It is often said that sport is a mirror which reflects the society in which it operates. Many of the most troubling issues for sports regulators: drugs, corruption, gambling, racism, gender equality, new technologies and workplace health and safety, are equally problematic for society at large. But sport also reflects back on society, and how sport manages these issues holds lessons for how others might tackle similar problems. These include lessons on how different regulatory tools can be combined to tackle complex matters; on how government regulators, business and community organisations can work together in partnership to achieve common goals; and on the need for regulation to be dynamic — to evolve with changes in the social, economic and competitive environment.
In the world of sport, government is not the sole or even main locus of regulatory activity. Rather, sport regulation increasingly is undertaken by expert regulatory agencies, business (sport today is big business, and sport governing bodies are large commercial concerns) and civil society across multiple sites — local, national and international.
It is also a world in which these factors cooperate and combine to produce novel and innovative regulatory techniques. Sport regulation today encompasses a broad variety of regulatory tools — coercive and voluntary; public and private; national and international.
An example of this is the Federal Government’s comprehensive sport integrity regulatory strategy – Safeguarding the Integrity of Sport. Delivered in response to the 2018 Review of Australia’s Sports Integrity Arrangements, the strategy has four key pillars.
First, the anti-doping regime. Its rules are established globally by the World Anti-Doping Agency, itself a creation of the International Olympic Committee, and imposed on athletes and others contractually (that is, voluntarily and privately). However, its effective implementation relies heavily upon the hard coercive power of the state in the form of anti-doping legislation and a specialised national anti-doping agency Sport Integrity Australia, (formerly the Australian Sports Anti-Doping Authority) to conduct testing and investigate suspected breaches.
Second, there is regulation to counter match fixing and other corrupt behaviour. Central to these efforts are laws that regulate gambling on sport. State and territory gambling laws require gambling operators to have the approval of, and to enter into information sharing agreements with, the governing bodies of the sporting events on which they propose to take bets. These gambling laws also authorise the sport’s governing body to levy a fee for its approval. The information sharing and revenue supports the sport’s integrity processes, thus effectively co-opting sport governing bodies as co-regulators of gambling on the sports they administer.
Third is the creation of a new national body to resolve sporting disputes. Globally, the IOC created the Court of Arbitration for Sport (CAS) to adjudicate disputes arising under sporting contracts. In Australia, the Commonwealth government established the National Sports Tribunal in March 2020 to resolve sporting disputes within Australia. The jurisdiction to hear disputes is contractual, but their resolution is facilitated by the state — directly in the case of the National Sports Tribunal, and indirectly in the case of CAS — by national laws that recognise and enforce its awards.
And fourth is the establishment of Sport Integrity Australia to cohesively draw together and develop existing sports integrity capabilities, knowledge and expertise, and to nationally coordinate all elements of the sports integrity regulatory strategy, including education and prevention, monitoring and detection, and investigation and enforcement.
These are examples of governments and sports working in partnership. However, there are also a number of areas where sport has sought to exclude government regulation. For example, sport’s culture of risk, and perceptions that sport is not work and the sportsground is not a workplace, have combined to produce a field of activity into which work health and safety regulators are reluctant to enter, and workers’ compensation legislation does not apply.
Sport governing bodies also have convinced governments to exclude them from anti-discrimination laws. Sports are able to discriminate based on age, disability, sex and gender identity, in certain circumstances.
Conclusion
All of this makes for a rich regulatory tapestry. It also raises the question of lessons for other forms of regulation from the regulation of sport. On the one hand, we can point to issues such as the proliferation of gambling on sport, the increasing level of concussion injuries, and the disputed place of transgender women in many sports, as evidence of regulatory failure. Taking a more positive view, we can point to sport regulation’s agility, its creative mix-and-match of regulatory tools, and its capacity to create and leverage partnerships between government, business and civil society, as relevant and useful models for regulators in many different fields.
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Dr Eric Windholz is a Senior Lecturer and Associate with the Monash Centre for Commercial Law and Regulatory Studies. Eric’s research explores how regulation, public policy and the law intersect in important social and economic domains including the environment, sport, consumer protection, occupational health and safety and disability services.
Further reading
Anti-doping / Drugs
Organised Crime and Drugs in Sport, Australian Crime Commission (February 2013)
Gambling / Match fixing
Review of the Interactive Gambling Act 2001 – Final Report 2012, Department of Broadband, Communications and the Digital Economy (September 2012).
Cheating at Gambling: Report No. 130, New South Wales Law Reform Commission, (August 2011).
Review of Illegal Offshore Wagering: Report to the Ministers for Social Services and the Minister for Communication and the Arts by Lead Reviewer, the Hon. Barry O’Farrell (December 2015).
National consumer protection framework for online wagering: baseline study – final report (November 2019
Transgender Athletes
Guidelines for the inclusion of transgender and gender diverse people in sport, Australian Human Rights Commission (June 2019).