Monday, 23 March 2015

Book Review: Waterhouse-Watson, D. (2013) Athletes, Sexual Assault, and ‘Trials by Media’: Narrative Immunity. United Kingdom: Routledge.

Waterhouse-Watson is a academic who writes extensively about sexual violence and the media.  This review is about her book on the ‘Trial’ of athletes by media but I will also refer to the work of Anna Krien Night Games: Sex, Power and Sport (2013).  They both cover sexual violence associated with sport in Australia and take some of the same examples.  Here is Waterhouse-Watson’s review of Krien - that she is insufficiently feminist and too close to the accused footballer.

Waterhouse-Watson book opens with a note on Terminology and - spoiler alert - concludes with an Afterword in which she declares herself once to have been the No 1 fan of the Aussie Rules team the Hawthorn Hawks but now has hung up her scarf and cancelled her membership.  It is sometimes disparagingly said of sports journalists that they are fans with typewriters perhaps we might now warn of academics that to study their favourite sport will end in disillusion.  Sports journalist Walsh is eloquent on the disappointment he felt in discovering his beloved Lance Armstrong was a ‘drugs cheat’, and then resolute in pursuit of him.

She declares in her Introduction:
Disproportionate numbers of elite athletes, at high school, university and professional levels, have been accused of sexual assault as compared with men in the wider community. (2013:1).
She gives no reference for this but a few pages later she later mentions Crosset and BenedictMessner (2002: 26) notes that Crosset found in 1995 ‘athletes’ made up 3.7% of the student population but accounted for 19% of sexual assault reports.  But that 30% of the athlete population were in the money-spinning, contact sports of basketball, football and ice-hockey and they accounted for two thirds of those sexual assaults.

Crosset (1999) is very specific in his abstract:
The current sociological debate on whether male athletes commit more violence against women compared to those who do not participate in organized sport is unproductive and simplistic. Theoretical constructs such as athletic affiliation and rape culture are too broad to capture the unique dynamics of athletes' violence.
And yet Waterhouse-Watson inclines to these wider tropes.  However, she is not a sociologist, letalone a criminologist, but a narratologist and does not rely on those matters.  She seeks to show that footballers are given ‘immunity’ by the media in its ‘trials’ of the players by the ways in which they are spoken of.  Benedict is seen, perhaps correctly, to incline to viewing the actions of sports stars as arising from individual pathology unconstrained, then covered up, by the authorities.  Messner is treated more kindly but still seen to ignore the failure of the criminal justice process.

Waterhouse-Watson states that 55 elite AFL or NRL players since 1999 had ‘been involved in alleged rapes’ (p2) and in an endnote (n2, 219) makes the point that many were not named and that there may be overlaps.  She gives an Appendix (1) that sets out some of that detail but doesn’t refer to that in the body of the text and only in a later end note.  The appendix itself adds some further confusion as both team members and non-playing staff are mixed in (not her fault as relying on news reports).  A quantitative summary and some discussion of methods might have helped.  My small effort in that direction follows.
She lists 22 incidents (that may cover the 55 figure mentioned above) from 1998-2011 plus six others believed to be ‘before 2009’.  The greatest number of men mentioned was an incident in 2002 involving ‘a dozen Cronulla Sharks’ and 2002 the year with the greatest number of incidents involving 12 men in total.  And in the text (p2) 2004 is noted as the third year in a row when the opening of the season began with an alleged sexual assault.  In the 28 incidents in total: 19 ‘no charges’; 4 show the victim pressed no charges; 3 ‘charges laid and later dropped’ and 2 acquitted at trial.
She properly notes the Ched Evans case (and the timing is fortuitous in enabling her to incorporate it) and contrasts it with the Australian cases, in that he was convicted.  Evans, a   Wales football international, was jailed for five years in 2012 after being found guilty of raping a 19-year-old woman at a hotel.  He maintains his innocence. The facts of his case seem very similar to those that she covers. One can see that Evans may think that since his circumstances are no different to cases he does know then he too is innocent.  No supporter of rape, McKinnon notes:
.. men who are in prison for rape think it’s the dumbest thing that ever happened …It is just a miscarriage of justice; they were put in jail for something very little different from what most men do most of the time and call it sex.  The only difference is they got caught.  That view is non remorseful and not rehabilitative.
Waterhouse-Watson does not quote McKinnon, nor when, she discusses Mike Tyson, does she mention Tony Jefferson who has written about as a pro-feminist.  This is a shame because one weakness of the book is the issue of race and ethnicity and it might have assisted her discussion of the footballer’s body (ch 4).  Ethnicity is discussed in respect of some players from the indigenous communities (p 86 and 158) but they are seen largely as ‘footballers’ so receive the immunity due them (chapter 2). 
The first mention of Tyson is aligned with his attorney at appeal, Alan Dershowitz’s, claim that, ‘Whenever I come into a case my client has already been tried and convicted in the press’ (Chancer, 2005: 134). Here Waterhouse-Watson doesn’t pick up enough on the issues of ‘race’ or that Tyson was found guilty in a criminal justice ‘trial’.  Deadlines mean she missed that Alan Dershowitz himself is currently actively contesting sex accusations made against him.
In Chapter 3 she notes the silencing of women victims in both the legal and media trials but this would require a change in the law and the willingness of women to speak out.  Later (p 169) she notes how ‘Sarah’ a victim is allowed only to talk on a TV show about her personal experience but experts and others get to talk about ‘rape’ and ‘football’.  However Krien mentions one young woman Kimberly Duthie, a 16 year old school girl who willingly slept with two St Kilda players and had a relationship with a third.  She was briefly a media sensation when she released naked pictures of the men. She blogged as ‘The small girl, with a big voice’ and still has 13.3k followers on Twitter as @NotASchoolgirl.  She refused to be silenced and possibly because she was voicing the ‘Party Girl’/‘Groupie’ was given much media attention.  Krien is not condemnatory or celebratory but tackles the issue; Waterhouse-Watson does not.  However, she touches on the matter in this journal article.
In chapter 4 on the footballers body it is suggested that the automaticity of and the concentration on the athlete’s body means that whilst the actus reus may be present the mens rea is not.  He is a weapon.
Chapter 5 concentrates on alcohol and team building and brings no surprises; but in modern professional sport it should, perhaps, be more surprising how much alcohol abuse still occurs.
In Chapter 6 she uses Messner (2002: 157/158) to dismiss the ‘education’ offered by the clubs and authorities under their programmes like the AFL’s Respect and Responsibility or the NRL’s Play by the Rules:
I suspect these programs will have little effect, especially when they are one-shot interventions that are not organically linked to longer-term institutional attempts to address men’s violence at its psychological, peer group and organisational roots.
I agree but she does not continue the quote to the point where he still support such efforts in hope that one participant ‘might then take the risk to break the silence and speak out against the dominant discourse and practices of the group’!
In Chapter 7 she addresses the possibility of ‘alternative strategies’.  I cannot address the narratological issues but note the naivety of her reliance on a guide to journalism, Reporting in Australia.  It suggests a level of objectivity and fair-dealing that her own work suggests is rare.
She approvingly quotes two journalists coverage (Jessica Halloran and Jacquelin Magnay’s ‘Bulldogs Party Ended in Woman’s Screams by Pool’) and picks out some good practice then opines that the use of ‘accommodation’ avoids the ‘sordidness’ of ‘hotel’ and ‘the sexualisation of the woman and consequent implication of consent’ (p162).  I think this is far too strong a suggestion when journalistic practice of stylistic variation suggests itself.  Moreover, the term ‘hotel’ appears six times in the article and ‘novotel’ once against two appearances of ‘accommodation’.
Equally contentious are her readings of Cindy Wockner’s interview with a victim who came forward after the report of a similar case to hers (‘Secret Victim Breaks Silence — “It’s Time People knew the Truth”’ - no trace on internet but this article tells of police views on the case that brought her forward).  Waterhouse-Watson suggests that introducing the complainant as, ‘a 43-year old mother’ (About 84,800 results on Sydney Daily Telegraph website!) ‘immediately positions her as an object of illegitimate violence, as the mother marker de-emphasises her sexuality and positions her as a subject of (stereo)typical feminine virtue’ (p164).  Apart from being potentially ageist it ignores the burgeoning number of MILF websites and ‘the rise of the cougar’!
Waterhouse-Watson very successfully puts the Australian media in the dock for their faulty ‘trials’ of these footballers and notes herself
Somewhat ironically the best chance that victims have of seeing players penalised may be the football leagues themselves, as they have no burden of ‘proof beyond reasonable doubt’ to uphold. (p183)
I hope that it is not just because I am a man that I have criminological and legal concerns about replacing criminal justice trials with narratological or sports authority ones whilst recognising she is right to contest the power of the media to conduct their trials.
She has shown that Australian male sports stars appear to have considerable immunity in rape and sexual assault cases.  But is this more than men more generally? How many non-celebrity men have the same immunity? And is it the celebrity that grants immunity? And is the fan’s worship - including her own - also part of the problem?  We give celebrities too much slack (see Penfould-Mounce).  And, criminological point, we also give them more opportunities. Whether feminist academics or Gold Diggers we feed the delusion that we have given prior consent.
Here I suggest how sport might be used to discuss issues of consent.

She mentions her previous work in various journals for many of the chapters.
Ch 1
Ch 2
Ch 4
Ch 5
Ch 7

Tuesday, 24 February 2015

Why I’m declaring myself ‘Professor of Criminology in the Twitterverse’.

I can see why Chris Parr (‘A lifetime’s worth of insight in 140 characters max’, 19 Feb 2015) opens with a ritual nod to popular views of Twitter as ‘a frivolous tool for procrastination’ but it would be nice if we could move on.

He moves on to discuss the value to young academics of Twitter.  I want to emphasise the potential benefits for older academics such as myself.  As part of my commitment to ‘Public Criminology’ I tweet as @criminology4u to 5571 followers.  Only professors David Wilson and Tim Newburn have higher profiles. I once crowned David Britain’s foremost Criminologist in the THE (‘CSI: crime story interpreters’ 23 July 2009). His media output is controversial (Bring Back Borstal met with mixed reviews and many brickbats from criminologists on Twitter) but it brings undergraduate students - and their parents - to Birmingham City University.  Tim’s work on the Riots and all-conquering textbook are only part of his many talents.  Both tweet.

My Twitter following rests entirely on building it up over many years.  I like to think I retweet colleagues generously and take issue politely and appropriately.  It has lead to some invitations to events where professors proliferate and some invites to guest lecture due to pressure generated by student Twitter followers anxious to hear me.  But I want to illustrate the impact this can have with an ironic tale.  My published, peer-reviewed work is eclectic but includes two specifically on public criminology.

I recently found these denounced along with the work of other, better known academics.  I invited the author to do shorter version for my public criminology blog.  He declined and I wrote up the ‘dispute’ myself for my blog as Nic Groombridge, ‘Public Criminologist’ and ‘Master of Truth’ where I suggested he was the elitist not public criminologists.  I noted that in the week of 15 November 2014 my tweets received 3,809 views, that I had 55 new followers with 74 visits to links that I had posted. My most popular tweet that week accounted for one third of those link visits; with one in ten of those viewing visiting the link to his article in Radical Criminology.

I, and he, probably got more coverage from that tweet than any amount of journal publishing which brings me back to my own frivolity and procrastination.  I like to think that if I’d published more I’d be a Professor by now.  But I want now to argue that such is the reach of social media it should be taken into account in selection for titles.  Whilst I wait for the Academy to catch up I’m declaring myself ‘Professor of Criminology in the Twitterverse’.

Monday, 23 February 2015

Book Review: Rosie Meek's Sport in Prison

Encyclopaedic knowledge of vast material and scrupulous concern for what might and might not be said vis-a-vis whether sport works and what constitutes working and how it might be measured.  However, it usefulness is severely reduced by the poverty of the index.

In this review I concentrate upon the conclusion and one particular chapter that fully discusses her work rather than that of others.  I may return to this book again and post further, or revised, reviews.  I have provided links where possible.  Do suggest more.

Round 1

For every boxer who claims that without the sport he would have ended in prison (for instance Luis Collazo) we might find lists of the ten best boxers who ended up in prison.  And yet we also have Prison Fight a charity which claims world connections but seems only to be Thai-based and uses Thai boxing as rehabilitation and holds out the possibility of amnesty; but to my untutored eye it looks exploitative.

Yet boxing rates only 3 mentions in Meek's book: one to note that in her survey boxing was the favoured activity for inmates though banned at the time (p109); that it had recently been approved for use with non-violent offenders (p33) and that it was now offered in a number of establishments (p28).

In ITV’s Bring Back Borstal the ‘boys’ play a game of Rugby Union against a local team and go on cross country runs - shades of the book and film The Loneliness of the Long Distance Runner - but they do not box.  Several fights break out and a punch ball takes a hammering in Episode 3 to allow one young man to ‘let off some steam'.  In Meek’s mentions and more generally it is not clear whether boxing training - i.e. pad work, speed ball, skipping or running - is meant or more serious sparring or even a boxing match - with headguards and gumshields.  Organisations like Boxing Academy and Fight for Peace use ‘boxing training’.

The playing fields of Portland

But back to Rugby (the RFU) and Association Football (Chelsea) ; which are the subject of Chapter 8 and of her earlier work evaluating the Second Chance Project which with the two boxing projects mentioned above are amongst a number of sports projects further evaluated by Project Oracle. (Stereotypically one might assume an Australian interest in sport and their Institute of Criminology does not disappoint.  And in the UK New Philanthropy Capital has sought to evaluate some of these projects.)

In a piece of Reality TV/public criminology Sky showed Football Behind Bars in 2009 on this subject and at the same institution, HMYOI Portland.  I know full well the problems of such ventures (see ‘I’m Making a TV Programme Here!’ Can Reality TV’s Banged Up and Public Criminology? with Prof David Wilson) but am surprised she does not seem to mention the TV series.  It does receive a mention in the free standing evaluation of the report mentioned above and I know he attended the launch at Twickenham Stadium.

She mentions the controversial Thorn Cross High Intensity Training Centre and the ‘glasshouse’ experience offered by Colchester Military Corrective Training Centre which have some of the intensity which she talks of.  She notes the mixed success both had (Farrington et al).  Indeed much of what follows in the Chapter (as in the whole book) can be seen as falling under the ‘mixed success’ banner, from which might be intuited, ‘occasional or frequent failure’.  And Meek does not shy away form the difficulties of doing good evaluation and the consequent lack of a single good narrative to give to the media, Ministers or public.  However she frequently allows  some hope, for instance suggesting, that the Duke of Edinburgh Award ‘offer some promise’ citing evaluation by Dubberley and Parry.

Moving on to her work she describes the 4 academies over 2 years accepting 79 young men (46% White, 33% black and 21% mixed race, Asian or ‘other’.  On average they were just under 20 years old and the mean for offence category showed 40% were for violence against the person with a wide range from 24 to 63%.  Though self-selected they were ‘broadly representative of the national young adult population according to sentence category’ (p92).  Their Offender Group Reconviction Scale scores ranged widely from 10-85.  Of the 411 prisoners released from Portland in 2010 50% reoffended within one year against the national score of 53%.  And given all the appropriate proviso and health warnings does conclude, ‘this suggests that academy  participants are less likely to reoffend than those who haven’t participated in the academy’ (p94).

At point 5 in ‘Punditry’ blow I mention a table potential indicates of effectiveness.  In this chapter she adumbrates the ‘Intermediate measures of the impact of the sports initiative’ (p94) in the same spirit of more ways to evaluate the skin of act.  These are: Beliefs about Aggression (Farrell, Meyer and White, 2001); Use of non-Violent Strategies (Farrell et al, 2001); Self-esteem (Weinburger and Schwarz, 1990);  Self-concept (Phillips and Springer, 1992); Impulsivity (Bosworth and Espelage, 1995); Conflict Resolution, Impulsivity and Aggression Questionnaire (CRIAQ) (Honess, T., Maguire, M., & Vanstone, M. (2001) and Attitudes towards offending (CRIME PICS II).

As a qualitatively-orientated sociological criminologist I’ll merely advert to my queasiness about trying to put numbers on these matters but must ask the extent to which sportspeople have been subjected to the same tests?  Clearly some have been tested against wider populations.

A quick search of Google Scholar on the list ‘and athletes’ for 2015 reveals:

‘Beliefs about Aggression and athletes’ revealed 542  with doping and sexual violence prominent;

‘Use of non-Violent Strategies and Athletes’ produced only 38 results with Nigeria and Kenya apparently using sport against violence

‘Self-esteem and athletes’ found 673 with work on Obesity, Self-compassion and a meta analysis of the ‘Relationship between self-esteem and aggression amongst Chinese students’;

‘Self-concept and athletes’ returned 237 results with similar mix to ‘self-esteem’;

‘Impulsivity and athletes’ only returned 58 results but the top one, ‘Risk-taking and impulsive personality traits in proficient downhill sports enthusiasts’ by Maher et al, speaks to some of my concerns that sport and crime/deviance not something in a cause effect relationship but dialectically fused.

‘Conflict Resolution, Impulsivity and Aggression Questionnaire and athletes’ produces 58 results but seem mostly to pick up on the words ‘aggressive’ and ‘impulsivity’ but CRIAQ and athletes produced no results.  Clearly plenty of scope for work here.

Of the 270 results for ‘Attitudes towards offending and athletes’ top is one on ‘not-doping’ amongst sports people and the second about students attitudes to cheating!


From Chapter 14 Conclusion I take and discuss a number of points: 

1 “like music and art sport can be used as a ‘hook'" (p170).  She does not use the term 'bait' but acknowledges that a, ' direct research implication of the recognition of the varied uses and different effects of sport and physical activity across the secure estate is the need to make greater efforts to determine which types of sport are most effective in meeting specific aims ... (p179/180).

Note she does not say 'sports' but 'types of sport', so not rugby, soccer, badminton or tiddlywinks but say team versus individual and contact versus non-contact.  Given the class background  of the Borstal pioneers Rugby Union and cross country running might have been their ‘bait’ but soccer or boxing might make for a more attractive hook for inmates now.  She returns to this in her final conclusions, ‘research also needs to concentrate on establishing which sports are more or most useful in prison’.  She seems to mean to the authorities and not to the sports participants.

2 She is very clear that, 'sport in prison can and does offer numerous possibilities and opportunities but that there are also complexities associated with developing, implementing and evaluating sports-based programmes ...' (p171)

She fully understands that these cannot be a 'solution in themselves' (p171)  they must be 'a vehicle by which to implement social, psychological and physical change'.  I incline to the view that sport in prison, like art in prison like sport and art anywhere should be autotelic but see why some might seize on them as 'solutions'.  Indeed both PE/gym staff and sporting organisations (p181) have reason to make claims for the efficiency, effectiveness and economy (As a one-time Home office civil servant I cannot avoid the 'value for money' triple E.)  And she emphasises throughout, 'the importance of robust evaluation' (p178).

3 2 things I didn't know.

I admit I'd not heard of the Council of Europe's Enlarged Partial Agreement on Sport or its designation of 2014 as the year of sport in prison (p171). And the internet offers little more information beyond some statements and conferences. Nor did I know of the Rugby Football Union's 'Prison to Pitch' initiative (p175) and there own website only offers a couple of stories about Rugby and Prisons.  But I do know my own club Saracens work with Feltham YOI with their Get Onside initiative. 

4 Turning specifically to the 'negative aspects of prison sport' (p180) she mentions, ‘narcissism, which is associated with anti-social characteristics such as low empathy (Watson & Morris, 1991), exploitativeness (Campbell, Bush, Brunell & Shelton, 2005) and aggressive reactions to threat (Bushman & Baumeister, 1998)’ as having potential for investigation.  Here, narcissism has a specific psychological meaning but its broader, but still psychologically inflected, meaning might have lead us in the direction of masculinities research into homosociality etc or the body, but gender (though women and girls the subject of chapter 5) and sexuality make no appearance in the index though Messerschmidt rates a bibliographic reference.  So no mention of Featherstone or Foucault on ‘the body’.

5 Fascinating in boiling down so much material is Table 14.1 (p182/3) on suggested indicators of effectiveness beyond reoffending with a bibliographic entry for each.  The 17 sections (many have subsections) range from ‘disruption in prison’ to ‘anxiety in sport’.  If only all Government policy were subject to such rigour.

It should be clear that I found this book very valuable and sparked many thoughts which it would be unfair to expect the book to answer all.  It is meticulous in use of academic material and Meek’s concern to track down so many papers and to air so many views is laudable.  It should be of particular interest beyond prison students and administrators to a wider sports world and to evaluators and policy makers.  It is psychology and evaluation heavy quite appropriately but as my comments suggest some sociology, philosophy and gender studies might have broadened its appeal.  However, the index is very poor; there are only 38 entries with multiple undifferentiated entries for the main sports.  This seriously reduces the value of the book to those looking for ‘answers’.

There is enough material in the book to support sport in prison but also to turn against it as 'not proven'.  However, those who would do that might consider the far more expansive and expensive claims made for the Olympics (see for example, the non-hyperbolic Levy and Berger, 2013) and not ask, 'Does sport (or art or faith etc) work?' but ask the autotelic question, 'Are they worth doing in their own right?.  Obviously the answer may still be, ‘no'.

Monday, 10 November 2014

Cheating - what sports scandals can tell us about rules in sport and more widely

Speaking to the Guardian Mario Andretti, said:
Formula One should loosen up a bit. I think they’ve gone slightly overboard with the technical side of the engine. And we saw in Sochi, teams backing off for fuel reasons, just to make it to the end

There are ways of using a little bit of creativity to enhance and increase the interest. It’s all there for the taking. It’s just a question of looking at some of the stranger rules they have in F1.

I can’t claim to know exactly what he meant and the rest of the article suggests that some of it is off-track issues around marketing and use of social media but guess some of it surrounds the technical and safety issues that may have reduced some of the chance and danger in the sport.  In a rather more admiring way (of Lewis Hamilton) Stirling Moss says:
The cars are that reliable these days, therefore one can judge a man by his talent - his enormous talent. He's exciting to watch.
Hamilton may be exciting but the motor-racing is not (now is not the time to argue my green objections to it) and both Andretti and Bernie Eccleston (I may tackle the issue of his governance of the sport at another time) are grappling with that.  Andretti clearly thinks some changes to the rules are required.

As a criminologist I’m interested in rules though these are often framed as laws, sanctions, regulations, norms or even censures (hat tip to Colin Sumner) and their breaches known as crimes, infractions, deviance etc.  So now we turn to cheating, fouling etc.

I’ve been trying to write about the subject of in-sport, on-field ‘crime’, ‘deviance’, which I see as central to Sports Criminology when I came across this article ‘Cheating in sport: is increased regulation the answer?’ in Sport and Law Journal Volume 21 (2).  It is particularly useful as the majority of the examples she gives were know to me and on my hitlist.

What follows takes Naidoo’s structure and subjects her analysis to a critical engagement. Despite being an ex sports administrator, CEO of the International Netball Federation*, Naidoo recognises the difficulty of simply regulating more, or attempting to do so.  However, I believe she is prone to some naivety in her reference to ethical issues.  After this intro/standfirst the next paragraph says:
The IOC Code of Ethics lays down the principles that “fairness and fair play are central elements of sports competition. Fair Play is the Spirit of Sport and the values of respect and friendship shall be promoted.”
I think I play fair in my sport and think that many others do too but for sceptico-cynical reasons I hold professional sports people to lower standards.  I don’t expect them to be ‘role models’.  They are sports workers and sometimes celebrities.  They may ‘justify’ or ‘neutralise’ (Sykes and Matza have that covered and Kevin Young cites them in Sport, Violence and Society) but the competitiveness of sportspeople and the structural pressures of media and owners render them little agency save in choice of tattoo.  They are in a business with a star economy and limited narratives.  I expect to be entertained, to enjoy the spectacle, for them to be the circus while I scrabble for bread.

I may come back to Naidoo’s introduction and wider discussion but let’s turn now to the case she cites:
EarGate and

Googling the term brings up the story but also - and close to my own intentions of using sport to illustrate wider issues and vice versa - this blog which argues:

Sport, like law, is an intensely rule-bound activity. It wouldn’t work without clear interpretation and rigid adherence to the rules. These eight players played within the rules, but were nonetheless censured for subverting the game by not playing by its spirit. It seems to me the same could be said of tax avoidance. Interestingly, the Players' Code of Conduct of the Badminton World Federation even has a kind of catch-all anti-avoidance regulation! The disqualified players were censured for "not using one’s best efforts to win a match" and "conducting oneself in a manner that is clearly abusive or detrimental to the sport" – arguably the badminton equivalent of the proposed General Anti-Abuse tax Rule that the UK is mulling over this autumn.
Pleasingly for a sociological criminologist the Guardian article cites Lin Dan, world No1, blaming the organisers for setting up a playing schedule that opened the door to manipulation:
Whenever they set the rules they should take that situation into consideration," he said. "I don't understand why there is a group situation [rather than a straight knockout competition].
Naidoo notes a number of past and contemporary examples of ‘not trying’ from cycling and women’s football and a case of ‘cheating’ in the swimming (Von Burgh 100m breaststroke undetected by officials for want of underwater technology) which involved trying and winning.

I had not known about this case of the NFL New Orleans Saints Pay-to-Injure ‘Bounty’.  Naidoo’s description of the events concentrates almost exclusively on the bounty, which would have breached the NFL’s strict salary cap, the fallout and governance failures.  As she says:

the NFL had no clear process in place to handle this sort of allegation as it could have been dealt with as a breach of the salary cap or it could have been dealt with as an on field breach of the rules.


the farce around how the players were disciplined and the flawed governance process actually became a bigger story than the cheating.

‘Cheating’!  The events she describes involving over 20 players, coaches and manager suggest a conspiracy to commit grievous bodily harm on the face of it.  The only harm appears to have been to the reputation of the game not the players (though see ‘progress’ on the NFL concussion issue).  Just about anything other than the targeted players appears to be her or the NFL’s concern:

The Bountygate case publicly played out the very interesting conflicts involving due process rights of individuals, collective bargaining agreements, and private disciplinary procedures against the highly visible tapestry of professional sports. The federal judge who heard the case questioned the fairness of the process, but chose not to rule in part because it was unclear if she had the power to do so.

I incline to the arguments of Paul Tagliabue as reported by Time the former NFL commissioner appointed to hear the appeals about the use of discretion and not being over punitive but again it is interesting that no thought is given to the victims but to the politics and processes of the NFL.

When I played rugby no substitutes were allowed, only replacements and then only for medical reasons and at our level effectively there’d be no available replacement.  Indeed we played a full fixture list of friendlies and might even lend each other players.  Injuries to a front row forward - I was a prop, then hooker  - inevitably led flankers being shoe-horned in.  Non-Specialist front rows are not allowed now and substitutions are.  In 2009 in a cup quarter final Harlequins were narrowly losing to Leinster and had used all their players and had no specialist kicker on field.  With 5 minutes to go they wanted one on.  Tom Williams, their last substitute, came on armed with a fake blood capsule (and not the first occasion when a ‘Quins player had done so) and with the collusion of the physio and club doctor faked the injury that allowed the specialist kicker on.

The team still lost, were fined and the player, coach and medics were all punished.  Naidioo makes something of the different punishments - all appealed - but nothing of the reasons for the ‘conspiracy’.  In American Football offence and defence and specialist teams come on and off at the dictates of the play and the Coach’s strategy.  In Basketball and Ice Hockey rolling substitutions occur.  In Rugby Union the numbers of substitutions depends on the level being played and the player substituted has to stay on unless replaced for blood or front-row reasons whereas in Rugby League the squad of 17 players can be interchanged up to ten times.

So, to return to the question Naidoo’ poses, Rugby Union could prevent faking incidents, not by greater regulation but through regulating differently like other sports - decriminalising if you like.

As Naidoo baldly states, ‘Nelson Piquet Junior crashed into a wall during the Singapore Grand Prix in 2008 to allow his teammate Fernando Alonso to win the race.’ before discussing the potential and repetitional dangers involved.  The absence of ‘team orders’ in the current Mercedes F1 team means that Lewis Hamilton and Nico Rosberg are contending wheel to wheel which may too have its dangers.  More recently the manner of Mo Farah’s victory in the Great North Run has been called into question.  Was he paced and then allowed to win by his fellow PACE Sports Management athlete, Mike Kigan?  If so they should practice more as I was disappointed by the spectacle (GatesheadGate?).


Actually Naidoo runs out of ‘gates’ and calls this section ‘Mike Tyson – Evander Holyfield’, describing how in their 1997 fight Tyson bit off a part of Holyfield’s ear.  They are apparently reconciled and Holyfield declined to press criminal charges at the time.  Naidoo opined Tyson:
would clearly have been guilty of a criminal assault as the action was intentional and it was not within the rules and the wound inflicted could have been described as serious.

Again, fresh out of gates, she prosaically opts for ‘Tonya Harding’ as her heading to describe the off rink assault on her rival Nancy Kerrigan that Harding and her husband arranged.  Kerrigan recovered and won silver at the 1994 winter Olympics. Harding went to law overturn a US Olympics and Skating ban but came eighth and was eventually banned from skating for life.  It is interesting that Naidoo calls this ‘cheating’.  It is not clear whether the scare quotes shows she knows it is not cheating in the sense that it occurred outside the sport or to minimise the clear criminality.  And you have to look elsewhere for the Harding’s ongoing denial/minimisation and criminal justice punishment: three years probation, 500 hours of community service and a $160,000 fine for hindering the investigation.

Cheating lawyers

After outlining these various ‘gates she asks why people cheat and, appropriately for her audience,  ‘what is the role of the sports lawyer’.  Pretty much all of criminology is dedicated to asking whey people cheat or don’t though it’s not usually put that way.  And clearly one use for a sports lawyer is defend your ‘cheating’.

On cheating she speculates about:

desire to win;
financial rewards and 
Tysonian ‘sport rage’

Both the sociology of sport and criminology could provide more and back up her synopsis of Rowbottom on the difficulty of:
attempting to identify a dividing line between gamesmanship, mental intimidation, the manipulation of rules and out-and-out dishonesty, 
and that:
every game has an unwritten etiquette alongside its formal rules, and what is acceptable in one sport is taboo in another. For instance, while in rugby the odd punch-up has traditionally been regarded as part of the fun, tripping an opponent is deemed disgusting.
Similarly in Ice Hockey a fight is great and acceptable and even expected as part of the match but using your stick to hit someone is definitely abhorrent.

Few criminologists would disagree with her conclusion where she quotes Max Duthie**, ‘Regulations alone won’t combat cheating’

but many might baulk at: 
… the relevant sporting authorities need to have the necessary will to enforce them. Federations and governing bodies have to be prepared to investigate and prosecute suspected wrongdoing, even if it means some short term pain, like loss of sponsors or star teams/players being suspended or withdrawn.

and not have the faith she places in ethics reemphasised in her conclusion in respect of the lack of ‘Sports Culture’ these cases showed.  Less and more rational rules might make the 'getting tough' easier too.

As a critical sociological criminologist I incline to the belief that neo-liberal capitalism supplies the sport we ‘deserve’ and that ancient greeks nor the ‘blazers’, and now the ‘suits’, seem likely to save us from the cheats - which include ourselves - any time soon.  Best solution participate in own low-level sport for fitness and don’t watch high level sport for anything other than spectacle.

* Noting only in a footnote ‘Writing in a personal capacity and not on behalf of current employer the University of Warwick. Previous employment: 2002 Salt Lake Olympic and Paralympic Winter Games; the International Cricket Council and the International Netball Federation. Co-author of 4th edition of Sports Law, Gardiner et al. Currently sits on Disciplinary Panels of Badminton England and England Netball and the FIH Judicial Commission.

** A partner in the sports group at Bird & Bird LLP. He prosecuted the misconduct complaints against Harlequins and others in the ‘bloodgate’ case and advises ERC, Six Nations, the International Cricket Council, World Snooker and others on their respective regulations and disciplinary procedures

Wednesday, 5 November 2014

Dumb sports law

Along with ‘Dumb Criminals’ ‘Dumb Laws’ are an internet staple.  I do not know the source for these Daily Telegraph ones but suspect some are wrong or misunderstandings and am confident that some of these are definitely wrong.

So let’s add some Dumb Sport’s Law to the mix.  Sport is often accused of being behind the curve - and never likely to catch up - on doping.  As a criminologist I’m inclined to a harm reduction perspective on drugs in society so would be for sport too.

Claiming a harm reduction motive as well as seeking to prevent performance enhancement WADA are now seeking to get in front of the curve by banning the gases xenon and argon.  As the BBC news website points out in its headline, this despite having no test for the gases!  Obviously outside of sport we’ve had subjective tests for sobriety but these have been replaced by accurate measures of alcohol in breath or blood - not same thing, as drunk drivers argue.

The BBC article points out that some doubt the benefits. They quote Dr Ben Koh who notes they are not banning the use of hypoxic tents and suggests the gases may be safer.  Moreover, Dr Chris Cooper suggests any benefit may not work in the way WADA suggest.  However, Russian medicine seems very keen on the benefits and the BBC noted the approval then of the Russian Olympic committee.

Also as a relativist, sceptic and low level athlete I incline to the view that if you take vitamins or pray because you believe it will help your performance then you are attempting to cheat.  Athletes try all the latest training methods, supplements etc.  Some are legal, some are illegal and some are legal but become illegal and less often vice versa.

If WADA could throw its weight behind proving the inefficacy of vitamins or banning them for efficacy that might be interesting.  And a test for the power of prayer?

no word yet on Krypton.

How do we get men to talk about rape? Might the issue of consent in sport be a way in?

For very good campaigning reasons many feminists argue that ‘rape is rape’.  Despite being a supporter of feminism, I cannot, as a criminologist, accept that any crime is exactly the same as any other crime.  Moreover, I understand, and am uncomfortable with, arguments like MacKinnon’s (Feminism Unmodified ) that under the patriarchy all heterosex is non-consensual.  Here I want to illustrate differences in crimes and attitudes to them through a discussion of assault by men on other men; mostly in sport.

The link is the tricky one of consent, where sports law texts find themselves quoting the Spanner case (R v Brown) which involved sado-maschistic practices. That case necessarily has much discussion of boxing and fights in the street in seeking to discuss consent before finding against the men.  Reflecting on the case Carol Smart compared consent in rape and homosexual acts noting that women’s ‘no’ is taken for ‘yes’ and homosexual men’s ‘yes’ for ‘no’.

But to sporting consent.  This post is inspired by the recent case of Ben Flowers and a reminder from Christopher Matthews of the violence in Ice Hockey which reminded me of the violence of professional wrestling which Corteen and Corteen cover.  I rely on Matt Rogers for the facts and some of the law and can recommend his extensive analysis of ‘implied sporting consent’

Flowers received a six month ban from Rugby League Football (RFL) at the hands of the its match-review panel.  It represents potentially missing 13 games and is the most severe option open to the panel.  Interestingly the Sky sport website offers a feedback poll on the question. 

This is how matters stood on 3 November 2014. 

More interestingly the question might have been should his actions have been subject to police action - perhaps, there and then.  It would seem that Greater Manchester Police propose not to disturb the RFL’s jurisdiction but are investigating threats of summary informal justice on social media against Flowers.

As a one-time Rugby Union player, and more occasional informal soccer player, and largely TV viewer I’m aware of the cultures of such sports.  I believe I’ve received more violence than given in my sporting career but make no claims to sainthood.  The odd kick in the face is the price of entry for an open water swim triathlon.  I’ve received some and must have unintentionally given some.

We might construct a continuum of consensual violence for different sports with Ice Hockey and Professional Wrestling at one end where illegal moves - often punches - are expected and tennis or golf at the other end.  Indeed the crowd would be disappointed if violence did not occur at Ice Hockey or Pro Wrestling.  In boxing structured violence is de rigur but hitting below the belt, mauling or fighting at the weigh in (think Haye v Chisora in what the BBC call a ‘brawl’) is penalised as is ‘not trying’ British Board of Boxing Control rule 3.38 (g).

The audience for boxing goes for the formal violence of the sport but may be happy to see some additional informal violence, may even participate in some (on behalf of their man).  Rugby and football crowds often enjoy a little ‘handbags’ (the feminised disavowal of the violence is interesting). Ed Smith suggests that wider society has fallen out of love with boxing as we have become less tolerant of violence (an Elisian thought?).  He muses on whether American football might decline in popularity because of on- and off- pitch violence.  Perhaps we might ask the same of Ice Hockey and Pro Wrestling and has a distaste for cheats - the simulation of fouls etc - reduced the popularity of soccer?

The shadow of simulation (and an implicit censure of soccer?) fell over Rugby Union recently in the suggestion that recent interpretations by officials of violent incidents would lead to diving.  As the Mail Online Headline has it:

Blair Gowan of London Irish is said to have punched Leicester Tiger’s Jamie Gibson in the face but received no yellow card.  Leicester’s complaint to the RFU was met with the answer that the player had not gone to the floor or needed treatment and that the penalty awarded was sufficient punishment.  The concern is that, knowing this rugby players will go to ground and pretend to be hurt (and here is a Samoan player attempting to do just that).  Note that for Rugby Union and in the  Ben Flowers’ case a punch is not a punch but in soccer it would be irrespective of effect.  And on the street it would be too.

Glenn Hoddle made exactly such a point in discussing Luis Suarez’s dental incontinence.  He suggested prison.  Clearly biting is beyond any implied consent and is seen to be unmanly, even childish.  This reminds us that in addition to the law of the land, the code of the game there are gender codes at work too.

The London Irish captain’s take on the punch was:

It’s rugby. If you pull up every incident like that and make a thing about it the game is going to go soft.

Soccer seems to have survived the ‘softness’ of banning hacking in 1863.

But to turn to Sport and Rape we might find MacKinnon in Ched Evans’s corner when she notes:  

Since rape is difficult to talk about, but men need to talk about it perhaps discussion of consent in sport might be a way in.  Just as a rapist may feel he was doing what any man would do so the on-pitch punch thrower may feel he too is only doing what any man might do.  Indeed he may have been the victim of punches in the past, including the immediately preceding past.

I am not so naive to imagine that by changing the way we talk about things will change matters but perhaps the sports authorities and media might use terms like victim and offender in these circumstances.  Should sport point out to players explicitly the issue of consent before each match?

Stepping on to the pitch does not mean you consent to being punched.  Stepping out does not mean you consent to rape and harassment - see Shoshana Roberts.