Briefing

Inn the Field of Play - March 2017:Trouble in a Jiffy: A salutary lesson in poor risk management

Posted by: Julian Pike | Date posted : 16/03/2017

British Cycling (BC) and Team Sky have sadly undergone a torrid ordeal in recent months, reaching something of a crescendo earlier this month with a British Cycling coach and the Chief Executive of UKAD giving evidence before Culture, Media & Sport Select Committee. BC and Team Sky's experience provides a salutary lesson for all National Governing Bodies and Clubs when examining their risk management protocols, policies and practices.

It may well be the case that what Dr Richard Freeman administered Sir Bradley Wiggins on 12 June 2011, on the last day of the Critérium du Daphiné, was in fact the legal decongestant Fluimucil – as both men claim – and not the banned substance triamcinolone. The fact is, despite a detailed investigation by UKAD (which continues), we may never know for sure and the following issues are all indicative of the lack of clarity:

  • No one seems to be able to say for sure what was in the jiffy bag taken from Manchester to France on 12 June 2011, least of all the man who carried it;
  • BC had no policy on maintaining medical records, whereas it seems Team Sky's policy was not followed;
  • Dr Freeman did not upload details of the drug administered to Sir Bradley on Team Sky's central database;
  • Dr Freeman's laptop, where it is claimed to have stored the records of what was in fact administered, is said to have been stolen in Greece in 2014; and
  • There were clear issues around demarcation and conflicts as between BC and Team Sky.

As dog's dinners go, this is up there. In a sport where doping has been rife over many, many years, Team Sky especially, but also BC, has held itself out as the team that is different: it has consistently claimed to be both legally and ethically strong in its anti-doping approach to running the most successful cycling team in the past eight years or so. So the mantra goes, its success has been built upon the theory of marginal gains. Sadly, those marginal gains do not appear to extend to keeping meticulous medical records.

Of course, it is entirely possible that Sir Bradley did indeed take Fluimucil in June 2011.  However, the inability to answer what was in the jiffy bag and the general lack of evidence leaves BC and Team Sky wide open to suspicion; suspicion that is made all the worse by the fact that UKAD has established that BC had within its medical cabinets an unexplained significant amount of triamcinolone, much more than would be required for a single rider who needed it for legitimate medical reasons and was using it under the therapeutic use exemption rule (a TUE).

Where this is all going to end is unclear. Dr Freeman was unable to appear before the Select Committee due to illness, although he may still be called, as well as facing a possible General Medical Council Disciplinary hearing due to his poor record keeping. Sir Bradley is sticking by his version of events and it is understood that he will not be called by the Select Committee. Calls for Sir David Brailsford's resignation have been met with a concerted effort by Team Sky riders publicly backing their CEO. Whether UKAD will definitively discover the jiffy bag's contents (notwithstanding its seemingly fulsome investigation) is perhaps unlikely at this stage and it must be even less likely that Dr Freeman's laptop will make a miraculous reappearance.

At the end of last year, Sport England and UK Sport published their Code for Sports Governance. For NGBs receiving more than a £1m there are clear mandatory governance requirements and targets in terms of diversity and other such goals.

What did not grab any headlines – why would it? – was the requirement for NGBs to "maintain robust risk management and internal control systems". They are also to be required to "conduct an annual review of the effectiveness of the organisation's risk management and internal control systems to ensure they provide reasonable assurance".

As has already been raised as a possibility in the context of BC, an NGB that fails to ensure that proper risk management controls are in place faces the distinct possibility of losing some (if not all) of its public funding. This should not be seen as an idle threat. For the long-term good of British sport and compliance with the new Code, it should be seen as a distinct possibility that Sport England and/or UK Sport could look to make an early example of an NGB partly to send out a very clear message.

An NGB faces a number of risks that it must provide for including for example: financial, safeguarding, data breaches; athlete welfare; training camps and board integrity. However, given the ever present need to monitor and test for doping in all modern sport, a critical risk will be its anti-doping policies and practices. In the same way it is a risk for an athlete not to be able to meet the whereabouts requirements, it is vitally important that an NGB can hold itself up to scrutiny that it not only has the right anti-doping policies and procedures in place, but that it can demonstrate compliance with them.

Mindful of the risks of looking in from the outside and not therefore being in possession of all the facts, even if we give the benefit of the doubt to BC and Team Sky, what this episode demonstrates is the ever present need for vigilance and rigorous enforcement of the "no complacency" rule, no matter how successful an organisation has been. Indeed, as in business, it would seem the more successful a sport, the greater the risk of complacency. There needs to be an ever present positive mind-set to guard against complacency.

While professional sports clubs are not ordinarily the recipients of public money, there is every reason for them also to use the recent BC/Team Sky experience to review their own processes and practices. Misdeeds or the inability to provide a coherent explanation can lead to significant financial cost, loss of partnership revenue and reputation damage. No club should therefore look at the BC/Team Sky's experience and think it has no relevance to them.

Risk management is an increasingly vital function for sports organisations. What the new Code for Sports Governance does is to give it impetus and a reason to focus on ensuring NGBs meet proportionate standards with regard to their sport and the risks faced.

There is a requirement to plan, put in place preventative measures, engage in scenario role play, carry out spot checks and annual reviews, as well as to have a crisis plan for when (not if) a crisis arises. Risk needs to be a board level matter for NGBs and professional sports clubs, with at least one board member (but probably more) designated to oversee risk management within the organisation. Some boards will already be on top of risk issues while others will still be in the foothills. Wherever an organisation may think it is in developing its risk function, there is no basis for postponing progress or thinking it has risk covered. Best practice will also necessitate the involvement of external expertise, most probably across a range of disciplines bearing in mind the potential risks.

Sir David has understandably said in a letter to the Select Committee that "mistakes were made" but been unequivocal in saying that "there is a fundamental difference between process failures and wrong-doing." That is of course entirely true. An NGB and team innocent of the more serious charge are right to defend their position. However, how much easier would it have been if the risk management within BC and Team Sky had been of a standard that would have made the present chastening experience far less likely?

There is much to do.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Farrer & Co, often working with other professional advisers, advise on a wide range of risk issues for sporting organisations. If you would wish to discuss any of the issues raised in the article, please contact Julian on either julian.pike@farrer.co.uk or 020 3375 7217.

© Farrer & Co LLP, March 2017