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Farrer & Co | Inn the Field of Play - November 2017: Sports governance, where to from here?

As the 31 October deadline for compliance with UK Sport and Sport England's Code for Sports Governance has now passed, it seems an apt time to reflect on its impact so far. Published in October 2016, the Code acts as a minimum governance standard with which National Governing Bodies (NGBs) must comply in order to receive funding from UK Sport or Sport England. Non-compliance with the Code, as Table Tennis England (TTE) discovered to its cost, can lead to a suspension or withdrawal of funding.

In TTE's case, there were reportedly fears that the Code's rules on board composition would result in executive decision-making being left to individuals with limited table tennis experience (for the first time since TTE's incorporation in 1926). Adherence to the Code, it seemed to some members, undermined the notion that the sport should be run by those who play and understand the game, and that was a bitter pill to swallow. However suspension of the sport's £9m funding seemed to provide a reality check and the special resolution necessary to amend TTE's constitution was duly passed at the second time of asking.

Table Tennis England is not the only governing body to face resistance to Code-related reforms. British Cycling called in Sir Chris Hoy to rally its members to support the special resolution needed for compliance, as Emily Jamieson discussed in July. Sufficient votes duly garnered, British Cycling's chair, Jonathan Browning, resigned earlier this month to allow a new, entirely independent, chair to be appointed.

Browning took over during a period in which, in his own words, British Cycling was 'in the depths of a crisis'. In response, during his nine months in office Browning has overseen approval for the changes required to comply with the Code, as well as securing funding for the Tokyo Olympics and implementing new policies on grievances and whistleblowing.

However, Browning has at the same time faced criticism for his role in the handling of Jess Varnish's sexism allegations in 2014, with the internal review into such allegations being described by an independent review as 'inept'. Browning's position on the board at a time when a number of now heavily criticised decisions were made seems to have made his tenure as an independent chair untenable.

Moving from a sport on two wheels to one on four legs, the British Equestrian Federation's (BEF) members have recently voted unanimously to approve new Code compliant articles of association and the appointment of a new board of directors. New BEF Chair, Ed Warner, formerly of UK Athletics, sees his mandate as ensuring compliance with the Code is 'business as usual, not simply a box ticking exercise' and that it provides a platform for supporting the equine industry with 'integrity and objectivity'.

Warner's words are a helpful reminder that the Code compliance deadline does not mean NGBs can set aside the Code and move on to the next project. Compliance is an ongoing requirement and should be regularly monitored, so that (hopefully) it provides solid foundations for better governance practices throughout the organisation.

The Code seems particularly prescient in light of the eruption of other issues in the sporting world over the last year or so, including in relation to anti-doping, bullying, safeguarding and diversity, to name just a few recent examples. A number of NGBs have recently been accused of having a 'win at all cost' mentality, amid concerns of bullying and wider safeguarding issues. In other sports, there have been concerns of aggressive coaching strategies, a lack of empathy for athletes' well-being, and, in some scenarios, racism, and creating a so-called 'culture of fear'. There is a real risk that NGBs' reputations will be tarnished by such allegations and, looking forward, it is likely that cultural reform (even if this is designed to allay perceived, rather than actual, concerns) will need to be at the forefront of NGB thinking.

It is apparent, then, that the Code has been introduced at a time when there are wider governance and cultural issues facing the sporting world. As we have mentioned above, the introduction of best-practice corporate governance will hopefully provide a solid basis for NGBs but Code compliance cannot be viewed as a box-ticking, one time only exercise for running a successful organisation devoid of internal cultural issues and malpractices. Recent examples could yet prove to be the tip of the iceberg and there is clearly a need to address issues such as the relationship between elite level coaches and individuals, and ensure that bullying and safeguarding measures are consistently and universally adopted and implemented by NGBs.

It will be interesting to see UK Sport's response to these wider and increasingly publicised issues. Newly appointed independent NGB boards with truly independent directors will hopefully be well placed to eliminate unacceptable cultures and ensure best practices are followed. As a more direct tool, the risk exists that UK Sport could address damaging cultures and practices by reducing or withholding funding as deemed necessary, being able to demonstrate that they have prioritised those issues and adhered to prescribed good practice.

This is all speculative, of course. However, what is clear is that the Code's corporate governance standards are merely the foundations for successful governance. NGBs need to build on those to create a progressive, positive environment for all stakeholders. Many are doing so but there remains work to be done.

If you require further information on anything covered in this briefing please contact Tom Bruce, Emily Jamieson or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports Organisations page on our website.

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

© Farrer & Co LLP, November 2017

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