A presentation on managing whistleblowing. This presentation was given by Moorhead James LLP as part of the Sport and Recreation Alliance's, Sport and the Law Conference 2015.

1. Whistleblowing: how to effectively
manage the reporting of safeguarding,
integrity and unethical practices.
Edward Wheen & Sam Murray-Hinde
Partners at Moorhead James LLP

2. What is whistleblowing?
• Generally, the reporting of wrongdoing.
• In sport, wrongdoing could include:
– Breaches of sporting rules / regulations
– Doping
– Match fixing and spot fixing
– Physical and/or sexual abuse, discrimination

3. Public Interest Disclosure Act 1998
(“PIDA”)
• Introduced to protect workers and employees
who “whistleblow”.
• Provided the whistleblower acts appropriately, an
employer cannot subject them to any detriment
as a result, or dismiss them.
• Note: employer vicariously liable.

4. How to get protection
• A “whistleblower” must act in a certain way to
get protection.
• STEP ONE: they must make a “qualifying
disclosure”
- Must disclose information
- Information must relate to 1 of 6 types of
relevant failure.

5. How to get protection
• The 6 types of relevant failure:
1. Criminal offences
2. Breach of any legal obligation
3. Miscarriages of justice
4. Danger to the health and safety of any individual
5. Damage to the environment
6. The deliberate concealment of information
about any of the above.

6. How to get protection
• They must have a reasonable belief that the
information evidences one of the relevant
failures AND that the disclosure is in the public
interest.

7. How to get protection
• STEP 2: It must be a “protected disclosure”
– Depends on the identity of the person to whom
the disclosure was made.
– Should make a disclosure to the employer.
– Can only make a disclosure to another
“responsible person” in limited circumstances.

8. How to get protection
• “Responsible person”:
– Legal advisers
– Government Ministers
– Prescribed persons

9. How to get protection
• Wider disclosure: no guidance on or limit to
identity of those to whom wider disclosure can
be made. However, there are more stringent
conditions for wider disclosure to be protected.

10. Why is it important in sport?
• Sporting events must produce ‘true’ results:
reflecting the best possible athletic, technical,
coaching and management skills.
• Public confidence in the integrity of sport.

11. Encouraging Reporting
• Education
• Instruction
• Assurance of no detriment
• Assurance of support/protection
• Force (and making an example of those who
do not)

12. Force (and making an example)
• Oriekov v UEFA: CAS found that a football
referee’s failure to report that he had been
subject to approaches by spot-fixers seeking
to manipulate a UEFA Europa League fixture,
at which he would be officiating, justified a
lifetime ban from any football-related
activities…

13. Force (continued)
• The Oriekov Judgment recorded that sporting
regulators must show zero tolerance for all kinds
of corruption, and impose sanctions sufficient to
serve as an effective deterrent to others.
• Likelihood of match officials being targeted, and
the importance of ensuring they resist.
• Very senior and experienced referee.

14. Force (continued)
• Sanctions could be imposed on an NGB which
failed to take sufficiently robust action in such
a situation….
• Tough, but is there any realistic alternative to
a zero tolerance policy?

15. Facilitating Reporting
• In the Leeds Metropolitan study Track and Field
athletes, of national standard, were willing to
report suspicions of doping but unsure of the
protocol to make such a report.
• Premier League Handbook 2014/15 does not
mention whistleblowing…
• Make procedures clear!

16. Reasons to Facilitate Whistleblowing
• Enables sporting regulators to demonstrate
intolerance of corruption and malpractice.
• Omissions can be exploited by disaffected staff
(dismissals for whistleblowing detriment are
automatically unfair, and have no cap on the
damages that can be awarded).

17. What to do with a Disclosure
• Is there a whistleblowing policy and/or procedure in
place?
• Conduct further investigation?
• Disciplinary hearing / sanctions?
• Inform regulatory authorities?

18. Protecting Whistleblowers
• General view, justified by evidence, that
whistleblowers are not protected adequately.
• Sometimes this is because of a desire to
discourage whistleblowing.
• Sometimes, however, it is because of a lack of
care and foresight.

19. Protecting Whistleblowers
• Phaedra Al-Majid was an international media officer
for the Qatar bid team for the 2022 football World
Cup.
• She gave evidence to Michael Garcia, the US lawyer
appointed to enquire into the bidding process.
• She says this was on the strict condition that her
anonymity be preserved…

20. Protecting Whistleblowers
• Mr Garcia’s report was sent to FIFA, but was not
otherwise made public. However, FIFA published
a summary, which has proved controversial as Mr
Garcia says that it is not an accurate reflection of
his report.
• Al-Majid was named in the summary, and has
fears for her safety as a result.

21. Protecting Whistleblowers
• If Mr Garcia promised her anonymity, was he
right to do so?
• Could he guarantee her anonymity once he
had given her name to FIFA?
• In most cases you cannot and should not offer
anonymity.

22. Protecting Whistleblowers
• This is particularly so if the disclosure may lead to
disciplinary or legal proceedings against others in
which the whistleblower’s evidence may be
required.
• It is sometimes the case that the whistleblower is
making the disclosure in the hope of achieving a
reduced sanction for the same thing, and any
promise of anonymity can complicate this.

23. The Future
• The National Anti-Doping Agency already runs an
anonymous hotline (NB they clearly take the view
that, in their circumstances, anonymity is
necessary in order to get information).
• Calls from some for a pan-sport integrity unit,
with a whistleblowing hotline, funded by the
proceeds of taxing and licensing offshore
bookmakers.

24. The Future
• Some whistleblowing disclosures made to
“prescribed persons”, but not usually any legal
obligation on the prescribed persons to take any
action.
• The Government is now consulting on making
referral to prescribed persons mandatory, and to
require such people to report annually on
whistleblowing disclosures made to them, and
what they did about them.

25. The Future
• The Government has already banned NHS Trusts
from incorporating “gagging” clauses into
settlement agreements (e.g. where any
disclosure results in the settlement package being
repayable), as this was seen as preventing
whistleblowing.
• NGBs should also bear in mind the possible
dangers, and reputational damage, that can
result from the use of such clauses where the
funding is partly or wholly from public funds.