The publication of the much-anticipated Whyte Review is undoubtedly a seminal moment. The potential is clear for it to be a real catalyst for change in terms of good governance and serving as a reminder that sporting national governing bodies (“NGBs”) must do more to make positive changes to prevent similar failings from occurring again.
Unfortunately there have been many reports over the last few years concerning appalling types of “systemic” abuse (ranging from physical, psychological to sexual abuse) involving children participating in gymnastics sessions or competing under the jurisdiction of the British Gymnastics (“BG”), the NGB for the sport of gymnastics.
Moore Barlow’s dispute resolution team has had direct experience of dealing with sporting NGBs, including BG. We have had direct sight of several of the issues mentioned in the report at first hand as a result of the firm acting for several clients engaged in matters involving BG.
The Whyte Report: background and findings
Given the scale and severity of the issues, Anne Whyte QC was appointed by Sport England in July 2020 to review and report on these concerns. Her report (the “Report”) reviewed hundreds of complaints and focused on events during the period of 2008 – 2020.
The findings of the Report made clear that BG was responsible for failing to prevent abuse but, perhaps more shockingly, that as a result of cultural failings it condoned abuse through “the pursuit of national international competitive success.”
The role of sporting NGBs
With the publication of the Report, arguably the role of sporting NGBs in society and the extent to which they may be held accountable has never been brought into such sharp focus, and rightly so given the nature of the cases of abuse which BG is reported to have failed to prevent.
Sporting NGBs occupy an important place in society, they are often resource-rich, they control access to aspects of social life and hold extensive power (seemingly beyond the scope of conventional regulatory oversight processes which are prevalent in other sectors) which can impact on livelihoods and reputations. It is, for this reason, that there is a reasonable civic expectation and need for NGBs to play an effective role in protecting participants and putting in place effective regulatory processes and procedures to ensure that the welfare of those involved is prioritised.
It is clear from the Report that BG failed to protect and prioritise the welfare of gymnasts or other members. The Report also highlighted further issues with BG, including:
- Delays in terms of complaints handling;
- Case management systems for complaints not being fit for purpose;
- Failures of BG to investigate or properly consider evidence; and
- An inability to understand or interpret its own policies.
The Report provides a list of 17 recommendations including the production of a BG Gymnast Handbook containing regulatory standards of conduct (aligning with the position of many regulators) and an explanation of key policies such as those relating to welfare. It is also recommended that greater human and economic capital is expended to ensure that the investigations team is properly resourced.
A lack of independent oversight of decisions
In addition to issues with the culture of BG and the impact of inaction, a further key legal issue referred to is that there was limited independent oversight in terms of decisions made by BG (e.g. disciplinary action). If complainants were unhappy with a decision made by BG there was no independent watchdog nor an ombudsman to complain to.
Clearly this is a hugely important issue in terms of ensuring regulatory processes and procedures are established to ensure greater transparency and accountability of the NGB, given the power it holds and its ability to shatter reputations and livelihoods. It is also important in order to restore confidence in decisions made, in this case, by BG. Somewhat disappointingly, whilst the Report helpfully comments that the role of a central regulator such as an ombudsman would be “an obvious step in the right direction”, the Report stops short of including it as one of the 17 formal recommendations.
We consider that a firmer recommendation would have been preferable, as a result we suspect that it follows, in terms of what we will see, will be either complainants simply gaining fatigue and dropping their complaint, or in the more series cases of breach, such claims being heard before the court.
As a result of the Report, the BG Board will now periodically publish at 6,12 and 24-month intervals progress reports of how they have complied with the recommendations.
Moore Barlow and our experience
Having acted for several clients engaged in matters involving BG, Moore Barlow will be closely monitoring the sporting NGB’s response and any updates from BG in terms of adherence to or implementation of recommendations arising from the Whyte Review.
The extent to which sporting NGBs are held accountable for their rules, policies and decisions/inactions is of huge interest. We anticipate that greater judicial scrutiny is likely to follow in terms of NGBs who are proven to have failed to discharge their contractual and statutory legal duties to their members, participants and other stakeholders.
