Cheating - what sports scandals can tell us about rules in sport and more widely

Speaking to the Guardian Mario Andretti, said:

Formula One should loosen up a bit. I think they’ve gone slightly overboard with the technical side of the engine. And we saw in Sochi, teams backing off for fuel reasons, just to make it to the end

and,

There are ways of using a little bit of creativity to enhance and increase the interest. It’s all there for the taking. It’s just a question of looking at some of the stranger rules they have in F1.

I can’t claim to know exactly what he meant and the rest of the article suggests that some of it is off-track issues around marketing and use of social media but guess some of it surrounds the technical and safety issues that may have reduced some of the chance and danger in the sport.  In a rather more admiring way (of Lewis Hamilton) Stirling Moss says:

The cars are that reliable these days, therefore one can judge a man by his talent - his enormous talent. He's exciting to watch.

Hamilton may be exciting but the motor-racing is not (now is not the time to argue my green objections to it) and both Andretti and Bernie Eccleston (I may tackle the issue of his governance of the sport at another time) are grappling with that.  Andretti clearly thinks some changes to the rules are required.

As a criminologist I’m interested in rules though these are often framed as laws, sanctions, regulations, norms or even censures (hat tip to Colin Sumner) and their breaches known as crimes, infractions, deviance etc.  So now we turn to cheating, fouling etc.

I’ve been trying to write about the subject of in-sport, on-field ‘crime’, ‘deviance’, which I see as central to Sports Criminology when I came across this article ‘Cheating in sport: is increased regulation the answer?’ in Sport and Law Journal Volume 21 (2).  It is particularly useful as the majority of the examples she gives were know to me and on my hitlist.

What follows takes Naidoo’s structure and subjects her analysis to a critical engagement. Despite being an ex sports administrator, CEO of the International Netball Federation*, Naidoo recognises the difficulty of simply regulating more, or attempting to do so.  However, I believe she is prone to some naivety in her reference to ethical issues.  After this intro/standfirst the next paragraph says:

The IOC Code of Ethics lays down the principles that “fairness and fair play are central elements of sports competition. Fair Play is the Spirit of Sport and the values of respect and friendship shall be promoted.”

I think I play fair in my sport and think that many others do too but for sceptico-cynical reasons I hold professional sports people to lower standards.  I don’t expect them to be ‘role models’.  They are sports workers and sometimes celebrities.  They may ‘justify’ or ‘neutralise’ (Sykes and Matza have that covered and Kevin Young cites them in Sport, Violence and Society) but the competitiveness of sportspeople and the structural pressures of media and owners render them little agency save in choice of tattoo.  They are in a business with a star economy and limited narratives.  I expect to be entertained, to enjoy the spectacle, for them to be the circus while I scrabble for bread.

I may come back to Naidoo’s introduction and wider discussion but let’s turn now to the case she cites:

BadmintonGate

BountyGate

BloodGate

CrashGate

EarGate and

SkateGate

BadmintonGate

Googling the term brings up the story but also - and close to my own intentions of using sport to illustrate wider issues and vice versa - this blog which argues:

Sport, like law, is an intensely rule-bound activity. It wouldn’t work without clear interpretation and rigid adherence to the rules. These eight players played within the rules, but were nonetheless censured for subverting the game by not playing by its spirit. It seems to me the same could be said of tax avoidance. Interestingly, the Players' Code of Conduct of the Badminton World Federation even has a kind of catch-all anti-avoidance regulation! The disqualified players were censured for "not using one’s best efforts to win a match" and "conducting oneself in a manner that is clearly abusive or detrimental to the sport" – arguably the badminton equivalent of the proposed General Anti-Abuse tax Rule that the UK is mulling over this autumn.

Pleasingly for a sociological criminologist the Guardian article cites Lin Dan, world No1, blaming the organisers for setting up a playing schedule that opened the door to manipulation:

Whenever they set the rules they should take that situation into consideration," he said. "I don't understand why there is a group situation [rather than a straight knockout competition].

Naidoo notes a number of past and contemporary examples of ‘not trying’ from cycling and women’s football and a case of ‘cheating’ in the swimming (Von Burgh 100m breaststroke undetected by officials for want of underwater technology) which involved trying and winning.

BountyGate

I had not known about this case of the NFL New Orleans Saints Pay-to-Injure ‘Bounty’.  Naidoo’s description of the events concentrates almost exclusively on the bounty, which would have breached the NFL’s strict salary cap, the fallout and governance failures.  As she says:

the NFL had no clear process in place to handle this sort of allegation as it could have been dealt with as a breach of the salary cap or it could have been dealt with as an on field breach of the rules.

And,

the farce around how the players were disciplined and the flawed governance process actually became a bigger story than the cheating.

‘Cheating’!  The events she describes involving over 20 players, coaches and manager suggest a conspiracy to commit grievous bodily harm on the face of it.  The only harm appears to have been to the reputation of the game not the players (though see ‘progress’ on the NFL concussion issue).  Just about anything other than the targeted players appears to be her or the NFL’s concern:

The Bountygate case publicly played out the very interesting conflicts involving due process rights of individuals, collective bargaining agreements, and private disciplinary procedures against the highly visible tapestry of professional sports. The federal judge who heard the case questioned the fairness of the process, but chose not to rule in part because it was unclear if she had the power to do so.

I incline to the arguments of Paul Tagliabue as reported by Time the former NFL commissioner appointed to hear the appeals about the use of discretion and not being over punitive but again it is interesting that no thought is given to the victims but to the politics and processes of the NFL.

BloodGate

When I played rugby no substitutes were allowed, only replacements and then only for medical reasons and at our level effectively there’d be no available replacement.  Indeed we played a full fixture list of friendlies and might even lend each other players.  Injuries to a front row forward - I was a prop, then hooker  - inevitably led flankers being shoe-horned in.  Non-Specialist front rows are not allowed now and substitutions are.  In 2009 in a cup quarter final Harlequins were narrowly losing to Leinster and had used all their players and had no specialist kicker on field.  With 5 minutes to go they wanted one on.  Tom Williams, their last substitute, came on armed with a fake blood capsule (and not the first occasion when a ‘Quins player had done so) and with the collusion of the physio and club doctor faked the injury that allowed the specialist kicker on.

The team still lost, were fined and the player, coach and medics were all punished.  Naidioo makes something of the different punishments - all appealed - but nothing of the reasons for the ‘conspiracy’.  In American Football offence and defence and specialist teams come on and off at the dictates of the play and the Coach’s strategy.  In Basketball and Ice Hockey rolling substitutions occur.  In Rugby Union the numbers of substitutions depends on the level being played and the player substituted has to stay on unless replaced for blood or front-row reasons whereas in Rugby League the squad of 17 players can be interchanged up to ten times.

So, to return to the question Naidoo’ poses, Rugby Union could prevent faking incidents, not by greater regulation but through regulating differently like other sports - decriminalising if you like.

CrashGate

As Naidoo baldly states, ‘Nelson Piquet Junior crashed into a wall during the Singapore Grand Prix in 2008 to allow his teammate Fernando Alonso to win the race.’ before discussing the potential and repetitional dangers involved.  The absence of ‘team orders’ in the current Mercedes F1 team means that Lewis Hamilton and Nico Rosberg are contending wheel to wheel which may too have its dangers.  More recently the manner of Mo Farah’s victory in the Great North Run has been called into question.  Was he paced and then allowed to win by his fellow PACE Sports Management athlete, Mike Kigan?  If so they should practice more as I was disappointed by the spectacle (GatesheadGate?).

EarGate

Actually Naidoo runs out of ‘gates’ and calls this section ‘Mike Tyson – Evander Holyfield’, describing how in their 1997 fight Tyson bit off a part of Holyfield’s ear.  They are apparently reconciled and Holyfield declined to press criminal charges at the time.  Naidoo opined Tyson:

would clearly have been guilty of a criminal assault as the action was intentional and it was not within the rules and the wound inflicted could have been described as serious.

SkateGate

Again, fresh out of gates, she prosaically opts for ‘Tonya Harding’ as her heading to describe the off rink assault on her rival Nancy Kerrigan that Harding and her husband arranged.  Kerrigan recovered and won silver at the 1994 winter Olympics. Harding went to law overturn a US Olympics and Skating ban but came eighth and was eventually banned from skating for life.  It is interesting that Naidoo calls this ‘cheating’.  It is not clear whether the scare quotes shows she knows it is not cheating in the sense that it occurred outside the sport or to minimise the clear criminality.  And you have to look elsewhere for the Harding’s ongoing denial/minimisation and criminal justice punishment: three years probation, 500 hours of community service and a $160,000 fine for hindering the investigation.

Cheating lawyers

After outlining these various ‘gates she asks why people cheat and, appropriately for her audience,  ‘what is the role of the sports lawyer’.  Pretty much all of criminology is dedicated to asking whey people cheat or don’t though it’s not usually put that way.  And clearly one use for a sports lawyer is defend your ‘cheating’.

On cheating she speculates about:

desire to win;

financial rewards and 

Tysonian ‘sport rage’

Both the sociology of sport and criminology could provide more and back up her synopsis of Rowbottom on the difficulty of:

attempting to identify a dividing line between gamesmanship, mental intimidation, the manipulation of rules and out-and-out dishonesty, 

and that:

every game has an unwritten etiquette alongside its formal rules, and what is acceptable in one sport is taboo in another. For instance, while in rugby the odd punch-up has traditionally been regarded as part of the fun, tripping an opponent is deemed disgusting.

Similarly in Ice Hockey a fight is great and acceptable and even expected as part of the match but using your stick to hit someone is definitely abhorrent.

Few criminologists would disagree with her conclusion where she quotes Max Duthie**, ‘Regulations alone won’t combat cheating’

but many might baulk at: 

… the relevant sporting authorities need to have the necessary will to enforce them. Federations and governing bodies have to be prepared to investigate and prosecute suspected wrongdoing, even if it means some short term pain, like loss of sponsors or star teams/players being suspended or withdrawn.

and not have the faith she places in ethics reemphasised in her conclusion in respect of the lack of ‘Sports Culture’ these cases showed.  Less and more rational rules might make the 'getting tough' easier too.

As a critical sociological criminologist I incline to the belief that neo-liberal capitalism supplies the sport we ‘deserve’ and that ancient greeks nor the ‘blazers’, and now the ‘suits’, seem likely to save us from the cheats - which include ourselves - any time soon.  Best solution participate in own low-level sport for fitness and don’t watch high level sport for anything other than spectacle.

* Noting only in a footnote ‘Writing in a personal capacity and not on behalf of current employer the University of Warwick. Previous employment: 2002 Salt Lake Olympic and Paralympic Winter Games; the International Cricket Council and the International Netball Federation. Co-author of 4th edition of Sports Law, Gardiner et al. Currently sits on Disciplinary Panels of Badminton England and England Netball and the FIH Judicial Commission.

** A partner in the sports group at Bird & Bird LLP. He prosecuted the misconduct complaints against Harlequins and others in the ‘bloodgate’ case and advises ERC, Six Nations, the International Cricket Council, World Snooker and others on their respective regulations and disciplinary procedures

Dumb sports law

Along with ‘Dumb Criminals’ ‘Dumb Laws’ are an internet staple.  I do not know the source for these Daily Telegraph ones but suspect some are wrong or misunderstandings and am confident that some of these are definitely wrong.

So let’s add some Dumb Sport’s Law to the mix.  Sport is often accused of being behind the curve - and never likely to catch up - on doping.  As a criminologist I’m inclined to a harm reduction perspective on drugs in society so would be for sport too.

Claiming a harm reduction motive as well as seeking to prevent performance enhancement WADA are now seeking to get in front of the curve by banning the gases xenon and argon.  As the BBC news website points out in its headline, this despite having no test for the gases!  Obviously outside of sport we’ve had subjective tests for sobriety but these have been replaced by accurate measures of alcohol in breath or blood - not same thing, as drunk drivers argue.

The BBC article points out that some doubt the benefits. They quote Dr Ben Koh who notes they are not banning the use of hypoxic tents and suggests the gases may be safer.  Moreover, Dr Chris Cooper suggests any benefit may not work in the way WADA suggest.  However, Russian medicine seems very keen on the benefits and the BBC noted the approval then of the Russian Olympic committee.

Also as a relativist, sceptic and low level athlete I incline to the view that if you take vitamins or pray because you believe it will help your performance then you are attempting to cheat.  Athletes try all the latest training methods, supplements etc.  Some are legal, some are illegal and some are legal but become illegal and less often vice versa.

If WADA could throw its weight behind proving the inefficacy of vitamins or banning them for efficacy that might be interesting.  And a test for the power of prayer?

no word yet on Krypton.

How do we get men to talk about rape? Might the issue of consent in sport be a way in?

For very good campaigning reasons many feminists argue that ‘rape is rape’.  Despite being a supporter of feminism, I cannot, as a criminologist, accept that any crime is exactly the same as any other crime.  Moreover, I understand, and am uncomfortable with, arguments like MacKinnon’s (Feminism Unmodified ) that under the patriarchy all heterosex is non-consensual.  Here I want to illustrate differences in crimes and attitudes to them through a discussion of assault by men on other men; mostly in sport.

The link is the tricky one of consent, where sports law texts find themselves quoting the Spanner case (R v Brown) which involved sado-maschistic practices. That case necessarily has much discussion of boxing and fights in the street in seeking to discuss consent before finding against the men.  Reflecting on the case Carol Smart compared consent in rape and homosexual acts noting that women’s ‘no’ is taken for ‘yes’ and homosexual men’s ‘yes’ for ‘no’.

But to sporting consent.  This post is inspired by the recent case of Ben Flowers and a reminder from Christopher Matthews of the violence in Ice Hockey which reminded me of the violence of professional wrestling which Corteen and Corteen cover.  I rely on Matt Rogers for the facts and some of the law and can recommend his extensive analysis of ‘implied sporting consent’. 

Flowers received a six month ban from Rugby League Football (RFL) at the hands of the its match-review panel.  It represents potentially missing 13 games and is the most severe option open to the panel.  Interestingly the Sky sport website offers a feedback poll on the question. 

This is how matters stood on 3 November 2014. 

More interestingly the question might have been should his actions have been subject to police action - perhaps, there and then.  It would seem that Greater Manchester Police propose not to disturb the RFL’s jurisdiction but are investigating threats of summary informal justice on social media against Flowers.

As a one-time Rugby Union player, and more occasional informal soccer player, and largely TV viewer I’m aware of the cultures of such sports.  I believe I’ve received more violence than given in my sporting career but make no claims to sainthood.  The odd kick in the face is the price of entry for an open water swim triathlon.  I’ve received some and must have unintentionally given some.

We might construct a continuum of consensual violence for different sports with Ice Hockey and Professional Wrestling at one end where illegal moves - often punches - are expected and tennis or golf at the other end.  Indeed the crowd would be disappointed if violence did not occur at Ice Hockey or Pro Wrestling.  In boxing structured violence is de rigur but hitting below the belt, mauling or fighting at the weigh in (think Haye v Chisora in what the BBC call a ‘brawl’) is penalised as is ‘not trying’ British Board of Boxing Control rule 3.38 (g).

The audience for boxing goes for the formal violence of the sport but may be happy to see some additional informal violence, may even participate in some (on behalf of their man).  Rugby and football crowds often enjoy a little ‘handbags’ (the feminised disavowal of the violence is interesting). Ed Smith suggests that wider society has fallen out of love with boxing as we have become less tolerant of violence (an Elisian thought?).  He muses on whether American football might decline in popularity because of on- and off- pitch violence.  Perhaps we might ask the same of Ice Hockey and Pro Wrestling and has a distaste for cheats - the simulation of fouls etc - reduced the popularity of soccer?

The shadow of simulation (and an implicit censure of soccer?) fell over Rugby Union recently in the suggestion that recent interpretations by officials of violent incidents would lead to diving.  As the Mail Online Headline has it:

RFU laws offer open invitation to game's divers as rugby is in danger of introducing football-style 'simulation' to con officials

Blair Gowan of London Irish is said to have punched Leicester Tiger’s Jamie Gibson in the face but received no yellow card.  Leicester’s complaint to the RFU was met with the answer that the player had not gone to the floor or needed treatment and that the penalty awarded was sufficient punishment.  The concern is that, knowing this rugby players will go to ground and pretend to be hurt (and here is a Samoan player attempting to do just that).  Note that for Rugby Union and in the  Ben Flowers’ case a punch is not a punch but in soccer it would be irrespective of effect.  And on the street it would be too.

Glenn Hoddle made exactly such a point in discussing Luis Suarez’s dental incontinence.  He suggested prison.  Clearly biting is beyond any implied consent and is seen to be unmanly, even childish.  This reminds us that in addition to the law of the land, the code of the game there are gender codes at work too.

The London Irish captain’s take on the punch was:

It’s rugby. If you pull up every incident like that and make a thing about it the game is going to go soft.

Soccer seems to have survived the ‘softness’ of banning hacking in 1863.

But to turn to Sport and Rape we might find MacKinnon in Ched Evans’s corner when she notes:  

Since rape is difficult to talk about, but men need to talk about it perhaps discussion of consent in sport might be a way in.  Just as a rapist may feel he was doing what any man would do so the on-pitch punch thrower may feel he too is only doing what any man might do.  Indeed he may have been the victim of punches in the past, including the immediately preceding past.

I am not so naive to imagine that by changing the way we talk about things will change matters but perhaps the sports authorities and media might use terms like victim and offender in these circumstances.  Should sport point out to players explicitly the issue of consent before each match?

Stepping on to the pitch does not mean you consent to being punched.  Stepping out does not mean you consent to rape and harassment - see Shoshana Roberts.