We're all familiar with the recent falls from grace of Flavio Briatore in F1 and Dean Richards at Harlequins in the 'Crashgate' and 'Bloodgate' scandals. Amongst the headline tales of deceit, subterfuge and backstabbing for sporting advantage, one of the most interesting themes which came out of these scandals was the apparent increasing recognition of an unwritten whistleblowing policy by the sporting regulators involved. It seems that if you're willing to point the figure at others (even if you are complicit in events yourself), leniency, or indeed a total exemption from punishment, could be your reward.
In 'Crashgate', there were in fact two instances of whistleblowing. Not only did Nelson Piquet Junior come clean as to the events at the Singapore Grand Prix, but a Renault employee, known only as 'Witness X,' also gave evidence. In the case of 'Witness X', there was no evidence to suggest he was involved in the conspiracy – this was a classic case of whistleblowing by an innocent party which the law in the UK seeks to protect (see further below) – and the World Motor Sports Council in its decision recognised his right to remain anonymous. Similarly, Renault F1 itself recognised its obligations under English law (specifically, the Public Interest Disclosure Act 1998) not to act to 'Witness X's' detriment by identifying him. So far, so straightforward.
What's more interesting is the decision of the World Motor Sports Council to give Nelson Piquet Junior total immunity from individual sanction for his part in the conspiracy. Examine the International Sporting Code – the regulatory code for participants in F1 – and there is no express regulatory basis for offering immunity to whistleblowers such as Piquet. Plainly, the Council has the discretion to offer immunity, but it is often troubling for legal observers to see a moral judgment provide the basis for a regulator's decision. While the party line may have been that it was imperative for the good name of Formula One that Piquet be given immunity so as to get all the facts in the open and conduct a proper enquiry, the subtext to the more cynical observer might be that Piquet, as a young driver with an unsure future following team instructions (and, of course, showing a willingness to tell the truth), was deemed to be less deserving of punishment than his more established co-conspirators, Flavio Briatore and Pat Symonds.
What about the punishments meted out in 'Bloodgate'? Well, change the names and the detail of the case and you are left with a strikingly similar story. Tom Williams, the young Harlequins wing seeking to establish himself in the game, had his initial ban of 12 months for biting on a fake blood capsule to effect a blood substitution reduced to 4 months before the Appeal Committee of the European Rugby Cup, following his full disclosure of events in the Leinster game. Yet Dean Richards, Harlequins director of rugby, was given a 3 year ban.
Again, consult the Disciplinary Regulations of the Heineken Cup and you won't find a formal policy on leniency for whistleblowing. However, the Appeal Committee was prepared to, in effect, create such a provision for future application by setting a precedent in its decision. Its guidance was unequivocal – "co-operation with the rugby authorities to uncover the truth...should lead to a substantial discount in the period of suspension".
Both the IRB and the RFU, in upholding the decision of the Appeal Committee in their spheres of jurisdiction, have tacitly approved this position.
Our view is that this is certainly not the last that will be heard on the issue of whistleblowing in sport. Both the FIA and the ERC have set precedents through their decisions, which cannot be ignored in future instances of this type in their sports. However, by their nature there is scope for argument as to precisely what precedent has been set and how they will apply to a different set of facts. Sports regulators are already considering amending their rules and regulations so as to ensure that they have clear, coherent and enforceable rules on whistleblowing and its consequences. Similarly, The FA and the RFU, amongst others, have recently introduced whistleblowing hotlines. Watch this space for Office of Fair Trading style 'Leniency and No-Action' policies taking shape.
On the flipside, participants in sport are advised to review their internal whistleblowing procedures. Renault F1 noted in its submissions to the World Motor Sports Council that it would review its internal procedures on this matter, particularly with regard to its employment contracts. Similarly, Mark Evans, Harlequins Chief Executive, has announced the need for his club and others to develop effective whistleblowing procedures. The Public Interests Disclosure Act 1998 applies as much to sports clubs and organisations operating in the UK as any other company. It is up to them to ensure that their reaction to, and policy on dealing with, employees who come clean is not to their detriment.
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