Episode 3: Can Sport Ever Be Fair?
Professor Sigmund Loland and John Boultbee AM take a hard look at what it takes to make sport fair.
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We all have different ideas of what it means to be 'fair' and who we need to be fair to. Is the way we currently do things in sport fair? Will it ever be? Is it possible to actually be fair to athletes, fans, owners, and the sport itself, all at the same time? And who should be making and enforcing these decisions?
To break things down, host Professor Sam Robertson is joined by Professor Sigmund Loland and John Boultbee AM. Sigmund is a renowned Professor of Sport Philosophy at the Norwegian School of Sports Sciences and a member of the World Anti-Doping Agency ethics committee. John, a former barrister, is currently the CEO of the National Sports Tribunal of Australia and has previously held many leading positions in sport, including Director of the Australian Institute of Sport, Head of National Teams at Football Federation Australia, and High Performance Director of Volleyball Australia.
Together, Sam, Sigmund and John discuss whether and how sport can be made more fair, how technology is playing into this, and the delicate nuances involved in trying to make things fair for everyone.
Want to dive deeper into this episode? Start here:
Response to Commentaries on ‘Caster Semenya, Athlete Classification, and Fair Equality of Opportunity in Sport
(Sigmund Loland, Journal of Medical Ethics)National Sport Integrity Forum 2020 (Victoria University)
Teaching Athletes About Morality in Sport Can Help Reduce Doping (University of Birmingham)
Full Episode Transcript
Intro
[00:00:00]Sam Robertson (Host): The word fairness can mean very different things to different people. When it comes to fairness in sport, our minds go straight to issues such as match fixing, performance enhancing drugs and athlete exploitation. But considerations of fairness also extend beyond the playing field. Areas like equal opportunity, gender, race and socioeconomic background.
[00:00:21] Most of us think we know pretty clearly what's fair and what's not, but there can be much more nuance than you think. What would be condemned as outright cheating in one sport, could be applauded as cunning gamesmanship in another. And the perception of what is fair and reasonable can change substantially over the eras, as society and technology evolve.
[00:00:39] The elephant in the room relates to who we are trying to make sport fairer for. Is it the athletes, the sport itself, the fans, or those with a financial stake? Can we actually be fair to all parties and who should be making and enforcing these decisions?
[00:00:54] I'm Sam Robinson. And this is One Track Mind.
(Music Interlude)
Interview One - Sigmund Loland
[00:01:03] Hello and welcome to One Track Mind. A podcast about the real issues, forces and innovations shaping the future of sport. I'm your host, Sam Robertson, and on this episode we're asking can sport ever be fair?
[00:01:16] My first guest is Professor Sigmund Loland. Sigmund is a Professor of Sport Philosophy at the Norwegian School of Sport Sciences in Oslo, where he was also rector from 2005 to 2013. He's also a guest professor at the Swedish School of Sport and Health Sciences in Stockholm.
[00:01:33] Professor Loland has published extensively in the area of sports ethics and philosophy, and has been a visiting scholar at a number of universities across Europe and North America. He was President of the European College of Sport Science from 2011 to 2013, and is a current member of the World Anti-Doping Agency ethics committee, and the research committee at the IOC Olympic Study Center. He's a lifelong skier and former coach, including at the elite level. For all of these reasons, and many more, he represents a very appropriate person to talk to about this episode's topic. Sigmund, thank you so much for joining us.
[00:02:08] Sigmund Loland: Thank you for inviting me.
[00:02:10] Sam Robertson (Host): Let's start perhaps in quite broad terms and talk about the definition of fairness. It seems to me that if we're going to speak about this topic, it's important to define it first. Now it appears that it can differ quite substantially in both the literature and practically depending on who framed the term and what their intention is.
[00:02:28] For instance, a policy developer may see the question very differently to an ethicist, and an athlete might be quite different again altogether. Now in your work, you've written a lot about various approaches to sports ethics. Do you yourself personally have a preferred definition for the term 'fairness' in sport?
[00:02:45] Sigmund Loland: Yes, I think, as you say, people can disagree on whether a particular action or the use of a particular kind of technology is fair or unfair, but still, I think there are some general ideas that most people share. One idea is the idea of fairness as an individual obligation. So, when you're engaged in a ruled, governed practice, like a sport competition, you are somehow obliged to keeping the rules. And the basic idea behind this is that if you cheat to get an exclusive advantage, you depend upon others rule adherence. If everyone cheats, there is no practice, right? This the classic free rider problem. So cheaters depend upon others' collaboration. And they do this without doing their own share.
[00:03:36] This is the basic and intuitive idea of fairness. Disagreements often come up, whether you're allowed to hold the shirt, holding in soccer, where is the limit? Some would claim this is the limit. Here is the limit. Or they would say that, well, you can hold onto the shirt a little bit more. People disagree. In this sense, there are disagreements, but the basic idea of fairness, that when you engage in a collaboration, in a ruled, governed collaboration, you're supposed to do your share. That is, your fair share. Keeping the rules. Because you depend upon others keeping the rules, for the whole thing to be meaningful. That's the basic idea I think most people can agree upon, actually.
[00:04:19] Sam Robertson (Host): Yeah, yeah.
[00:04:20] Sigmund Loland: Then there is structural fairness. That is, are the rules fair? Is the sport fair in its structure? Structural fairness is usually discussed with reference to ideas of equality of opportunity. Elite sport, competitive sport, is about a particular kind of inequality between persons. It's not about equality, really. Equal opportunity to perform as a means towards measuring, evaluating a particular kind of inequality. Who can perform the best as defined by the rules.
[00:04:57] How can you rank competitors at the end of a competition? The question then is what are the inequalities you want to take away from this evaluation? It's like an experiment, it's like science, isn't it? It's in many ways, you know, you have some confounding variables as, in a scientific experiment. Well, first of all, we need identical external conditions in those sports. This can be a challenge. So you try to compensate. You have wind measurements in track and field. Perhaps the most extreme compensation example is ski jumping. You have an advanced rule system in that sport, where you try to calculate the impact of the changing wind on each jump before you give the end result. So on and so forth. Similarly, in terms of external conditions, you have to measure performance in identical ways. Everyone runs the same distance, they are timed with the same technology, so on and so forth.
[00:05:57] Secondly, you have equipment issues. In many sports, you standardise equipment. In sailing you have strict rules on the boat, in javelin you have strict rules on the javelin, but not all sports are following up to this ideal. In skiing, you don't have strict rules. I mean, there are different qualities of equipment, which to me makes the competition unfair because what you want to measure, the ideal in cross country skiing for instance, it's not inequality in equipment but who is the better athlete? So these are all inequalities you want to take out.
[00:06:34] You have external conditions, you have equipment, but the most difficult question and the third dimension here would be linked to individual inequalities between athletes. It's linked to classification. Should men and women compete together in good sport? In some sports the response is no. Then why not? Well, it's unfair. But why is it unfair? Well, it is unfair that women, statistically speaking, have less predisposition to develop, for instance on the hundred meter dash, explosive strength and speed as compared to men. So then it's unfair to compete together because men have a given genetic predisposition, statistically speaking, of developing more explosive power. So, we classify. And we classify according to age, and we classify according to body size - weight in weightlifting, combat sports - because these are inequalities we do not want to measure. These are somehow given inequalities to an athlete. It's not the result of effort, of training. It's not really admirable being a hundred kilogram boxer versus a 60 kilogram boxer. It's not an inequality where the heavier boxer has this great advantage, competitive advantage. That's not an inequality you admire as an outcome of development of talent.
[00:07:55] So classification is again a big issue of fairness. And these days, you know, with the intersex challenge with Caster Semenya, with women with so-called DST conditions, where you have high testosterone levels, challenging the binary classification system in track and field. Big issues of fairness arise. And again, it's back to this basic question. What kind of inequalities should be eliminated or compensated for in a sport and what kind of inequalities to we really want to include in our ideas of athletic excellence and athletic performance.
[00:08:33] Sam Robertson (Host): You talked about differences in sport there. And I just, as you were speaking, I wonder whether there's a relationship or whether you've observed a relationship between those types of fairness. For example, do you find that some sports culturally are quite strong in certain elements of fairness from a structural perspective, as well as with the way that athletes respond to their personal responsibility? Or are they independent of one another, do you find in most sports?
[00:08:57] Sigmund Loland: Well, I think sport cultures are different. I think, as I said, in skiing, it's a generally accepted part of the culture that your skis differ and Norwegians put a lot of money into ski quality, preparation of skis. It's science, basically. And it takes a lot of resources and it strikes me that Norwegians are really proud about their preparation expertise, the support systems around the athlete. So somehow in skiing, it has become a competition. Not just between athletes, but also between expertise systems around the athlete, supporting the athlete. Whereas in another sport, I mean go back to track and field, go back to the throwing events in track and field, it would be completely meaningless if you don't have strict standardisation rules on the javelin or on the discus.
[00:09:49] So depending on the sports, the standardisation requirements are different. Cultures are different. I guess in sailing as well, you have very strict rules. You have these small margins expert systems can manipulate, but still you have very strict standardisation rules. Whereas in the skiing disciplines, not so much. Because of also the significant impact of skiing factories paying for the sport, because they can profile their own brands of skis. Of course. So this is a mix of commercial interests and a culture that has developed somehow where you accept inequalities in equipment. But basically if you want to measure the better athlete, the better skier, this would be unfair.
[00:10:37] Sam Robertson (Host): I was about to ask you, but you started to touch on it there already. It's like so many things that we explore in sport, the deeper you go, you find it's very complex and there's lots of interrelationships between systems and I think it's no different here. But I was about to ask, why is this accepted more in some sports than others? Is it simply traditional? Is that simply why it becomes accepted? Because it's been with us for 10, 20, a hundred years?
[00:10:59] Sigmund Loland: I think there are two answers to that question. The first answer is yes. Back to skiing, a sport I know well. An example, because in historical ways skiers were responsible for their own skis. To be a good skier you knew how to handle your equipment. It was part of the skill test. Whereas skiing developed as a highly commercial, international elite sport, sponsors came in, expert systems came in. Skis were the responsibility for the skiers, and were taken away from the athlete and taken into the expertise room. And then gradually this transition happened where the responsibility for equipment gradually was transferred to an expert system and stayed that way. So there is a historical tradition here and there. And then there is the commercial impact and the commercial forces coming in.
[00:11:51] Sam Robertson (Host): Yeah, it's fascinating. I just wanted to pick up on some other things that you mentioned at the start there. I tend to not be able to help asking about numbers because of course, it's my own background, but you talked a little bit about technology earlier and you also talked about the ability of some of these sports that are quite well structured in terms of fairness, also having quite specific and quite sophisticated measurement. You mentioned discus, for example. I wonder, as we are able to get better technology and measure things with greater ease and greater specificity as well for that matter, whether that's going to help us enforce fairness more in sports. And it may be enforced isn't the right word, but invoke fairness or make people more aware of it. Is that something that you see a relationship between? If we understand it better by building better models of fairness and have better data informing fairness, is that going to help in not only educating people about fairness, but also obviously governing sports as well? Do you think that'll help?
[00:12:46] Sigmund Loland: Hmm, well, you have two ways of measuring performance in sport. Simplistically speaking, you can measure performance in exact, physical, mathematical entities like metres, seconds kilograms, or you can measure in sports-specific entities defined in the rules. So each sport, like goals, games, points in tennis. This is a different way of measurement, not the exact, mathematical, fiscal kind. The mathematical, fiscal kind is the more accurate one. And one could think of even more exact measurement technologies here, as you indicate. So what would that do? Well, if a performance is supposed to be something controlled by the athletes, something admirable, and inequality in two performances is supposed to be based on one athlete being better than the other athlete in those things you can control, and you keep on dividing these exact units in even smaller margins - in hundreds, thousands, millions of a second - you end up measuring inequalities that nobody, no human, can really control. So there is no real athlete impact. You leave it somehow to chance. And what is the point with that? It may be interesting, it may not. As long as you know what you're doing, it can be more accurate. But sport is not a scientific experiment, is it?
[00:14:12] If you go into the games, like let's say soccer, of course you could have much more exact measurement. If you want you can have a judging panel. One goal gives five points. It's a brilliant attack. It's fantastic. Tactical technical performance. Another goal is a self goal, it takes no performance really and gives half a point. So that's a much more exact way of measuring performance, but you don't want to do that in soccer, do you? Because the fascination with the game is also the openness to chance, to luck, to things teams cannot fully control. So in one way you can enhance exact measurement, and in fairness, in a particular sense of the word, scientific fairness you may say. But if you take this too far, you depart from the nature of sport.
[00:15:02] Sport is not a scientific experiment. Perhaps one of the core ideas to explain our fascination with sport is that it mirrors life, in many ways. It mirrors an open universe. You don't want to control everything. Part of the skill test in sport is to see how athletes and teams cope with chance. You have an unlucky goal early in the game, a good team stands up, you know, they fight back. They strike back. A poor team is demotivated by the first unlucky goal, they do not struggle back. They do not stand up. So do you want this scientific-inspired measurement in performance in these sports? Probably not. Here is where sport differs from a scientific experiment. Sport is based on a different logic, basically.
[00:15:49] Sam Robertson (Host): Yeah, I think I agree. I think there's a consideration with respect to, just because something can be measured very specifically and very accurately doesn't mean that you should measure it. And so my attention turns to not being a better measurement per se, but being a more meaningful measurement. And so we should be measuring things that mean something, rather than because we can do it in a very accurate sense. You touched on something else towards the end, and you use football as an example, and I think that's a really good example of a sport that is certainly grappling, from what I can see, with its use of technology and particularly to govern fairness. And obviously, culturally, it's a sport that as you mentioned, has pushed back on certain elements of technologies for that respect. If technology invoked a number of changes in how we could govern fairness, how could a sport stay up to date with them? How could they operationalise them so quickly? Because when I look at the way that sports often make changes to the way they govern themselves, you see it almost hitting a crucial or critical juncture, a high profile one-off incident causes them to respond. It's generally less incremental. Is that something that you would agree with?
[00:16:56] Sigmund Loland: I would agree, absolutely so. And you mentioned soccer, which may be a good example with the new video assistant referee system, the VAR system. They implement this to enhance fairness basically, or to correct referee errors. Who would disagree? Some decisions in a soccer game, in ball games, are yes and no decisions. I mean, these are factual questions where you can, if you have the right technology, you can make the correct decision. Was the ball in or was it out? Was it over the goal line or was it not over the goal line? Leaving this to referees and to referee errors, perhaps with the implication of falling out of a big tournament, missing the World Cup final, not good for the sport. And not good for the referee either.
[00:17:42] So who would reject technologies that can correct those mistakes? Well, a lot of people actually reject that technology based on some kind of nostalgia, I guess. And I wouldn't support that. I would support technologies that can enhance fairness, like the VAR technology. But other referee decisions have to be made on good judgment and you need competent referees there and then, so technology can never replace a referee in a ball game. It can never replace the good judgment of an expert referee. The expert referees can evaluate the intention of a player. They evaluate a lot of things. But some issues, like the factual ones, should definitely be measured by technology. That would make sport more fair.
[00:18:28] Sam Robertson (Host): I know we haven't talked about any real specific issues of fairness in sport, in particular, the most topical ones right now and I know probably most of the listeners will think of when they think of fairness. They probably think less about structural fairness and more about things like performance enhancing drugs and equipment, which we've talked about a little bit, and gender, which you also mentioned earlier.
[00:18:49] Sigmund Loland: You mentioned drugs, doping. Today, a series of drugs are banned for athletes. If drugs are on the banned list and you engage in sport and use them, you break the rules, basically, you cheat. And the reason for cheating is that it can pay off. It can give you a competitive advantage, provided that the majority of athletes do not cheat in a similar way. And this is the classic free rider problem, as I mentioned initially. It's unfair, but the bigger question here is not a question of whether you break the rules. It would be the philosophical question of whether these drugs should be banned at all. Should drugs be banned in sport? Performance enhancing drugs.
[00:19:32] There is a big international debate here, among philosophers at least, about whether in the near future we will live in societies where use of drugs, non-therapeutic use of drugs, will enhance, will become commonplace? It will enhance work performance, enhance quality of life for the elderly, enhancing concentration, physical performance, fitness, enhancing sexual ability. I mean, some of these drugs are already here, aren't they? So are we moving into a society where the use of drugs becomes commonplace and it's very difficult for sport to be some kind of clean island in a polluted sea? Who knows, but definitely this will be a big challenge lying ahead of us. And I guess we might be in it already.
[00:20:20] And one thing is the conventional drugs. We move into an era of individualised medicine, into an era where already today you have gene editing techniques like CRISPR technology, where you can more easily intervene at a very early stage, genetically. And somehow we can imagine constructing genetically the ideal talent for a particular sport. So how can we deal with that? Let's imagine a child being born with this fantastic talent, genetically constructed talent, for let's say, the shot put. It's a healthy child, it has a good upbringing, it's fair, it's a moral person. The grown athlete uses no drugs, breaks no rules, but this athlete is genetically enhanced from the very beginning. You can't exclude this athlete from sport. It's a brilliant athlete. It's a fair athlete, a good person. So this just shows you that sport ethics has its limit. What we enter now is really the ethics of human enhancement. And these are big questions in bioethics. We're already facing some of these questions today, as I said, and some of these technologies are used medically to cure illness, to improve problematic genetics. This is fantastic. It can give people better lives, but gradually also there will be attempts to use the mass enhancement technologies, and this will cause considerable challenges to sport.
[00:21:47] So some see sport as somehow a front zone in this development, like in Formula One car racing you see the front zone for new car technologies. To a certain extent, I'm afraid, at least sport can become some kind of Formula One of human biology, a Formula One of human biology enhancement. This really challenges sport as we know it. And sport is aware of the challenge, there is a lot of work going on. How can we deal with genetic technologies? How can we test for a potential use of them? What would be the challenges? I mean, from local genetic manipulation, injection of genetic material in part of the body, that's like more conventional doping and the big issues would be the basic manipulation at the very early level, at germline level. And there are extensive ethical issues and they have to be dealt with in more extensive manners than only within sport ethics.
[00:22:45] Another topical issue is the fall, what might be the fall, of the binary distinction between men and women. Athletes with so-called differences of sexual development, or having sexual development syndrome, DSD athletes they're called, as they are referred to by World Athletics. The issue here is heightened levels of testosterone. Having systemic impact on the body and on performance potential. And at this stage, the current rules covering, in particular, middle distance events, World Athletics from their perspective, these athletes in the women's class have an unfair advantage. So they are not allowed to compete in the so-called protected class of women. Others say that this is just another example of a unique genetic talent. Sport is all about talent and development of talent. So why can they not compete? And there is no such control of men. Whereas there are athletes in other sports having mutations, genetic mutations, that sometimes give them advantages. You end up in a really messy terrain when it comes to classification. So what will happen in the future? Will there be another class, a third class? Will we go back somehow? Like in paralympics where you're classifying the big events by individual analysis of performance potential. So this is really a stage in the development of sport where we do not really clearly foresee what's going to happen.
[00:24:18] Another issue, this is a classification issue too, is a project of technological development. This is like the Oscar Pistorius case, athletes with prosthetic limbs, or advanced technology implanted in the body. So once upon a time, what they found has helped for technologies for disabilities, suddenly Pistorius comes along and people see his prosthetic limbs giving him a super-ability. So these athletes move from being disabled to becoming super abled. And there was a controversy, whether he should be able to compete with able-bodied athletes. I think prosthetics, implants, performance-enhancing surgery, what have it, we have them already today. This is also only the beginning of a development that will pose radical challenges I think for sport in the future. Again, as I talked about drugs, all these remedies, these technologies, are good in the sense that they can make life easier for a lot of people - higher quality of life, take out disease, illness, suffering. They can enhance quality of life, but they're also challenging. Like all other technologies, technology in itself is neutral. It's up to our good judgment how to use technologies in sound and good ways.
[00:25:35] Sam Robertson (Host): As you're speaking, I'm considering all these different factors could go into how you classify an athlete and you almost classify so much, you end up with every athlete in their own classification. So that's something that's kind of coming to mind there.
[00:25:48] I'm also often guilty of being called quite cynical and when you were describing the first part of the scenario earlier, around the ability and perhaps the inability of governing bodies and leagues and organisations to keep up to date with the changes that are happening across all sports. It's hard not to get a little bit, not depressed, but to get a little bit unsure about whether sport can ever keep up with that, and I think that came back to one of the questions I asked you earlier. What is your mood with this? Are you concerned by it? Are you downtrodden by it, or are you hopeful that this could be overcome or at least managed?
[00:26:23] Sigmund Loland: I guess per definition I'm an optimist. So I think, the whole drug issue, it's an example of the global institution of sport attempting to join forces to face a big challenge. Public authorities, governments and sports, with the IOC, established the World Anti-Doping Agency in 99. And that's an example of a step ahead, a significant step ahead, where they unite forces to face what is considered one of the most serious challenges to sport. So is it successful? Some people say it doesn't help, the cheaters get away with it. Of course, there's a lot of drugs out there. You can never catch everybody, you can never catch even close to everyone. Probably not even a margin of everyone that cheats. On the other hand, what would the alternative scenario be? To open up, to legalise? In the state of the world today, the athlete would be the vulnerable part in such a system, as in elite sport systems so many people depend upon success of the athletes. And if the whole drug issue opened up, the athlete would be a really vulnerable person. Vulnerable in the sense of being exploited, from very early age being exposed to drugs of various kinds, and so on and so forth. We've seen historical examples of oh well what would happen if sporting systems do not take the drug issue seriously and ban drugs? So that is, as I see it, definitely the bigger evil in this situation.
[00:27:59] Sport will try to keep up, but shouldn't live in an ideal bubble. The ethical discourse, question of what gains support and what is a problem, how technology can pose problems for sport. This would be ongoing continuously, these discourses in international sports federations. This takes, of course, competent leadership. Sometimes you can really question the competence of this leadership and whether they are aware of what's going on, how to protect integrity of sport, to be proactive. But that's another discussion, the competence in the international sport leadership. So, I can't give you a very clear answer to your question. Sport keeps on struggling.
[00:28:42] Sam Robertson (Host): Yeah, I mean, I think the alternative of giving up is not one that any of us want to face. And so I, even with my cynical nature, I'll agree with you and I'll be optimistic on this this question.
[00:28:52] Half an hour has gone past, and I know I need to let you go, and I think there's certainly with respect to a lot of the things we've touched on very briefly today could be well and truly multiple episodes on their own - performance-enhancing drugs, equipment, gender, technology. But It sounds from your last answer that you think that sport can be fair or it is fair right now, and is that a fair assumption?
[00:29:12] Sigmund Loland: Yeah, I would say it's as fair as you can expect. And I do not believe in those who look at the world and see a moral decline. I see a different world. Much more is at stake in elite sport, when competitors meet. So you can look at it this way: it's quite impressive how fair sport is considering the stakes - what is at stake in terms of profit and prestige. We tend to idealise the past. In the past, everyone was gentlemen and gentlewomen, there was no trash talking going on, there was no this, there was no that. I think this is completely wrong. In the competitive arena, these days you have a hundred, well, in the past, you didn't have cameras at all, recording what was going on. Today you have 10 and 20 and 30 cameras covering every little move of an athlete. You can even interpret what they say to each other, they cover their mouths these days, right? So, sport is much more transparent. Sporting institutions too. Although much can be said on the critical side, they are more democratic. They are more transparent. They are more exposed to public criticism. Everyone understands that they act in a political landscape and sometimes take political positions. So more or less fair sport, that's a different question. Fairness is still an ideal. I don't think it's less fair than it used to be, but it's different. Different challenges, different responses.
[00:30:43] Sam Robertson (Host): No, I think you made a really good point there. And we do tend to idealise the past and I think we all get guilty of that. It doesn't matter what age we are, we always look back at, particularly our childhood I think, and how sport was when we were children.
[00:30:55] Sigmund Loland: Well, sport in the past excluded women, was racist, excluded amateurs, workers couldn't take part. Come on. We've come a long way from that point, at least where merit actually matters. There is still racism in sport, but to a much lesser degree than say 50 years ago, 20 years ago. There are drugs, but what about the East German systematic drug use? Also in the West at that time? No controls. One could perhaps argue, in spite of the pharmaceutical industry producing much more technologies to be used, perhaps there is even less use now than in the 1950s and 60s and during the Cold War. We don't really know because we have no exact image of the 50s and 60s. Neither do we have it all today. Prevalence? We don't know that much, but again, we should be careful with idealising the past. Things are different. We still have ethical challenges, but they're different than 20, 30, 40, 50 years ago.
[00:31:57] Sam Robertson (Host): Well true to form you've finished in an optimistic manner, I think, and thank you so much for joining me today. It's been enlightening and, again, there's so much more to talk about, but I think this is a good start and thank you once again for joining us.
[00:32:09] Sigmund Loland: Thank you for inviting me.
(Music Interlude)
Interview Two - John Boultbee
[00:32:16] Sam Robertson (Host): My second guest on the episode is John Boultbee. A former barrister from Sydney, John is the new CEO of the newly established National Sports Tribunal of Australia. John is a member of the Order of Australia and a leading sport administrator who has worked across multiple sports. Some of these roles include Director of the Australian Institute of Sport during the highly successful and memorable Sydney Olympics era, he has been the head of national teams at Football Federation Australia, and High Performance Director of Volleyball Australia, as well as a long career in rowing. John has also held countless board positions, most recently including roles with Crossing The Line Sport and The Athlete Advantage, both of which are organisations dedicated to athlete wellbeing and a transition of athletes for a life after sport. Certainly that's one of the more experienced resumes I think we'll have on the show. John, thank you very much for joining us.
[00:33:05] John Boultbee: It's a pleasure, Sam, looking forward to it.
[00:33:08] Sam Robertson (Host): Great. Well as we've talked about, you've been involved in sport for a career and a lot of different sports, and I'd like to really explore that today, particularly in some of the anecdotes and some of the things you've noticed change over your career. But coming back to the task at hand, which is the topic at hand should I say, which is fairness. Certainly the general public often think of fairness as relating to on-field, but of course it's not just the on-field and governance of competition, it also extends to the off-field conduct of staff, officials and the broader industry itself. Now, your background as an administrator in a whole range of sports, but also as a lawyer, must give you a really well-rounded perspective on how these challenges can affect different stakeholders. Just how coordinated an effort is required in order to address these issues of fairness from diverse areas, from sport rules, doping, arbitration, all the way through to corruption and exploitation, for that matter.
[00:34:01] John Boultbee: Yeah, I think it is very much an area where a coordinated and well-planned and systematic effort is required. I think most people think of fairness as being what happens between two athletes or two teams, or a number of athletes, number of teams. But I tend to see fairness, or sadly unfairness, becoming more of an issue off the field, out of the court, out of the pool, or wherever, where it's a question of whether the sport or those running their sport, or those in official positions, are giving the athletes a fair go, or other people are fair go. So sort of institutional unfairness, I think is one of the big issues and those whose role it is to ensure that sport is fair need to be held accountable as well. So, it's a question of setting up an even playing field, where I think a lot of unfairness happens, and it's a product of the different power of the athlete and the sporting organisation and the sporting official. And the sporting officials, and the organisations who have the power, need to be applying it fairly and consistently and without bias, to the benefit of the athlete, but, more importantly, to all athletes.
[00:35:28] So I think it's an area that warrants examination to ensure that the athletes are able to compete in fair conditions. And that happens before they hit the field or sadly, often, after they finished the competition and the questions arise. So that's an element of fairness or unfairness that I think requires quite a bit of discussion and thought.
[00:35:51] Sam Robertson (Host): There's a lot you touched on there and particularly about athletes when they finish competing and training and I want to explore that, but I think we'll come back to that a little bit later on. We didn't actually mention the word responsibility, but I feel like that's a word that you talked about with administrators, but it's also obviously the responsibility of athletes to be fair and equitable, on the field of play and off the field play. Do you feel like people in these roles, from athletes all the way through to administrators, have adequate training and expertise to adjudicate on fairness? Or is that something that you see as a role for the National Sports Tribunal, which is obviously something you've only recently become part of? There's probably a two-part question there. Is it part of your role or is it part of their role as well, to be educated and have the necessary skills to deal with those situations?
[00:36:39] John Boultbee: It's both. The organisations and the people who are running the organisations need to provide the education, and the wherewithal, for athletes to be responsible and to conduct themselves in fair conditions. I'm a bit of an optimist and I tend to think that most athletes do that - where it has been set up in a way that they can compete fairly and deal with their opponents fairly, on the field. So part of it is education, part of it is setting up the rules of the sport. That again, to act fairly between the athletes and enable the athletes to concentrate on their physical competition and not have to worry about whether they're sailing close to the wind as far as the rules are concerned, or respecting their opponents. It should be set up in a way that becomes natural.
[00:37:36] The other side of it is, again, in the Sports Tribunal, unfortunately we end up looking at situations that are the result of unfairness happening or an athlete being unfairly dealt with by those who are in control. So there's a responsibility by both. And I think the athlete is more likely to have concern about the fairness that's meted out to him or her by the authorities, than by the opponents. And it's a major part of unfairness that I think is a concern for sport.
[00:38:13] Sam Robertson (Host): And again, you might comment on this a moment, given you have been involved in so many different sports, whether there's a cultural element or at least a traditional element to some sports accepting or having more inherent unfairness, or fairness for that matter, built into their structure and also their culture.
[00:38:29] And you might comment on that in a moment, but before we go into it much further, I just want to talk a little bit about the National Sports Tribunal and why that was such an important initiative in ensuring fairness for sport. I mean, we've spoken a little bit about the responsibility of the athlete already, but also of organisations and sport. Just before we zoom in on some of these smaller issues, not smaller issues, but narrower issues, do you want to talk a little bit about why the Tribunal was so important to be set up?
[00:38:52] John Boultbee: The direct reason that the Tribunal was set up, relates to the issues that happened back some years ago, in relation to the doping scandals with Essendon Football Club and Cronulla Rugby League Club, where it was apparent that there wasn't independent, transparent, consistent dealing with significant integrity matters, that ultimately affected the athletes and ultimately the athletes had to pay the price for. And this I think is the issue. That those in charge, and bodies in charge, have the responsibility to remember that their role is to provide a safe and fair environment for the athletes. And part of that safe and fair environment is that when something goes wrong, the athletes will be dealt with fairly, equally, consistently and independently - when a sanction is applied, or a dispute arises - and that's very much why the National Sports Tribunal exists.
[00:39:56] Interestingly, our jurisdiction, perhaps the major part of our jurisdiction, is where there's a dispute between the athlete and the sporting body. There's also a jurisdiction where there's a dispute between two persons, generally two athletes, but that's less likely to come to a tribunal hearing than where the athlete feels he or she has been hard done by, by the sporting body or the sporting body is taking action against an athlete for breach of the sporting body's rules. And the point I am at pains to make is that the sporting body has to remember that sport is primarily, as an elementary thing, is about the athletes who are playing on the field or wherever their sport is taking part and the interests of the sporting body, or of the sport, or of the board, or of the management, need to be secondary to those of the athletes. And the unfairness arises in an institutional and a government sense, because the power is all with the sporting body. And the people wielding that power sometimes are more influenced by 'the good of the sport', as they call it, or the reputation, or the finances, the money that's coming into the sport, than the situation of the athlete himself or herself.
[00:41:27] It's a generalisation, but I think a lot of, if we're talking about fairness, to me that's where a lot of unfairness needs to be dealt with. And the unfairness might be where the sporting body needs to make rules, which provide for fair and equal competition, but haven't done so effectively for one reason or another. And so the athletes are not playing on a level playing field. Or it may be that the way an athlete is dealt with due to something that's happened, on the field or off the field, isn't done in a way that is consistently remembering that the athlete is the reason that sport exists.
[00:42:09] Sam Robertson (Host): You touched a little bit throughout that response there about the, again, the responsibilities and the issue that the athlete might have more with structural unfairness or relating to the inherent nature of the sport, rather than something that their opponent may do to them, which is bordering on either unfair or cheating. And I wonder whether it's something to do with the scalability of that, is part of the reason. For example, an organisation can make a single decision which can affect the entire participation population of their sport. Whereas an athlete, theoretically, can only ever influence another athlete that are competing with them on a field of play. And I think that may also explain part of it.
[00:42:46] But just picking up on that thread though, obviously, if you pick up different sports, they all have elements of unfairness, by definition, inherent in them. You think about some of the large professional codes, I won't pick out any here in isolation, that don't have salary caps. Whereby one team is well-resourced at a much, much larger level than their opponents. So that's an element to me that seems quite unfair in certain competitions. And that's obviously why some organisations in some competitions have salary caps. But I'm interested in exploring some of the other forms of fairness, which maybe aren't so apparent to us unless we sit down and think about them. That athletes maybe accept without even realising. And one that comes to mind is certainly in the doping space. In the criminal law area, for example, as you would well know, that the burden of proof is on the prosecution. Now, in doping, it seems to be the reverse. And again, I'm probably asking you this because you know more about it than I do, but the burden of proof is on the athlete to prove themselves innocent. So it's kind of reversed in sport. Is that something that you're comfortable with, that you think is the right model?
[00:43:49] John Boultbee: So it's a model of convenience, and convenience for the sporting organisations and convenience for those who have to police doping, more than a provision that is to look after the athletes themselves. Now, the argument against that would be, there's this strong incursion into the normal presumption of innocence against an athlete who's found with a substance in their body, to protect the other athletes. And it's justifiable to take measures to ensure that you are able to effectively deal with the athletes who have been found to have a substance in their body or to be doping in another way.
[00:44:34] But when you're dealing with an individual athlete, that athlete's rights need to be protected and the bodies who are in control need to bend over backwards to protect that athlete, as the criminal law does. And there's a saying in criminal law that it's better for 10 guilty men to go free than for one innocent man to be imprisoned. That's an extreme view. And it's also an extreme view to say that there should be more recognition of the athletes' rights to argue their case than perhaps is there at the moment. Now, I'm not suggesting that the World Anti-Doping, that WADA, and the national anti-doping agencies, aren't doing as much as they can to get the balance right. But, the work needs to be done in education of athletes. And it needs to be consistent and thorough. The work needs to be done in education and control of those in charge of athletes to ensure that they are acting with integrity, but an athlete needs to have the reasonable rights to defend themselves in doping cases. And there's great incursions into those rights at the moment.
[00:45:54] For example, if a substance is found in an athlete's body, the athlete has to establish that it was unintentional by proving how it got into their body and proving that it wasn't consumed for the purpose of performance enhancement or cheating. Now that's difficult to do in some circumstances, and it won't always be possible for the athlete to prove that, but at the moment it is perhaps weighted a bit too far the other way. It's a real difficult question because an athlete who's going to cheat is going to be someone who's going to be easily happy to construct a false story about how the substance came into his or her body. Whereas an athlete who's made a mistake is actually going to be less prepared to argue against the presumption of intentional use of the drugs. So, some of it's there to protect the innocent athletes, the clean athletes, against the athlete who is cheating, but we have to be careful that it's not there in order to be more convenient and make the role of the police in doping, namely, the anti-doping agencies and the organisations, make their job easier. And they're the ones making the rules, and it's no surprise that the rules are often made to favor their convenience.
[00:47:23] Sam Robertson (Host): Thanks, John, that's incredible insight and it's certainly quite an area that I don't think about a lot and it certainly got me thinking as you're speaking, about the attraction, or lack of attraction, that some might have for being an athlete, particularly in sports where you don't have a very long career, you're not particularly well remunerated, and you're facing some of these conditions. And we've only just touched on one now that are quite difficult and quite stressful and probably quite open to manipulation by nefarious types as well. I'm not sure you've seen any examples of that.
[00:47:52] Just while we're on that topic, I'm really keen to explore your experience across different sports. And I'm sure you've seen a lot in your time, but are there are some other less commonly known, or some other great anecdotes that you've got throughout your career, that relate to what we're talking about today? Of either great fairness or unfairness that you've seen in either your time in the legal area or in administration of sport?
[00:48:14] John Boultbee: Yeah, there are some, but again, they relate to the balance of power between the athletes and the organisations in control. That can lead to unfairness between athletes because those in control aren't effectively providing rules, which protect the athlete from an unfair situation. An example that goes back a while, in the case of rowing, it goes way back to 1983, 1984, when somebody developed a rowing boat where instead of the seat the rower sits on moving, they had the riggers on the side of the boat moving and the seat staying stable. So that the boat wouldn't rock as much, because the body's not moving so much. And it was able to produce extra speed. Very easy to see the extra speed that came out of it. But of course, it was a huge change in equipment. And a change, which, obviously, favored the more wealthy clubs or in the international scene, the more wealthy nations to buy these new boats, which were quite a lot more expensive than the boats that had been available otherwise. And putting athletes in unequal and unfair conditions.
[00:49:33] So what was needed, and thankfully the International Rowing Federation took the appropriate step, that was to control that. So that the equipment that was being used was quite equal and it wasn't a matter of the wealthy being given the opportunity to go faster and the less wealthy having to row in slower boats and try and beat the wealthy. So, the sliding rigger was banned there and then, and hasn't been seen since. And that's where an organisation can take the right step to ensure that, not the playing field there, but the situation on the water, was equal. And some of the athletes were unhappy about that - why can't we row in a faster boat? And the reason is because it's not something that's available to everyone. And I think there's probably other areas where that's happened in other sports as well, that it shows a responsibility on the organisations to look after the fairness of the sport, because there are a lot of people being paid a lot of money to take whatever advantage they can to do better go faster, be stronger, than another athlete. Not because the athlete is better, but because there's more finance or funding available to do that. And your example about salary caps in major professional sports goes to the same point.
[00:51:01] Sam Robertson (Host): Yeah, I keep thinking as you're speaking there about equal access. That to me, is what this is all about, equal access. So you differentiate the example you gave then, say the Dick Fosbury flop, where all he had available was his imagination and body. And yes, that's still a technology, but again, it's equal access. Anyone could do the same. And indeed, obviously they went on to replicate that technique.
[00:51:22] Just as we bring the conversation to a close, I know that we could probably speak for hours on this, but I just wanted to talk about the key challenges for the future. As I said in the introduction there, the Tribunal's a new initiative, although you've worked in a related area for a long time. What do you think, over the next couple of years, are going to be the big challenges, not only for fairness in sport, but particularly you and your role as the CEO of the Tribunal.
[00:51:45] John Boultbee: I think one of the biggest issues is the right of the sporting organisations to control what the athlete does, off the field, or more importantly, in his or her private life. It goes to football players who misbehave, a number of other things, but again, I'm harping on a bit about the inequality between the athletes' situation and the sporting organisations' situation and the people who are running the sporting organisations, where they have the power to make rules that are going to put obligations on the athletes, which we really have to wonder the right things for sporting organisations to do. And the misbehavior area is probably the main area, in that regard, where the sport will say, we are going to control what you do in your private life to maintain the image of the sport, the reputation of the sport, and look after the sport itself, putting the sport above the athlete. Whereas, really, what they're largely talking about is the reputation of those people in charge of the sport and the financial income into the sport, which may be affected by that.
[00:53:03] And to me, it's a big issue and there's not an easy answer to it. If you say to a footballer, we're going to pay you one and a half million dollars a year and for that you have to do this, which we want you to do on the field. We also want you to do stuff off the field, but there are some things we don't want you to do. And one of them might be, you're not allowed to wear a red shirt on Wednesdays. And the athlete says I'll sign that, one and a half million dollars a year. I'll do my best on the field and off the field. And then turns up in a red shirt on Wednesday, and there's a strong argument to say any employer is entitled to impose that sort of condition, be it reasonable or unreasonable on the athlete, because of the money that's being paid. But then it trickles down to the less wealthy athletes and the less wealthy sports where there is a strong feeling that we have to protect the reputation of the sport and make athletes role models in society, rather than role models on the field. And where the line is drawn in that respect is a really difficult situation. And the athlete's position is an unfair position, as against that of the sporting body. And that sort of fairness question is one that is not often thought of being a question of fairness and unfairness, but it really is, when you're looking at the power situation of the athlete as against those in control.
[00:54:36] Sam Robertson (Host): Yeah, I think you used an interesting example there of the red shirt, and I do find as an observer that the more, sometimes arbitrary, conditions that are put on athletes by organisations the greater rod they're creating for their own back in many respects, because the more you add, the more you can sometimes look for more things that you might be missing in it. You can get down a rabbit hole very quickly.
[00:54:57] I really appreciate your insights on the show. And thank you so much for joining us.
[00:55:01] John Boultbee: It's a pleasure, Sam, and thanks for having me.
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Final Thoughts
[00:55:10] Sam Robertson (Host): And now some final thoughts from me on today's question. Fairness in sport is clearly a joint responsibility. Not solely for athletes to consider, but also governing bodies, staff and administrators. It goes hand in hand with consistency, a lack of bias and provision of equal opportunity. Whether it's Lance Armstrong, Tonya Harding or Maradona's hand of God, it is often the high profile, discrete examples of unfairness that live long in the memory.
[00:55:37] But it seems as though a far greater threat to the very fabric of many sports are not cases of single bad actors, but in the structure of sports themselves. Unequal access to equipment, wildly differing wage budgets, and subtle yet persistent conditions that result in systemic disadvantage. These have a much larger potential influence on a whole range of negative outcomes for both athletes and stakeholders. So when it comes to those elements of fairness that matter most, sports should perhaps be turning their focus to their own inner workings before adding to the already long list of expectations placed on athletes.
[00:56:12] But as both guests mentioned, there is much cause for optimism. The increased levels of attention on most sports, due to growing numbers of cameras, fans and media, combined with an enhanced ability to develop more precise working models of fairness, should also mean better monitoring and governance. And there are a growing number of organisations leading the way in ensuring that athletes are not simply coerced into upholding fairness, but educated on both their rights and responsibilities.
[00:56:38] Above all else, these conditions should be pursued whilst ensuring that all participants are protected from unreasonable risk of harm. Whether we believe that sport can ever be fair or not, I think that is something that we can all agree is worth pursuing.
[00:56:52]I'm Sam Robertson and this has been One Track Mind. We're taking some time off for holidays prior to our next episode, but we'll be back the following week where we'll be asking: is technology ruining the athlete-coach relationship?
Outro
[00:57:05] Lara Chan-Baker: One Track Mind is brought to you by Track and Victoria University. Our host is professor Sam Robertson and our producer is Lara Chan-Baker - that's me!
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[00:57:47] Thank you so much for listening to One Track Mind. We will see you soon.
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