The 2023-2024 season and beyond: What can sport learn from recent failings?

Between 2021-2023, a number of high profile inquiries examined the conduct and culture of different sports, including football, gymnastics and cricket. As one review noted, “[s]port should be a positive and safe experience, regardless of age and ability. It should not involve conduct or practices that cause emotional or sexual harm. It should not cause physical harm beyond unavoidable hazards. Keeping participants safe requires everyone engaging in sport to maintain appropriate standards of behaviour. Where there are concerns that standards of behaviour have been breached, individuals should feel able to make disclosures to this effect […] and [their] concerns taken seriously and managed fairly.”  

Despite these observations, common failings were detailed in all three subsequent reports, including discrimination, poor standards of safeguarding, and lack of clear and effective governance. Individually and collectively, these failings ensure a detrimental experience for many players and fans of sports: young, vulnerable players are treated unfairly and the lack of governance means that both fans’ and players’ interests are not prioritised. Whilst some of the recommendations made are specific to the particular sport under inquiry, a number have wider application and should not be overlooked by other sports.

This article, the latest in our regulation and investigations series, considers the background to these issues and what proactive steps organisations can take to improve. 

What happened in cricket?

“[E]vidence shows that elitism alongside deeply rooted and widespread forms of structural and institutional racism, sexism and class-based discrimination continue to exist across [cricket in England and Wales].” 

Holding Up A Mirror To Cricket, June 2023 

On 27 June 2023, the Independent Commission for Equity in Cricket (the ICEC) published its report Holding Up A Mirror To Cricket (the Cricket Report). The ICEC’s findings were “wide-ranging” and “unmistakable”: it made clear that “deeply rooted and widespread forms of structural and institutional racism continue to exist across the game.”

Examining the history of cricket in detail, the ICEC pointed to the “struggles” of inequality “dating from the age of the British slave trade and imperialism but resonating far beyond, into the postcolonial age”, making clear that the sport’s history continues to perpetuate these “deep rooted” racial and social disparities. The ICEC found that these instances of racism are “entrenched” in the culture of cricket. Reflecting the personal experiences of players, it noted that “racism in cricket is not confined to ‘pockets’ or ‘a few bad apples’, nor is it limited to individual incidents of misconduct”; there is a “high prevalence” of racism in the game. Accordingly, the ICEC was critical of the institutions of cricket for poorly investigating complaints of racism and creating an environment where players “suffer[ed] in silence” thinking that no action would be taken if they reported abuse. 

The ICEC was also critical of the sport’s approach to women’s cricket, saying that women’s cricket is still “an ‘add on’ to” the men’s game and “women continue to be treated as subordinate to men within, and at all levels of, cricket.” It noted that women receive an “embarrassingly small amount” in terms of pay and investment compared to men. For example, credible evidence indicated that the average salary for England Women is 20.6% that of the average salary of England Men and the total investments of funding for boys’ Academies alone was equivalent to 40% of the total funding for the entire Women’s Regional Structure. Furthermore, the ICEC noted that women are marginalised, routinely experience sexism and misogyny, and are “frequently demeaned, stereotyped and treated as second-class”. It concluded that “[t]he women’s game lacks proper representation amongst the highest level of decision-makers within cricket.” It noted that only 12.7% of leadership positions in cricket are held by women and all 18 First Class Counties chairs are male. As a result, women have little to no power, voice or influence within cricket’s decision-making structures.  

The ICEC made 44 recommendations in total, which seek to promote equity within the game by broadening the appeal of cricket, removing barriers faced by marginalised groups, and becoming more representative of society at all levels of the game, on and off the field. The recommendations include:

• putting in place a strong commitment to equality, diversity and inclusion policy and procedure; “one where [equality, diversity and inclusion (EDI)] actions aren’t words on a page but become integral to everything that cricket does”;
• that mandatory, speciality and high-quality training is implemented to support the development of racial literacy amongst cricket’s leadership and the most senior leadership of the wider game; in effect, enabling leaders to set the right tone from the top of the game;
• strengthening the governance structure of cricket, in particular in relation to the women’s game as well as in respect of discipline and integrity;
• investing in, and budgeting for, the advancement of EDI where decision-making is informed by analysis of the impact on race, class and gender; 
• a fundamental overhaul and equalisation of the professional female players’ pay structure, match fees, salaries, allowances, commercial pay, and prize money to that of the Men’s game at both international and domestic levels; and
• developing a much improved formal complaints handling procedure within an open and supportive culture is recommended that acts as the backstop to ensure that formal complaints are handled appropriately, with “proper enforcement, accountability, monitoring and the dissemination of lessons learned to achieve change.” 

Failures in British Gymnastics

“[G]ymnast wellbeing and welfare has not been at the centre of [British Gymnastics’ (BG)] culture for much of the period of Review and it has not, until very recently, featured as prominently as it ought to have done within the World Class Programme and within the development pathways used for talented gymnasts […] the management of safeguarding concerns and complaints by BG and its clubs has not been consistently appropriate or rigorous”.

The Whyte Review, June 2022

In June 2022, Anne Whyte KC published her review into allegations raised by gymnasts of abusive conditions within BG between 2008 and 2020. The Whyte Review found that BG, the governing body for gymnastics in the United Kingdom, enabled a culture where young gymnasts were physically and emotionally abused, including through the withholding of water, food and access to the toilet, body shaming, physical chastisement, excessive training, isolation and humiliation. These were symptoms of a culture that ruthlessly put the pursuit of medals over the protection of children.

Hearing first-hand accounts of the realities faced by young gymnasts, Whyte found a “culture of fear” has left many gymnasts too scared to report abuse and that, of those that did raise issues, British Gymnastics kept no record of complaints between 2008 and 2016. The Review noted that training environments were often inaccessible to parents, which “could lead to situations where it is easier to behave in an inappropriate or abusive manner” and was also “likely to cause parents to become detached”, all of which contributed to an “unnecessarily closed culture”. A lack of education among coaches also contributed to a pernicious cycle in which “inappropriately coached gymnasts are at real risk of coaching inappropriately themselves” because BG had not invested sufficient thought into the co-ordination and content of coach education. The formal education of coaches had focussed on what should be done when coaching gymnastics rather than how gymnastic should be coached. 

The Whyte Review made 17 recommendations to “shift the focus of the sport to gymnast welfare and wellbeing”. In particular, Whyte KC's recommendations centre around four key areas: care of children and welfare; complaints handling; standards and education; and governance and oversight. They include:

• making widely available improved and strengthened policies and procedures covering expected standards of conduct and welfare, which are regularly reviewed and updated;
• introducing mandatory safeguarding training for all club owners and managers, and ensuring that staff are employed with appropriate professional expertise and training to support the safeguarding of gymnasts;
• revising and improving the welfare provision for high performance gymnasts and their parents;
• requiring clubs to have a complaints policy for safeguarding concerns, that is founded in relevant policies and standards;
• implementing better guidance on how to investigate complaints and concerns, including specific guidance for when a complaint is brought against a coach;
• ensuring that all welfare related complaints about coaches employed by BG are independently investigated and, where relevant, determined by a wholly independent panel; and
• appointing independent Board members with relevant professional expertise in safeguarding and athlete welfare.

How football missed the goal

“English football’s fragility is the result of three main factors — misaligned incentives to ‘chase success’, club corporate structures that lack governance, diversity or sufficient account of supporters failing to scrutinise decision making, and the inability of the existing regulatory structure to address the new and complex structural challenges created by the scale of modern professional men’s football. Football is sport but it is also big business.”

Fan-Led Review of Football Governance: securing the game’s future, November 2021

Prompted by the attempt to set up a European Super League in April 2021, an independent “fan-led” review of football was commissioned by then Secretary of State for Digital, Culture, Media and Sport, The Rt Hon Oliver Dowden CBE MP. The review was chaired by Conservative MP, Tracey Crouch. A number of football-specific issues were identified in the resulting report, The Fan-Led Review of Football Governance: securing the game’s future (the Crouch Report).  In addition, the Crouch Report also identified deep seated issues relating to a lack of EDI in football, outlined how women’s football suffers from a focus on participation rather than commercialisation, spectator support and media interest, and addressed the concerning evidence it received regarding player welfare. 

In respect of EDI, the Crouch Report noted that the success of England Men’s journey to Euro 2020 and the fact that 25% of all Premier League players are either black or dual heritage “acts as a disguise for other groups that are not as well represented and areas of the game that are not as diverse”. For example, no black or Asian person has ever officiated at a major final in the 150-year history of English football, only 7% of board directors of professional football clubs in 2019 were female, with only 7% of such clubs having a woman in a leadership position on the board, and out of a total of 4,000 professional players in the English game in 2019 there were only 10 British Asians. No active male professional player has felt able to publicly acknowledge their homosexuality since Justin Fashanu over thirty years ago.

Women’s football was found to suffer from “a culture of ‘dispensibility’ and short-termism”. Fundamentally, the women’s game is not being treated equally to that of the men and the players were not being recognised for their skills. As part of this, like with cricket, the issue of finance for the women’s game “touches on all of the issues currently facing women’s football.” The Crouch Report made it clear that the women’s game had to be properly funded to enable women’s football to grow and flourish, from grassroots through to the elite levels.

Player welfare issues centred around the potential negative impact that involvement with the Elite Player Performance Plan, football’s youth development scheme, has on the large number of young players involved who do not go on to gain a professional contract. In particular, young players suffering from severe mental health issues, a lack of support, and fundamental lack of preparation for a future that does not revolve around playing professional football. Meanwhile, retired players experience a loss of identity for which they are unprepared. A 2018 survey found that half of former professional footballers have mental health and wellbeing concerns, only 40% of which sought help, and half of respondents reported financial difficulties in the five years after stopping playing. Also of concern were indications that as of October 2015, 141 former players are in the British prison system having turned to crime after leaving the game. Around 90% of those offenders were under 25 and a similar percentage incarcerated for drug-related offences, whilst “many more are believed to be in the young offenders system”.

The Crouch Report ultimately outlined 47 recommendations following which were set out in a final report. These recommendations include that:

• each club should be mandated to have an EDI “action plan”, that focusses on the organisation’s EDI objectives and how it is going to achieve them, as part of the annual licencing process;
• women’s football should be treated with parity and given its own dedicated review given the many interconnected issues affecting a meaningful future for women’s football (that review is now underway and has not yet been published); 
• the football stakeholders, including the FA, men’s leagues, the PFA, clubs and women’s leagues should work together to devise a holistic and comprehensive player welfare system to fully support players exiting the game, particularly at Academy level but including retiring players, including proactive mental health care and support; and
• the Football Association should proactively encourage private football academies to affiliate to the local County Football Associations to ensure appropriate standards of safeguarding and education for young players.

In recent months, the Government responded to the Crouch Report in its white paper, A sustainable future – reforming club football governance - which sets out the legislative framework for regulation of the game and broader non-legislative reform measures, “to drive industry action in areas outside of the regulator’s remit” across all levels of the game and for players of both sexes. Tracey Crouch MP noted in the subsequent House of Commons debate that “The White Paper honours and reflects the vast majority of recommendations in the fan-led review”.

Putting the recommendations into practice: what should sports teams do?

What is clear from the reports we have summarised above is that common themes appear relating to the need to improve governance, establish a clear tone from the top in respect of the expected code of conduct and values within sports, the provision of mandatory specialised training, the implementation of clear complaints handling procedures, and ensuring that complaints are investigated quickly, thoroughly and appropriately.

The appropriate investigation and handling of complaints is crucial. Concomitant to harrowing evidence received by the inquiries of racism, abuse and sexism were failings in internal investigations and internal reporting policies. We have previously discussed the need for sports organisations to put in place appropriate measures for investigating issues, and the consequences of failing to do so. Simple measures such as a clear reporting infographic – detailing the relevant personnel within an organisation to report issues to – can be beneficial as it helps create an environment where no one is left to “suffer [issues] in silence”. When conducting an internal investigation, it is important for clubs to consider: (i) who the necessary personnel are that should be involved; (ii) how documents can be kept confidential and/or legally privileged; (iii) how an organisation should appropriately deal with the victims and perpetrators of abuse; (iv) and upon the conclusion of an investigation, what the necessary remediation steps are. For further information on conducting an internal investigation, you can read our dedicated article here.  

Pamela Reddy is a white-collar crime and investigations lawyer based in London. She has worked on a number of sport-related matters, including investigating allegations of abuse on behalf of a well-known football club, advising high-profile sports clubs on regulatory frameworks, including on policies and procedures and remediation plans, representing well-known sports clubs before regulatory bodies, and representing prominent individuals in sports in relation to various criminal offences. 

Naomi Miles is a white-collar crime lawyer based in London. She focuses on complex multi-jurisdictional investigations, risk mitigation, and compliance. Her practice covers all aspects of business crime including anti-bribery, anti-money laundering, market manipulation and market abuse, suspicious activity reporting, whistleblowing, and anti-modern slavery. Naomi has significant experience in advising clients under investigation by regulators and government enforcement agencies, including the SFO, FCA, DOJ and SEC.