The world of sport is regulated by private regulations which, in general, establish a hierarchy dominated by international governing bodies. This structure, as revealed by a recent European ruling, can lead to an environment in which circumstances not covered by the law are generated; in which case, this only raises certain questions about the need to intervene in the sporting sphere as a result of alleged systemic corruption.

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The sporting sphere under the microscope of legality: an analysis of sports organisations and the "Super League".

The organization of the world of sports is a mixture that is made up of a multitude of regulations. It is true that, in this field, it is notorious to point out that there is a submission to the international sports bodies by the national institutions. In this respect, it is very frequent that, as a consequence of the existence of a sports associationism and of a natural “power” conferred by such a situation, the true purpose of institutions of this nature ends up being distorted. It would therefore be interesting to ask ourselves the following questions: is there corruption in the sports world, does the International Olympic Committee (IOC) tend to bow to the pressures of the various lobbies, do the sports federations abuse their position, etc.?

As is well known, not long ago, the Court of Justice of the European Union (CJEU) in its recent judgment of December 21, 2023, considered that in the beautiful game, in application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), there was a clear position of dominance on the part of the  International Federation of Football Association (FIFA) and the Union of European Football Associations (UEFA).

While it is true that the European Court did not question the existence of this position of power, but rather that, under the protection of the same and the content reflected in the sports statutes and regulations, they would take advantage of it and require a “prior authorization” from a third company to access a market that is regulated by themselves. Furthermore, in the event of accessing “their” own market without such prior consent, in accordance with the “divine” power they hold, they would issue the corresponding sporting sanctions with all that this may entail (e.g., sanctions to players, exclusion from tournaments, etc.); therefore, the latter was interpreted as a violation of Competition Law from the perspective of European Union Law.

In this regard, I would like to make a reflection, because, perhaps, as a consequence of this “monopoly”, not only on the part of FIFA or UEFA, but of all sports institutions and bodies at a supra-state level –extrapolated analogously as if it were the “philosopher's stone”–, such institutions are in a structural and hierarchical pyramid where, often, prevarication, manipulation and bribes are easier and have a lower level of protection than in other areas of society. In other words, in the light of the above, it could be questioned whether an intervention at the highest level is necessary as a consequence of a more than presumed and presumable endemic corruption in the sphere of sport.

Several cases of corruption have affected the world of sport, from the Nagano Olympic Games in 1998 (bribes and gifts) to the recent investigation of the Parisian venue for the 2024 Olympic Games (illegal awards and diversion of capital). This does not only occur in the Olympic sphere, but also in the sphere of national and international federations (diversion of FIFA funds, sale of FIBA audiovisual rights, operation “Oikos”, etc.).

It is true that, from the IOC's point of view, it has always tried to curb all situations of corruption that are circumscribed to its activity, either directly or indirectly, and, to this end, it not only uses the creation of numerous bodies such as ethics commissions, units for the prevention of manipulation of competitions, etc. It also relies on various international institutions to combat this scourge: the Council of Europe, the International Criminal Police Organization (INTERPOL), the United Nations Office on Drugs and Crime (UNODC), the International Partnership Against Corruption in Sport (IPACS), as well as the Organization for Economic Cooperation and Development (OECD).

Now, from the perspective of sports corruption, what would happen with the responsibility of the aforementioned institutions, when people who are part of their own structure are the ones who commit the illicit act?

In view of this, it would be necessary to highlight the importance of the Olympic Charter; since, in application of these regulations and in the event of a violation thereof, the bodies authorized to apply any sanction would be “the Session, the IOC Executive Board or the Disciplinary Commission” [e.g., warnings, suspensions, etc. (art. 59 Olympic Charter 2023)]. However, this does not preclude that in the event that such behavior could be classified as a crime –according to the legislation of the State where the action took place–, would have some kind of civil or criminal liability.

On the other hand, although in the same order of ideas and closely related to the question posed, after the reform of the Swiss Criminal Code in 2016 –prior to this date, corruption of private corporations had no place in such normative text–, it established that it would be “punished with imprisonment of up to three years or a fine whoever, as an employee, partner, agent or other auxiliary of a third party in the private sector, demands, obtains a promise or accepts an undue advantage for himself or for a third party for the purpose of committing an act or omission in connection with his service or business activity and contrary to his official duties or underlying his power of appreciation” (art. 322 novies Swiss Criminal Code).

Likewise, the IOC, as well as any other sports entity of the above mentioned –FIFA/FIBA–, could be liable for a crime in the event that it is proven that, by the action or omission of its employees and/or by the lack of supervision, it had not activated all the necessary mechanisms to avoid such offence –Compliance–. Furthermore, as a consequence of the location of its headquarters (Switzerland), in the event that a crime is committed by any of its officers, the Swiss authorities could initiate an investigation in this regard.

In this regard, the Swiss Criminal Code provides that, “if a crime or offense is committed in a company, in the exercise of business activities consistent with the object of the company, which, for lack of internal organization, cannot be attributed to a specific natural person, the crime or offense shall be attributed to the company. In this case, the company will be punished with a fine of up to five million francs”. Likewise, “in the case of an offense under Articles 260 ter, 260 quinquies, 305 bis, 322 ter, 322 quinquies, 322 septies paragraph 1º or 322 octies, the enterprise shall be punished independently of the punishability of the natural persons if it can be accused of not having taken all reasonable and indispensable organizational measures to prevent such offense” (art. 102 Swiss Criminal Code).

Conclusion

Having said the above, I could not conclude this dissertation without qualifying that sports corruption is a scourge that must be eradicated; however, such behaviors cannot be generalized. Moreover, as is well known and in relation to the above, the different institutions and sporting bodies usually take measures to avoid such actions that are not included and penalized by the Olympic Charter and other sporting regulations. On the other hand, in relation to the existing monopoly of such organizations, I would like to reflect on the real power of the spectators and passive actors of this world; given that the possibility of changing the status quo of such institutions is the exclusive responsibility of the fans and lovers of the commonly called “sport-show”.