Compliance And Governance Models In Sports Organisations

The so-called “231 Models” are collections of procedures and protocols that complex organisations, such as corporations, must adopt in order to comply with the provisions of Legislative Decree No. 231 of 8 June, 2001, as subsequently amended (now updated on a semi-annual or annual basis), which “governs the administrative liability of legal persons, companies and associations, including those without legal personality.”

For ease of reference, in the remainder of this brief discussion the term “organisation” will be used to refer to all entities covered by the title of the law (therefore partnerships and corporations, sole proprietorships and, more generally, entities operating within the market).

These procedures and protocols, together with the company's “Code of Ethics,” define the rules by which legal entities must manage their day-to-day organisational activities in order to prevent the commission of criminal offenses.

Model 231 is not formally mandatory, but it is increasingly required in order to participate in public tenders, as well as to obtain certifications (e.g., ISO), grants or tax benefits.

Within the sports sector, particularly in light of the growing number of sports entities structured differently from corporations (sports associations, Sports Promotion Bodies, Amateur Sports Clubs, etc.), a perspective has progressively developed which, in addition to focusing on the relationship between the entity and the State, also enhances and safeguards the relationship between the entity and the athlete, who represents the true resource of sports organisations.

In this regard, Article 16 of Legislative Decree No. 39 of 28 February, 2021, entitled “Risk Factors and the Prevention of Gender-Based Violence in Sport,” introduced the obligation for National Sports Federations, Associated Sports Disciplines and Sports Promotion Bodies to adopt guidelines for the preparation of organisational and control models for sports activities and codes of conduct aimed at protecting minors and preventing harassment, gender-based violence and any other form of discrimination.

The rationale of this provision is to require National Sports Federations, Associated Sports Disciplines, Sports Promotion Bodies and Meritorious Associations to adopt, within twelve months from the entry into force of the provision, guidelines for the preparation of these so-called sports prevention models, with which affiliated entities must comply within the following 12 months.

Failure to adopt such models is subject to disciplinary sanctions imposed by the individual Federations.

The Legislator's intent is clearly to introduce and embed within the sports sector notions and principles typical of corporate organisation, which fall within the broader concept of accountability or compliance.

Before analysing the various measures adopted by the main sports federations, it is necessary to refer to the provisions established by CONI (Italian National Olympic Committee), which, by resolution of the National Council No. 255 of 25 July, 2023, summarised and defined the obligations of Sports Federations regarding the prevention and combating of abuse, violence and discrimination.

Turning to the main national federations, reference must first be made to the Federal Statute of the Italian Football Federation (FIGC), which provides under Article 7, paragraph V, that “the Federal Council, after consulting the relevant Leagues, issues the necessary rules or guidelines and supervises to ensure that clubs participating in national championships adopt organisational, management and control models suitable to prevent acts contrary to the principles of loyalty, fairness and integrity in all relationships.”

Such models, taking into account the size of the club and the competitive level at which it operates, must provide for:

a) measures suitable to ensure that sporting activities are carried out in compliance with the law and the sports system, as well as to promptly detect risk situations;
b) the adoption of a code of ethics, specific procedures for both administrative and technical-sporting decision-making phases, as well as adequate control mechanisms;
c) the adoption of an effective internal disciplinary system capable of sanctioning non-compliance with the measures indicated in the model;
d) the appointment of a supervisory body composed of highly independent and professional individuals, vested with autonomous powers of initiative and control, tasked with overseeing the functioning and observance of the models and ensuring their updating.

The purpose of adopting such a model has direct implications in disciplinary proceedings, since “In order to exclude or mitigate the liability of the club pursuant to Article 6, as also provided and referred to in the Code, the judge shall assess the adoption, suitability, effectiveness and actual functioning of the organisational, management and control model referred to in Article 7, paragraph 5 of the Statute.”

It is clear that the measures to be adopted to safeguard the integrity of the sports environment are of particular importance in the football sector due to the structure of the system and the widespread presence of federal activities throughout the territory. The obligation to adopt organisational models and codes of conduct, as outlined in the FIGC guidelines, directly affects the internal organisation of clubs, requiring the introduction of specific safeguards even in traditionally less structured contexts, such as youth sectors, football schools and amateur clubs. This reflects a gradual shift from a purely disciplinary dimension to a preventive and organisational logic, in which the Federation assumes a guiding and coordinating role and clubs are required to integrate safeguarding measures within their organisational, management and control structures, with significant implications also in terms of the liability of sports entities.

On 25 September, 2023, the Federal Council of the Italian Tennis and Padel Federation approved the Regulation “on the prevention and combating of abuse, violence and discrimination against registered members” and the “guidelines for the preparation of organisational and control models for sports activities and codes of conduct for the protection of minors and the prevention of harassment, gender-based violence and any other discrimination.”

A further example is provided by the Italian Equestrian Sports Federation, for which the implementation of Article 16 of Legislative Decree No. 39 of February 28, 2021, presents particular specificities linked to the individual nature of the discipline and the direct and continuous relationship between athlete, horse, coach and training environment. The federal safeguarding guidelines significantly affect the organisation of riding clubs and affiliated centers, requiring the adoption of organisational models and codes of conduct suitable for managing sporting environments in which the organisational dimension is often simplified, but interpersonal relationships are particularly intense and continuous. In this context, safeguarding measures assume a structural function, aimed not only at repressing unlawful conduct but above all at preventing risks systematically through the introduction of organisational safeguards, accountability obligations and reporting channels designed to ensure the effective protection of athletes (especially minors) and horses.

Many other federations, particularly those more exposed to risks of gender-based violence, have adopted similar measures concerning the adoption of the aforementioned sports prevention model.

This model will focus on those instances of gender-based or racial violence, harassment of minors, and similar conduct which are more likely to occur in the sports context and are specifically referred to by the enabling legislation.

Where a club has adopted a Model 231, it is therefore be appropriate to coordinate it with the so-called sports prevention model.

Following the now well-established experience of Model 231, sports prevention models must also be built on the basis of prior risk mapping and assessment and must provide, where necessary, for their updating.

The mapping process must assess risks common to the entire sports system and relating to offenses that, in judicial proceedings, have led to the liability of clubs.

In light of the risk assessment activity, clubs may adopt a procedural system proportionate to the risks of unethical conduct and relevant for the purposes of liability under the Sports Justice Code.

With the progressive compliance of all National Sports Federations, Sports Promotion Bodies and Associated Disciplines, the phase of drafting and adopting models for all Associations and Sports Clubs will now follow, marking a further step toward compliance in a sector of enormous social importance such as sport.

It is therefore not only appropriate but indeed necessary for clubs to adopt continuously updated models, in order to avoid exposing not only their governance but also the entire associative structure, and thus, in practice, the athletes, to the risk of disciplinary and criminal consequences, especially where, for logistical, social or economic reasons, certain sports organisations operate under the constant specter of possible abuses on the one hand and the commission of offenses on the other, particularly considering that the most common offenses in a sports context may be financial or tax-related, as daily practical experience demonstrates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.