/2017/12/Constitution-Football-NSW-As-at-1-December-2017.pdf; Football Queensland, Constitution, May 2016, http://footballqueensland.com.au/wp-content/uploads/2015/12/Football-Queensland-Constitution.pdf; Football Federation SA Incorporated, Constitution, 20 June 2012, https://www.ffsa.com.au/sites/ffsa/files/2018-08/FFSAConstitution2017.pdf; Football West, Constitution, as amended to 30 March 2017, http://footballwest.com.au/wp-content/uploads/2016/11/Football-West-Constitution-30-March-2017.pdf; ACT Football Federation Limited, Constitution, 27 March 2014, https://capitalfootball.com.au/wp-content/uploads/2017/03/CF-Constitution-March-2014.pdf; Football Federation Northern Territory Incorporated, Constitution, 14 March 2011, http://www.footballnt.com.au/365_docs/attachments/protarea/1310-503f161d.pdf; Football Federation Tasmania Limited, Constitution, October 2009, https://footballfedtas.com.au/wp-content/uploads/2017/02/FFT-Constitution.pdf. The Constitution of Northern NSW Football does not appear to be publicly available: see http://northernnswfootball.com.au/about-us.

  121. 121.

    FFA Constitution, above n 116, art 6.2(a).

  122. 122.

    The members of the clubs include the players in the teams organised by the club to take part in competitions sanctioned by the state/territory association or the FFA. Club members (or their parent or guardian) may vote in an election for any club officeholders. The area of the ACT Football Federation Limited is described as a zone, which is divided into ‘regions’, the equivalent of zones in other state/territory associations.

  123. 123.

    See, for example, above n 120: Football NSW Constitution, art 3.5(a); Football Queensland, Constitution, May 2016, art 3.6; ACT Football Federation Limited, Constitution, art 3.8 (‘Region Councils’).

  124. 124.

    See, for example, Football NSW Constitution, above n 120, art 3.7(a) which provides for: (i) a referees’ Standing Committee; (ii) a coaches’ Standing Committee; (iii) a women’s Standing Committee; (iv) a Futsal Standing Committee; (v) a Premier League Standing Committee; (vi) a Super League Standing Committee; (vii) a Division 1 league Standing Committee; (viii) a Conference league Standing Committee; and (ix) a junior’s Standing Committee.

  125. 125.

    The majority of votes preserved to the zone/zone council members varies between state/territory associations, e.g. 51% in Football Victoria, Football Federation Tasmania and Football Federation Northern Territory, but 76% in Football NSW and Football Federation SA Inc, Football West, ACT Football Federation Limited.

  126. 126.

    FFA Constitution, above n 116, art 10.1(b). This works out to be 6.11 votes.

  127. 127.

    This was a distinction drawn by the previous FFA Board and Sport Australia in claiming that the state/territory associations reflected the views of grassroots football: Football Federation Australia, ‘Board Information Statement and Recommendation to members, 28 September 2018; Sport Australia, ‘Comment on FFA governance reform’, 14 September 2018.

  128. 128.

    Leagues are intended to be subordinate to and recognised by FIFA’s member Statutes, above n 5, art 20(1). Competitions in Australia must be recognised by and subordinate to FFA: FFA, Constitution, above n 116, art 6.9(a).

  129. 129.

    Sport Australia, ‘Comment on FFA Governance Reform’, 14 September 2018. Sport Australia considered this voting allocation significant because 60% of votes is required to appoint directors: art 15.11 and 75% approval for a special resolution. Sport Australia described the influence of the ‘professional game’ at 41%. Presumably this includes the A-League clubs (28 votes), the Players’ Association (7 votes) and the 6 members of the Women’s Football Council who are able to be appointed by these bodies.

  130. 130.

    See Football Federation Australia, ‘Board Information Statement and Recommendation to members, 28 September 2018.

  131. 131.

    See Jack Kerr, above n 57.

  132. 132.

    Guardian sport, ‘Football Federation Australia governance stoush resolved after two-year struggle’, The Guardian, 2 October 2018.

  133. 133.

    The nine A-League clubs enjoy 28 votes.

  134. 134.

    See FFA Constitution, above n 116, art 44 making it an objective of the FFA that the FFA and the bodies of its stakeholders implement the 40/40/20 principle in which bodies are comprised of 40% men, 40% women and 20% either.

  135. 135.

    See note 116 above. This appears to have been the assumption of Sport Australia: see note 129 above and Sport Australia’s description of the professional side of football being allocated 41% of the votes within FFA.

  136. 136.

    See: AAP, ‘Steven Lowy defends route to succeeding his father as FFA Chairman’, The Guardian, 18 November 2015, https://www.theguardian.com/football/2015/nov/18/steven-lowy-defends-route-to-succeeding-his-father-as-ffa-chairman.

  137. 137.

    Sport Australia, ‘Comment on FFA governance reform’, 14 September 2018.

  138. 138.

    Sport Australia’s concerns about the committees appears unwarranted, given these bodies only have an advisory role, with no real power, making it impossible to maintain that the FFA Board would be ‘subservient’ to them. Although there would appear to be legitimate cause to be concerned about the establishment of an extraordinarily large number of committees within a relatively small organisation from a resources and efficient management perspective. The FFA has 14 Standing Committees and three other committees that are ‘judicial bodies’: see FFA Constitution, art 18.1.

  139. 139.

    Sport Australia, ‘Comment on FFA governance reform’, 14 September 2018.

  140. 140.

    Ibid. See also Steven Lowy quoted in Guardian sport, ‘Football Federation Australia governance stoush resolved after two-year struggle’, The Guardian, 2 October 2018: ‘Our game today has crossed a red line. From a corporate governance model for football to one where stakeholders with vested interests will compete for power and resources as opposed to these being decided by independent members of the board’.

  141. 141.

    And the membership of other Australian national sports governing bodies.

  142. 142.

    However, Sport Australia only appears to be concerned about the management of the FFA by an independent Board. By largely ignoring the more fundamental issue of the representativeness of the membership of FFA, Sport Australia’s insistence on a Board that is independent reflects an attempt to deal with the symptoms of the absence of representative democracy (sectional interests) whilst neglecting the cause of this problem. The problem in Sport Australia insisting on the independence of the Board, but not at the same time insisting on a properly representative membership body to whom the independent Board is to be accountable, is that this leads to a Board that is not only independent of any particular sectional interest, but one that is also detached from any effective accountability to the sport. While this may be a triumph of managerialism, it does not appear to be otherwise justifiable or reflective of a coherent policy position.

  143. 143.

    The view taken here is that it is unnecessary to recount the many examples of governance failures, malfeasance and illegality that have taken place within FIFA in recent years. Accounts of this are widely known and freely available.

  144. 144.

    Cf Onside Law, ‘Has democracy failed FIFA’, 16 June 2017, https://www.onsidelaw.co.uk/has-democracy-failed-fifa/: ‘FIFA operates democracy in its purest form, one nation one vote’; Marianne Lie Becker, ‘The democratic paradox in FIFA’, SDU, 23 February 2016, https://www.sdu.dk/en/aktuelt/nyhedsarkiv/nyheder/arkiv_2016/februar/det+demokratiske+paradoks+i+fifa.

  145. 145.

    See Freeburn, above n 2, chapter 7.

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Freeburn, L. The fiction of democracy in FIFA’s governance of football and the case of Football Federation Australia. Int Sports Law J 19, 184–204 (2019). https://doi.org/10.1007/s40318-019-00150-x

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Keywords

  • Football
  • Governance
  • Democracy
  • Legitimacy
  • FIFA
  • International federations