Monday, 25 March 2013

Nirvana - How to Combat Racism in Football?

What happened to Rio Ferdinand yesterday ('sick racist chanting about burning people on bonfires') amply demonstrates that the positive cause I write about below could not be more valid and urgent. The total inability of the English FA to react appropriately speaks volumes. I haven't been a victim of racism my whole life, but I am beginning to understand how easily many are and how easily it is ignored by the rest of us.
Although Nirvana is a magical word with many different meanings and important spiritual connotations, for present purposes I am going to use just 2: liberation and salvation.
Last week  I attended an inspiring and moving event in Leicester entitled 'Race for Football - National Road Show 2013'. It was organised by Leicester Nirvana FC and supported by The Voice newspaper, Society of Black Lawyers and Black and Asian Coaches Association (BACA).
The very first person that I spoke to at the event said that he had attended in order do 'his bit' to try to improve or remove issues of racism in football. Sadly however he also remarked that he had been talking about this subject for 20 years (his whole adult life essentially) and not a great deal had changed for the better.
Regrettably I also spoke to one attendees who seemed to only want to be seen to be doing the right thing, but who clearly had no desire to embrace multi culturalism at all.
According to recent research at Loughborough University (Dr Jamie Cleland and Professor Ellis Cashmore), racism in British football is 'rife'. Surveys of fans had revealed that the problem was believed to be 'endemic'.
At the Road Show all bar one of an audience approaching 100 people indicated that they had directly experienced racist abuse. Very few had made an official complaint, but if they had the outcome had been considered 'poor' in the majority of cases.

We watched a video presentation during which black and asian children spoke articulately about their experiences of being verbally abused on football pitches and from the touchline - often by adults. The Loughborough research seemed to be echoed at the Road Show. My predominant impressions were that the overwhelming majority of the audience felt that not enough was being done by the authorities and various anti racism campaigns within football to address this, particularly for them, very real and painful issue.
Roisin Wood Chief Executive of Kick It Out was a member of the Panel and she spoke very passionately. However as she told me during a break, KIO is caught on the horns of a dilemma, funded by the FA, and to a degree by the PFA and the Premier League, and therefore has its independence questioned. Remove FA support however and the charity would be obliged to seek commercial support which would almost certainly compromise its independence further. I say funded, but that budget is approximately £440,000 per annum, the equivalent of the weekly wages of perhaps 4 premiership players, and KIO numbers just 7 people. Having met Roisin I am convinced that KIO could achieve so much more if it were given adequate and meaningful funding. I would have liked to develop that discussion. Why does the football community think that its lead anti racism charity is only worth a minute fraction of the vast sums of money pouring into the game? Criticism of KIO for not having sufficient impact or for not doing enough, often expressed as 'just handing out t - shirts', cannot be justified given that level of resources. KIO is non investigatory and non sanctioning. Its role is education, advocacy and support. I would like to help KIO.
The prevailing mood of the gathering was that the football authorities remain very unrepresentative, predominantly white, male institutions. The pace of change is glacial and, as Colin King of BACA observed, it can take a whole career to progress through an organisation like the FA before acquiring the appropriate blazer (usually from somebody who has passed to another life - he was only partly joking!) The mismanagement of the John Terry Case had given many the impression, rightly or wrongly, that the FA's main priority had been to ensure that Terry was available for Euro 2012. The woefully inadequate punishments handed out for racist chanting across Europe reinforce the view that there is insufficient will in football governance to address the need for change, and that any action is merely window dressing.
The FA's representative on the Panel, Jonathan Mills, was at pains to emphasise the FA's FA's Anti Discrimination Action Plan. The audience were dubious and particularly sceptical about the likely benefits of the initiative. Keith Murdoch of Leicestershire County FA seemed very willing to engage with minority community groups and responsive to Leicester Nirvana's cause of 'removing racial discrimination wherever it exists'. At a local level it was encouraging and seemed feasible that better representation and enlightenment could be achieved. However the stories of the abuse suffered by ethnic minorities whilst playing a sport in Leicester were dispiriting.
Nirvana FC was formed in 1982 to enable young black and Asian children from Inner city Leicester areas to have a sporting opportunity in a positive and supportive environment. In spite of tremendous hurdles and some needless obstacles, the club has thrived against the odds. Youngsters have progressed to the professional game and there are approximately 50 Nirvana players who have gone through professional football academies.
Nirvana seek the following reforms to football governance:
*FA to invest in and work with grassroots clubs to tackle racial discrimination
*Local FA to develop transparent disciplinary procedure to address racial discrimination and abuse
*A compulsory module to be integrated in all FA coaching, managerial and refereeing qualifications that addresses multi cultural issues to develop participants cultural learning
*FA to provide a diversity breakdown of the distribution of facilities and funds at all levels
* FA to commit to addressing all racist incidents, involving Police and having a zero tolerance approach to repeat offenders.
I met a lot of fantastic people that night. There was no hostility towards me as a minority person amongst that audience. I found that everybody wanted to engage and to learn. The event was full of hope and ambition. It is just a beginning, essentially driven by ordinary (but also extraordinary) people.
To my mind the goals are Nirvana - the liberation of all people to enjoy 'the beautiful game' equally, and the salvation of the true essence of that sport cleansed of the curse that is racism.

Monday, 18 March 2013

Taking on the IOC at CAS

Last week the Court of Arbitration for Sport finally delivered its verdict in the case of Mu Yen Chu and Chinese Taipei Olympic Cttee v The International Olympic Committee. The IOC managed to carry the day and thereby maintain the status quo with regard to their London 2012 Athlete's Commission Election result. The IOC had disqualified Chu and the Japanese athlete Murofushi for breaches of the election rules regarding campaigning. The rules effectively outlaw campaigning. There seems little doubt that the rules place lesser known candidates at a disadvantage. This may have some relevance to CAS' ultimate conclusions.
 The merits of the rules for this particular election are dubious, although this was not the point of the case before CAS. Chu denied breaching the rules. The case had originally hit the headlines because Chu was accused of handing out lollipops to athletes in order to, supposedly,  entice them to vote for him. The source of this allegation only became known during the course of the appeal proceedings. The Australian Chef de Mission, Fiona de Jong, had emailed the Election Committee complaining that she had been told that Chu had been handing out the aforementioned candy in the Athletes' Village. It transpired that she had not witnessed this herself, had not identified any athlete who had in fact witnessed this and could supply no other evidence of its ever having taken place. De Jong was not called by the IOC at CAS, and although they maintained the allegation throughout the appeal, the IOC produced no further 'evidence' beyond the original second hand De Jong hearsay email. Unsurprisingly CAS found that there was insufficient evidence to 'confirm Chu distributed lollipops'.
 It may not be that surprising that the Australian delegation did not wish to further involve itself in this matter by appearing at CAS.  During the Games a photograph had been published in the media showing the Australian Election candidate, James Tomkins (he was elected), walking around the Village next to a giant 'kangaroo'. This might have been extremely awkward for the IOC and the Australians given that, unlike the case of Chu, there was actually photographic evidence of the activity, but nothing had happened to Tomkins. It might have been suggested that this was overt campaigning  of the kind outlawed by the IOC's rules. CAS commented (the matter was not directly relevant to the Appeal) that 'the photograph proved nothing in the absence of evidence that he deliberately posed with the kangaroo'. See for yourselves.

The appeal ultimately came down to the question as to whether there was evidence that Chu had further transgressed after he was given a written warning on the 26th July 2012 (following the De Jong email). The only evidence called by the IOC on this point was that of the Zimbabweans, Kirsty Coventry (travelled and appeared in person) and Busi Chindove (Chef de Mission of Zimbabwean team - by mobile telephone from Zimbabwe - incredibly and perfectly audibly). Interestingly Miss Coventry had lost the original election, but following the disqualifications of Chu and Murofushi she found herself in 3rd place and accordingly elected. Whilst acknowledging that Miss Coventry was 'de facto interested in the outcome' the Panel accepted her evidence, supported by her colleague Chindove, that Chu had campaigned in restricted areas after the warning letter of the 26th July, notwithstanding that she only complained about these transgressions after the vote had ended, and when the results of the election were certainly known to some, according to some unchallenged witness statements.
An interesting aspect of the case was the position of the Chair of the Election Committee, Anita De Frantz, a very senior and longstanding member of the IOC. De Frantz had caused the original warning letter to be sent to Chu. She was present at meetings with Coventry and Chindove, conducted the 'Investigation meeting' with Chu and presented a 'comprehensive oral report' to the Executive Board. The Appellants wanted to question her about the process by which it was decided that Chu had transgressed ie about the nature of the evidence and how it came to her attention and how the decision that Chu should be disqualified was arrived at.
De Frantz seemingly refused to play any part in the proceedings and the IOC proceeded without her, calling other witnesses in her stead, but never providing the answers that the Appellants were seeking. The Panel were of the opinion that the 'De Frantz argument' was not relevant as this was a hearing de novo, and accordingly it was for the them to decide whether the IOC had proved its case, and if so, whether the sanction imposed was within the appropriate range of proportionate responses.  The Panel never did hear what was contained within De Frantz's 'comprehensive oral report' for which there was no written record.
Reputation Intact

Mu Yen Chu had set out to clear his name. He had been stained with the label of 'lollipop man'. Although ultimately the Panel found against him in the appeal, it was interesting that they chose to specifically characterise him as being guilty only of 'excessive zeal rather than of a desire to cheat'. His  actions were 'overt rather than covert' and 'they should not be equated with dishonesty'. According to the Panel, Mu Yen Chu's 'reputation and integrity as a sportsman remain untarnished'. Vindication of sorts.

Thursday, 14 March 2013

Liar, Liar - Should Polygraph Evidence be used in Sports Tribunals?

The use of polygraph or lie detector evidence in Sports Law cases has been much debated. Given that evidence beyond adverse analytical findings is being used more frequently to prove doping violations pursuant to the WADA Code, there are calls for the use of such evidence, both to prove cases against and to exonerate athletes accused of doping. In cricket, in a bid to fight corruption, Steve Waugh, ex Australian captain, has led calls for the use of lie detectors. He 'convincingly' passed a test to 'demonstrate' that he had never been involved in match fixing. The MCC released a statement "The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject but their potential use should now be widely debated in the game".

Waugh Advocates Use

There is considerable disagreement as to the accuracy of polygraph testing. Claims as to its reliability seem to range from 60 - 95% accuracy. In the CAS case of Alberto Contador, the Panel heard evidence from 2 leading professors who suggested an accuracy of 95% with 5% false positives ie people said to be lying who were not in fact. Nonetheless there must always be a degree of self interest in assessing the validity and value of one's own expertise.
 In the UK polygraph evidence is not used in courts, but it has begun to impact upon other legal procedures. The use of lie detector tests for certain criminals subject to  licence conditions has been legalised and sex offenders can now be assessed for release based in part on such investigations. Polygraph evidence is used in criminal proceedings in some US states although it is often said that the role of the jury in deciding the truth should not be usurped by scientific devices and the like.
The polygraph measures a person's physiological responses (eg pulse, respiration, blood flow etc). The theory is that a person's natural fear of being caught out in a lie will result in increased physiological responses when answering the relevant questions as opposed to when answering the control questions.
Opponents of the testing suggest that it can be defeated in a number of ways including by the adoption of 'counter measures' (such as the use of drugs and hypnosis) to reduce the variance in physiological response, but also by the self infliction of pain to derail the control response. Indeed Lance Armstrong's lawyer's statement in 2012 that the cyclist would be willing to take such a test to prove his innocence suggests that he was massively confident of successfully defeating it. Armstrong nemesis Tyler Hamilton even admits in his book 'The Secret Race' to having beaten the lie detector machine.
The position of CAS with regard to the admissibility of this type of evidence has shifted. In 2008 the Swiss athlete Daubney sought to rely upon a successful polygraph test to prove his innocence of knowingly taking cocaine. CAS ruled that such evidence ws inadmissible under Swiss law and accordingly any statement made to the expert by Daubney was purely admissible as a personal declaration. The expert scientific evidence was not admissible. Subsequently in the case of Alberto Contador, he successfully argued that, pursuant to WADC Article 3.2 'facts relating to an anti doping violation may be established by any reliable means' which had not been in force at the time of Daubney, such evidence was admissible. The admissibility was not challenged by the other parties. CAS ruled that the evidence added  'some force' to Contador's 'declarations of innocence, but do not, by nature, trump other elements of the evidence'.
The Chinese judoka Tong Wen also sought to rely upon polygraph evidence at CAS. Both Wen and Contador were represented  by Mike Morgan. The Respondent objected, but CAS did not ultimately make any finding about this aspect of her case. They ruled that the Respondent had not proved the doping violation because the B sample had been tested without the athlete being present and accordingly the adverse analytical finding was inadmissible.
Mike Morgan has reportedly made the point that such evidence should only be admissible where the athlete has consented to the procedure. Compulsion to take the test is, he argues, likely to skew the results of the test and accordingly render it unreliable in any event.
It is therefore more than likely that this type of evidence will prove more useful, but to a limited degree, to the accused athlete, than the prosecuting authority.

Thursday, 7 March 2013

Can Danish Kaneria Evade Ban?

The answer to the question posed above was delivered today 26/4/13.
Kaneria lost his appeal against the findings of match fixing. Surprisingly the appeal against the sanction of a life ban is to be heard later. Once the ECB secured a High Court summons against key witness Mervyn Westfield, and in the spite of the bluster of Kaneria's legal team, the writing was on the wall for the Pakistani. This was a very good day for cricket.
The Original Story
In 2012 Danish Kaneria was found guilty by an independent ECB anti corruption panel of inducing another player (Mervyn Westfield) to under perform and of bringing the game into disrepute and consequently given a life ban. Because of reciprocal arrangements throughout cricket his ban is enforceable worldwide. Kaneria has not been able to play cricket since because notwithstanding an appeal the ban took immediate effect. The finding against him was largely based upon the testimony of Mervyn Westfield, a colleague at Essex County Cricket Club. Westfield himself was imprisoned for 4 months and banned by the ECB for 5 years although he can return to club cricket after 3 years. The Police also investigated Kaneria, but, given that they could not rely upon Westfield as a witness at that time, concluded that there was insufficient evidence to proceed.
The ECB Panel accepted Westfield's testimony before them and found Kaneria to be lying and giving an implausible account.
Kaneria is now appealing the ECB's finding against him. The hearing should have taken place in December 2012, but was postponed until April 2013 due to the unavailability of Westfield. It is believed that Westfield has withdrawn his co - operation and is refusing to attend. It was widely believed that Westfield could not be compelled to attend. Given that he cannot get his own ban reduced by continuing to co - operate, he appeared to have lost any desire to assist the ECB. When deciding upon the sanction in his case, his ban could have been mitigated by 'substantial assistance', but there is no provision to enable his sanction to be revisited in the light of subsequent co - operation. The time limits to appeal his original ban expired 21 days after the Panel's decision. There appears to be no discretion to allow Westfield to appeal out of time. Accordingly the ECB has no incentive to offer Westfield for his co - operation and testimony.
Nonetheless in a sensational development on the 11th April 2013 the ECB successfully obtained a witness summons from the High Court compelling Westfield's attendance before the Disciplinary Appeal Panel. Pursuant to Practice Direction 34A
 A witness summons may be issued in the High Court or a county court in aid of a court or tribunal which does not have the power to issue a witness summons in relation to the proceedings before it.


 Kaneria had been looking to profit from the absence of the ECB's star witness, but this is a potentially devastating blow to his hopes? The ECB may have turned the tables on the Pakistani cricketer at the eleventh hour.
The appeal is not ordinarily by way of a de novo rehearing. There is a presumption within the regulations that the appeal will look at the 'reasonableness of the original decision' rather than hearing evidence afresh.

Regulation 7.4.2
Where required in order to do justice (for example to cure procedural errors at the first
instance hearing), the appeal shall take the form of a re-hearing de novo of the issues
raised by the case. In all other cases, the appeal shall not take the form of a de novo
hearing but instead shall be limited to a consideration of whether the decision being
appealed was “Wednesbury unreasonable”.

 The legal arguments will turn on the interpretation of the phrase 'where required in order to do justice'.
Kaneria will argue that he is entitled, and that it is necessary, to cross examine Westfield (again) in order for justice to be served. Those acting for the ECB will contend that there is a full record (indeed an audio recording should exist) of Westfield's evidence and that it was fully tested at the original hearing by prominent Queen's Counsel and sports lawyers. Unless there have been significant developments since the original testimony and there are fresh matters that should be put to Westfield which undermine his credibility, the ECB's standpoint may prevail. Furthermore  I cannot see that Kaneria has any prospect of persuading the appeal panel that the original decision was 'Wednesbury unreasonable' ie perverse and contrary to the evidence.
Those acting for Kaneria have recently been loudly expressing their position in the media and asserting that a significant claim for compensation against the ECB for worldwide  loss of earnings will follow. They further suggest that they want Westfield to attend the hearing and for the 'truth' to emerge. They argue that any future hearing should be held in public knowing that ECB rules state the contrary. Somehow I doubt very much that Kaneria's team would greet an appearance by Westfield at the eventual appeal hearing with open arms. They may have to suffer it anyway and get what they 'publicly desired'.
The Daily Mail (22.3.13) floated the prospect of a rapprochement between the ECB and Westfield and perhaps some mitigation of the length of his ban. It does not identify the mechanism by which this would be achieved. Of course it would be very attractive to the cricket authorities to secure the co - operation of Westfield in an attempt to maintain the ban on the much bigger fish which is the Pakistani cricketer. In addition it claims that Westfield testified at the Old Bailey during criminal proceedings. In fact he pleaded guilty. Any observations there about Kaneria came from his defence Counsel and the sentencing judge. Kaneria of course was not ultimately prosecuted in the criminal courts due to lack of evidence.
Following Day 1 of the hearing Kaneria and his team were less ebullient than previously, claiming that the evidence was 'not strong' and that you cannot take away somebody's livelihood on the word of one person. This suggests that whatever misgivings Westfield has about his presence at the appeal his testimony continues to damn Kaneria.

Rugby - Breach of Natural Justice?

The Rugby Football Union is under fire this week following the case of Milton Keynes number 8 Stuart Tomkinson. He was found guilty by an RFU Independent Appeal Panel of racially abusing Slough's Gavin Connor. Tomkinson, who is 39 years old, was banned for 12 weeks.
Tomkinson was cited by Slough, but he was cleared last October at the original hearing. The match referee, who was close to the action, stated that he did not hear the alleged abuse.
 Slough exercised their right to appeal as they were entitled to do under RFU Regulations if they were 'dissatisfied' with the original decision. They sought and were allowed to introduce fresh evidence, the testimony of other Slough players.
The decision of the RFU Independent Panel, which was comprised of 3 independent lawyers is final meaning that Tomkinson has no further right of appeal within the RFU regulations even though this was the first time a panel had found against him.
The reason why the case is controversial is because Milton Keynes RUFC and Tomkinson accuse the  RFU of taking sides. Under RFU Regulations they appointed the independent lawyers who made up the Panel. However the RFU also appointed Slough's legal representatives claiming that'it was in the interests of the game to have Slough's case 'professionally represented' given the seriousness of the allegation'.
Milton Keynes Chairman John Theobald has resigned in protest accusing the RFU of taking sides. The RFU claimed that it was a 'complex case' and that 'slough needed support in their case'. This statement suggests that Milton Keynes may have some cause for their argument.
Stuart Tomkinson was said to be considering whether to take the case to the Court of Arbitration for Sport and ask them to consider the appropriateness of the whole RFU disciplinary process. However any such appeal is out of time and in any event in the absence of a specific arbitration clause granting CAS jurisdiction, and without RFU agreement, the CAS route is closed.
Perhaps it is time for the RFU to consider removing itself from its role in appointing the members of its disciplinary panels, and most certainly from involving itself in the provision, in any way whatsoever, of legal representation. A proper right of appeal would be appropriate as well.

Pistorius and Press Reporting

Notwithstanding the seriousness of the allegation, Oscar Pistorius has now successfully challenged his bail conditions on appeal and is free to travel abroad to compete again. Whether he is physically and psychologically fit to undertake such activity is another matter, although making the application suggests that Pistorius has been able to shrug this matter aside. What he may well not have bargained for is the level of hostility towards him overseas. It will be interesting to see whether any promoter is ghoulish enough to want to benefit from the 'notoriety' now attached to this athlete. It looks like another media fest is about to begin.
This article first appeared in the Leicester Mercury on the 2nd March 2013.

Oscar Pistorius was abusive and possessive, his paranoia fuelled by illegal drugs. He snapped reading texts from his pregnant girlfriend’s former Springbok boyfriend, smashed her skull with an implement before shooting her four times as she cowered behind a bathroom door. 

This is the sensational story presented to the world via the media months before his trial. The true facts will only be known at a future date.

If Oscar Pistorius was being tried in this country, I would be able to tell you what the charges were, of his denials, that he had been granted bail, when he was next due in court and his likely trial date.

By contrast in South African almost any information is fair game, every titbit of speculation placed in the public forum, whether true or not.
As the world learnt of the fate of Reeva Steenkamp, Police were openly rubbishing press suggestions that Pistorius had accidentally shot his girlfriend mistaking her for an intruder, publicly calling this a case of premeditated murder.

Shattering my London 2012 glow, I was dismayed to ‘learn’ that illegal steroids had been recovered, that Reeva’s skull had been caved in and that a ‘bloodied cricket bat’ was present at the crime scene.
The steroids evidence was presented at the bail hearing, but unforgivably it was erroneous. Police had not done their homework; the drugs were neither steroids nor illegal. For three days I had believed that Pistorius was a drug cheat and accepted the theory that the steroids had turned him into an aggressive killer.
Magistrate Nair broadcast his bail decision to the world including his serious misgivings about the credibility of Pistorius’ case. I am incredulous that the defence had put their case in the public domain, and that the judge had publicly expressed misgivings about it, at such an early stage of the process.

On a charge of murder in England, the Crown Court bail hearing would have been held in private, lasted, at most, 30 minutes to an hour, and would not have been the subject of detailed press reporting.
Owing to our Contempt of Court Act little more would be known by the time the matter came before a jury here, leaving them genuinely in a position to honour their oath to try the case according to the evidence presented in court. The jury system in the UK is honest, not easily abused and has withstood the test of history. It is the proper way to do justice. South Africa abolished jury trial in 1969. One judge will have to perform the mental gymnastics required to sift the evidence from the prejudicial pre trial chatter.
UPDATE 11.3.13
The BBC plan to broadcast a programme examining the events surrounding the death of Reeva Steenkamp this evening. Pistorius is described by a close family friend as a 'broken man' and 'possibly suicidal'. He is also said to be selling off assets, such as racehorses, to fund a 'war chest' for his legal fees. Incredibly he is reported as saying to Police officers upon arrest 'I will survive. I always win'.
 The media fest continues!