Whistleblowers call foul, Play the Game

Marcus Carmichael
(Chris Turner CC BY-NC-ND 2.0)

Whistleblowers are basking in an adoring limelight in the United States right now. They better enjoy it while it lasts, because the American taste for whistleblowing is fickle.

All the attention being paid to whistleblowing in Washington, you would think that whistleblowers are heroes of democratic liberty, Paul Reveres on midnight rides of revelation. Now there’s a second whistleblower, and maybe a third, and, why, people just can’t get in line fast enough to become whistleblowers.

I have to roll my eyes when I hear people waxing poetic over the great tradition of the American whistleblower. Catch those same people on a different day, different issue, or different side of the fence, and they’ll be lashing the whistleblower to the stake and setting their torches to the kindling like it’s the Spanish Inquisition. For much of American history, whistleblowing has been synonymous with disloyalty and treachery.

The Washington whistleblower caused WNYC’s On the Media to replay a 2015 segment in which Brooke Gladstone interviewed language writer Ben Zimmer and consumer protection advocate and civil rights crusader Ralph Nader. The early-20th-century word whistleblowing, Zimmer explained, comes from what it sounds like: a referee blowing the whistle to stop play in event of a penalty. (See Transparency International for the word’s translations, born of other cultural contexts.) No sooner did the word come about that it acquired a dark connotation. It meant, Gladstone said, “to snitch, to rat, to steal.” You can hear that usage, Zimmer pointed out, in the classic film On the Waterfront (1954), in reference to the enemies of organized labor. In this sense, Trump’s “spy” notion is not so far off the mark.



Nader was responsible for turning the word around in the 1970s. He pleaded for insiders to break ranks in his public safety crusade against Big Auto, and he repurposed the term whistleblowing with the positive spin of serving the greater good, despite disloyalty in the short term. So the word is not the thing. Gladstone nailed the salient distinction, which is whether the whistleblowing accords with one’s value judgments. Trump’s traitor is Pelosi’s star witness. Ed Snowden deserves either a presidential medal or an espionage prosecution. Even Upton Sinclair was a duplicitous meatpacking worker.

Blow the Whistle

Our ambivalence about whistleblowers finds expression in law. When we protect whistleblowers at law—common law usually does not—it’s usually a legislative reaction to something awful that happened, when we wonder why no one in the know said anything. While whistleblower protection statutes are prevalent in the United States at state and federal levels, they are often controversial, hardly comprehensive, and likely to pertain only to the public sector. Protection tends to be narrow and sectoral in scope; to depend upon abundant and variable technical prerequisites; and to offer scant shield from the full range of consequences, formal and informal, that the whistleblower faces. Woe to the would-be whistleblower who fails to hire a lawyer in advance to navigate the legal process. The Washington whistleblower was meticulous. The person either is a lawyer or consulted one.

Far from the glamorous escapades of the Hollywood Insider, the real-life whistleblower’s lot in life is lousy. More whistleblowers become infamous than famous, and most become no one significant at all. Typically whistleblowers find themselves, through no fault of their own, in a catch-22. Behind door number one, go with the flow, stay with the pack, look the other way, and sell out your principles. Behind door number two, stand on principle, and probably lose your job, your livelihood, your home, and your friends, alienate your family, and maybe put your life at risk.

To be fair, not all whistleblowers are motivated by altruism, and not all whistleblower motives are altruistic. Sometimes whistleblowers themselves are victims of the misconduct they are reporting. Sometimes they are grinding an unrelated ax against a perpetrator—which doesn’t make the perpetrator less an offender. Whistleblowers’ motives can be complicated. People are complicated. Altruism is a factor. Courage is a constant.

Play the Game

Last week, I had the extraordinary experience of meeting some whistleblowers in world sport. For me, it was the highlight of Play the Game, an initiative and biennial conference of the Danish Institute for Sports Studies, its first meeting outside Europe.  Play the Game aims to raise ethical standards and to promote democracy, transparency, and freedom of expression in world sport.

Whistleblowing in sport might not sound like a big deal, but it is. Consider that transnational sport governors such as the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee (IOC) are among the most powerful non-governmental organizations in the world. Technically they are “nonprofits,” but no one says that with a straight face. Until recently, FIFA and IOC execs sashayed into the offices of presidents, prime ministers, governors, and mayors like they were Regina George’s mean girls on a tear at North Shore High. There were real costs to their shameless greed: global contrails of worthless constructions, impoverished populations, and broken dreams.

That started to change when FIFA and IOC were exposed as corrupt at their cores. Their corruption was exposed by whistleblowers.

Bonita Mersiades (Play the Game CC BY-NC-SA 2.0)

Bonita Mersiades was a top exec with the Australian Football Federation from 2007 to 2010, when she worked on Australia’s failed bids for the 2018 and 2022 FIFA World Cup tournaments. She blew the whistle on the extraordinary demands that FIFA placed on would-be hosts and her own country’s willingness to bend the public interest to conform. Those tournaments we know now were awarded to Russia and Qatar upon such rank corruption as resulted in a 2015 raid by U.S. and Swiss law enforcement and dozens of criminal indictments. Mersiades herself was outed when the investigative report of Assistant U.S. Attorney (now N.Y. Judge) Michael Garcia was made public.

At Play the Game, Mersiades described social ostracism in her community, loss of her career in sport administration, burglary of her home, and hacking and online harassment. She wrote about FIFA corruption and her experience in a 2018 book, Whatever It Takes: The Inside Story of the FIFA Way.

Yuliya and Vitaly Stepanov (Play the Game CC BY-NC-SA 2.0)

Also on the whistleblower panel (below in full) were Yuliya Stepanova and Vitaly Stepanov. Yuliya was a Russian Olympic runner, and Vitaly worked for the Russian anti-doping agency. Together they blew the whistle on Russian doping, breaking open a massive scandal that rocked Russia and the world, exposing not just systematic Russian doping but reckless, if not criminal, indifference in the World Anti-Doping Agency. With good reason, the Stepanovs feared for their lives.  They applied for Canadian asylum and now live in the United States (with their adorable little boy, also in attendance).

Vitaly told a spellbound audience that the stress of the couple’s situation had them on the verge of divorce when, at last, they took the leap into whistleblowing history together. They would have to leave homeland and family behind, and their lives would never be the same. But it was OK, he said, because “after that, … we were united.”

My dinner companions: Mersiades and Dr. Joel Carmichael,
chiropractor to U.S. Olympic athletes

When, over dinner, I lamented the state of patchwork American whistleblower protection law, Mersiades was quick to correct me. It’s much better than Australia, she said. [See UPDATE below.]  In the United States, we do have a somewhat vigorous qui tam field. (Read more at Troxel, Krauss, & Chapman.)  And the federal whistleblower law now at the heart of the impeachment inquiry is better than the yawning void of jeopardy into which FBI Special Agent Coleen Rowley stepped when she testified in the Senate on 9/11 failures in 2002. She retired from the FBI two and a half years later.

Mersiades book

Still, it seems to me that as a society, we should be able to do better. When the dust settles around the peculiarly technically adept Washington whistleblower, we might ought wonder why whistleblowers aren’t all around us—at every level of government, and in the private sector. Did no one at Purdue Pharma know about aggressive opioid peddling? We should wonder why, in the land of the First Amendment, there are so many disincentives—legal, social, economic—for anyone to speak out as a citizen on a matter of urgent public interest.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it,” Sinclair said in 1934. That’s why the rule of law must support the apostate who speaks the truth.

The documentary Icarus tells the Russian doping story.
Director Bryan Fogel also spoke on the whistleblowing panel (above) at Play the Game 2019.

For more from Play the Game 2019, see the conference website and the #ptg2019 Twitter feed.

[UPDATE, Oct. 21, at 10:50 a.m. U.S. EDT: A testament to Mersiades's lament that Australian whistleblower protection lags behind democratic demands, witness today's remarkable protest action by Australian newspapers.] 

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.