Monday, 10 November 2014

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

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:
EarGate and

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.

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.


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.

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.

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?).


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.

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

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