Web statement on World Karate Federation Rule 21.9
– digest and personal comment from Oliver Wood, legal advisor on the KE Board
In this note:
KE – Karate England
SE – Sport England
WKF – World Karate Federation
EKF – English Karate Federation
I. What is Rule 21.9?
“Rule 21.9” forms part of the statutes of the World Karate Federation („WKF‟) and provides as follows :-
“The WKF expressly prohibits their National Federations, and their components, from the double affiliation with any karate organisation as it may be determined by the WKF Executive Committee to be a dissenting organisation.
National Federations and their members are prohibited from having sporting relationships with these dissenting organisations and with organisations not recognised by the WKF, …”
The English version of the Rule at least is clumsy and poorly drafted, but without any doubt, in using the term „sporting relationships‟ the Rule does altogether prohibit anyone within the WKF following (that is to say, all individuals training in WKF-affiliated clubs) from competing against anyone who is not within its following, and this is exactly what supporters of the Rule have vociferously, though selectively, tried to enforce. Of course, on a plain language reading, the term „sporting relationships‟ goes very much further – the Rule would apparently ban any sporting contact whatsoever, from organisational links, to training, to even talking sport with a non-affiliated individual. The suggestion is ludicrous.
On rare occasions when WKF has felt any degree of pressure over the existence of the Rule, it has come up with what appear to be weak public relations exercises attempting strained interpretation of the Rule, apparently looking for just enough confusing „wriggle room‟ for it to feel it has sufficiently deflected criticism. It has, at the end of the day, never done anything except seek to maintain and enforce the Rule. It would appear that WKF as an organisation is not presently „big enough‟ to acknowledge that the Rule is simply a bad one which is not operating in the interests of karate generally and which should be removed. It would appear that WKF cannot accept it has made a serious mistake in creating it.
In particular, no credible justification is ever given for the Rule, and it seems that WKF cannot entertain the idea that there should be a critical debate about its existence: the message is apparently „that‟s just the way it is‟ – and everyone is just expected to accept it. Unfortunately for the WKF there are many individuals out here who are thinkers; and not only that – thinkers who are committed to principle.For four very clear examples of how Rule 21.9 has been used by its supporters to gratuitously mess up the world of karate, see Section IV below.
II. How the Rule comes to be “in force”
A) On the international level WKF and the Olympic authorities
Rightly or wrongly, the Olympic authorities have recognised WKF as sole world governing body for the purposes of all matters Olympic, which means that if a karateka aspires to campaign for or eventually participate in karate as an Olympic event, it seems they would currently be obliged to do so through a WKF-affiliated body at national level.
The Olympic movement states in its own words in the Olympic Charter, under the heading of Fundamental Principles of Olympism, paragraph 4:
“The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play…”
So how could the Olympic authorities properly give recognition to an organisation whose own (WKF) Rules are divisive and exclusionary, contradicting the specific and express Olympic ideals of non-discrimination, and mutual understanding with a spirit of friendship, solidarity and fair play? It seems that either the Olympic authorities did not do their job properly at the point of recognition or at least do not adequately routinely police those organisations they have recognised on a continuing basis – or any commitment to the fine words enshrined in the Olympic principle was clearly to be lightly sacrificed without any real value being attached to them. In view of history, one is inevitably drawn to conjecture whether any personal links or other motivating factors may have been involved „behind the curtain‟ at the time of the Olympic authority decision to recognise WKF, but this does not particularly interest me here.
What is clear is that there is incompatibility between the stated Olympic ideal and the Rules promulgated by the WKF as one of its recognised governing body authorities. The solution: either the WKF itself should recognise the incompatibility of its Rule 21.9 with the Olympic ideals and scrap it; or the Olympic authorities should police the organisations it recognises as governing bodies and direct the WKF to do so.
This is important because the public is encouraged to believe in the Olympic movement as being the highest-point of sporting prowess in the context of highest standards of openness and fairness. This fine ideal is incapable of being delivered so long as Rule 21.9 is allowed to subsist.
B) On the national level
Quite apart from the Olympic authorities recognising WKF as its sole international governing body for karate, in turn, WKF can and does recognise a sole governing body for karate at national level for each individual country. In the case of England WKF has for the time being recognised EKF. KE think this recognition should never have been given / approved, since EKF represent a minority of participants in karate across the country (for clear recorded evidence-based reasons, we believe EKF represents less karate participants than does KE). There are other fundamental and entirely reasonable objections to the WKF recognition of EKF which were put in detail (in a comprehensive reasoned legal analysis of the minority representational circumstances and the democratic weaknesses and defects in the EKF constitutional set-up) to WKF prior to the recognition decision. The document was addressed simultaneously to the WKF Board and individually to its President, and delivered by various means including electronic and hard copy; furthermore, an attempt was made by two former WKF world champions (Abdu Shaher and Molly Samuel-Leport) to hand-deliver a copy of the document in person by appointment at an international WKF gathering – but the whole approach was snubbed by WKF who would not even acknowledge the documentation as having been received, never mind make any effort to respond to its content.
How could such a recognition of EKF have been given or agreed to? Inevitably, the same thoughts emerge as alluded to above in connection with the recognition of the WKF by the Olympic authorities. The thinking world of karate has some major issues with the WKF. It suffices here to say that the WKF‟s administrative processes and public behaviour have been shown to be wholly inadequate and inappropriate for an international governing body – publicly, independently and quite comprehensively criticised for all to see in at least one high-profile reported international arbitration case (Court of Arbitration for Sport case ref TAC2003/A/443 Slovak Karate Union v. WKF – available as a PDF file downloadable from the same place on the Karate England website as this document). The recognition by WKF of EKF, as willing adherents to the WKF Rulebook, simply operates to carry on the wrongs of the WKF Rule 21.9 at the national level.
III. Three good reasons why Rule 21.9 is ridiculous
I identify three counts on which I think the Rule can fairly be said to be ridiculous:
A) The function of a sport governing body must be to govern all bona fide participants in the sport concerned
The function of a sport governing body which seeks to be acknowledged as the governing body at any level, must be to govern all bona fide participants in the sport concerned – or at least to ensure that its doors are always open to all those participants who wish to come within the umbrella of that governing structure. As such, no credible governing body or other sporting authority wishing to be seen as an over-arching organisation – with a view to laying claim to „the world governing body‟ or „the national governing body‟ title – could reasonably support the existence of, or enforce, a rule such as 21.9: the objective of becoming „the‟ governing body in any context whilst simultaneously pursuing a course of action whereby legitimate participants in the governed activity are excluded from involvement are wholly inconsistent and incapable of subsisting together, the two are mutually exclusive.
Let us just reconsider for a moment the exact wording of Rule 21.9:
The Rule specifically provides that „[WKF] National Federations, and their components’ are prohibited ‘from the double affiliation with any karate organisation as it may be determined by the WKF Executive Committee to be a dissenting organisation’; and that‘National Federations and their members are prohibited from having sporting relationships with these dissenting organisations and with organisations not recognised by the WKF’
A quick read of the wording reveals that the Rule itself explicitly acknowledges the existence of other valid karate organisations representing legitimate karateka outside of the WKF „family‟, and straightforwardly seeks to prohibit its own „family members‟ from having any sporting relationships with them. It follows that WKF cannot logically claim to be the governing body of karate at any level – merely a governing body of part of the world of karate, not involving those other branches or populations of the world of karate which the WKF itself through its Rule 21.9 has declared to be outside its interest. WKF‟s own actions and decisions to create and enforce Rule 21.9 preclude the possibility of it becoming the whole sport organisation it apparently aspires to being.
Since observance of the Rule is a pre-requisite for all other bodies which the WKF itself recognises, then the same necessarily goes for all those other WKF-recognised bodies who apply and enforce Rule 21.9 at WKF‟s behest on national and other levels – automatically, none of them are capable of being whole-sport governing bodies.
WKF can of course quite rightly state that it is the international karate governing body recognised by the Olympic movement – for so long as this is correct – but this „recognition of label‟ in itself neither has any effect at all on whether or not the WKF is the de facto principal governing body at world level for any purpose other than Olympic5matters, nor does it do anything whatsoever to engender respect for the WKF whilst it persists in excluding participation for nothing other than bare political reasons.
B) Merit-based competition ‘on a level playing field’
If the motivation behind organising sporting competition (eg to arrange and hold an Olympic karate event – or otherwise at world, international, national or any other level) is to find a true current respectable merit-based champion (based on whatever objective criteria may be thought proper – eg age, weight categories, technical rules etc), such an objective is simply not achievable so long as competition is conducted in any environment where Rule 21.9 subsists and is being observed.
In Section IV I detail certain events which have been disrupted or distorted by reason of the application of Rule 21.9 and more fully explain this point. If we take for example the British Universities or the Danish Open events as discussed in that Section, the effect of the application of Rule 21.9 has been to necessarily devalue the competitions in question and demote the winners to the status of „half-champions‟, since other perfectly capable prospective competitors – who will have risen to the top amongst their own large and well-developed karate communities – have simply been prevented from competing. The only thing a title winner at such an event can honestly claim is to have won a title in part by default – how can anyone claim this helps either the credibility of individual events or karate generally?
I have heard others make the point with a very simple theoretical analogy: Eusain Bolt (or whoever else it may be at any given time) is currently the „fastest man on earth‟. If it turns out he is not affiliated to the „approved governing body‟, does that mean he is no longer the fastest man on Earth? – or that the slightly slower but appropriately affiliated „winner‟ is the fastest man on Earth?
For a governing body to persist in organising or influencing or manipulating the running of competition events whilst at the same time being absolutely responsible for the arbitrary exclusion of worthy contenders at such events is a farce, and such discrimination simply debases everything that governing body does.
C) Modern thinking: inclusivity and freedom
What business is it of any sport governing body, whom I as a „sport participant‟ choose to talk to about, or train or associate with to develop, my sporting activity? The idea that an organisation which wants to be acknowledged as a sport governing body should be able to arbitrarily exclude myself and others like me and/or with whom I am linked from membership and participation simply because of who we associate with is abhorrent, and such an organisation does not deserve to be taken seriously.
Rule 21.9 is completely out of step with all present-day thinking on personal liberty in the democratic world; it is divisive and absolutely contrary to the ideal and spirit of freedom of association, one of the most basic fundamental rights recognised and protected by human rights law internationally and is therefore wholly incompatible with what should be the ideals of any sport governing body in the modern civilised world.
For the full discussion on the fundamental freedoms issue, see Section V. B below.
The word „ridiculous‟ is not used lightly in this Section – it means what it says, that the „(would-be) governing body or other sporting authority which supports the existence of, or enforces, Rule 21.9 renders itself subject to ridicule‟ by reason of blatant and illogical self-contradiction („you claim to want to be the people‟s representative, but you don‟t want to represent the people‟); because it wholly deprives itself of any respect by reason of total failure to commit to the most basic general principle of open non-arbitrary fairness in sporting competition („we‟re looking for a champion, but only from amongst those individuals who we have pre-selected on criteria which have nothing to do with sporting merit‟); and because it flies in the face of the guaranteed enduring public and personal freedoms which have been developed conscientiously and which are now defended vigorously throughout the modern civilised world.
IV. Specific examples of Rule 21.9 being used to disrupt or distort the harmonious progress, development and practice of karate; adverse effects on individuals discriminated against.
A) British university championships
Universities in the UK are at least generally part funded by the public purse; they are almost universally regarded and respected as being – and are expected to be – the fiercely independent bastions of free-thinking and the home of intellectual fairness. Yet despite this, over the last two years there has been a problem with the main inter-university „open‟ karate event.
The event in question is the Karate section at the British Universities and Colleges Sports (BUCS) competition and participants from all university backgrounds are welcome to compete for titles in various categories.
In theory, winners and best runners up would automatically be admitted into a selection process to represent British universities in the European extension of the competition, organised by the International Universities Sports Federation (FISU). However, FISU recognises WKF due to its Olympic status and the competition operates under WKF technical regulations and the university authorities organising the British element of the7event state they „believe‟ in addition that the event conforms to WKF statutes, including Rule 21.9.
Whilst the universities have been content to allow all-comers to participate in the national stage of the event, they have applied Rule 21.9 discrimination against event winners and other competitors in that they have very deliberately not gone on to consider any non-WKF-affiliated individual for further stage selection. Although the problem has been very firmly brought to the attention of the universities and objected to in the strongest terms on behalf of those students who have been excluded, the universities have been content to fall-in with the Rule without apparently raising the slightest objection to it.
Upon pressing the case the universities (BUCS – the British Universities & Colleges Sports national governing body which – in its own words – exists to enhance the student experience of sport, in particular with regard to performance, competition and participation) have finally confirmed that, in view of Rule 21.9,
“after careful consideration we [the universities] would be compromising the position of athletes [ie the ‘acceptably WKF-affiliated and therefore properly selected athletes] if we were to consider for selection or select any non WKF athlete. Furthermore we believe that other home nation bodies recognised by the WKF would have little choice but to withdraw their athletes from selection as they would not wish to risk their status with the WKF.
We will therefore continue to endorse the ruling that any athletes wishing to be considered for selection for the World University Championships should be members of the World Karate Federation …”
In a previous communication which formed part of the exchange of correspondence which led to the passage quoted above, the universities stated that they had
“ … been informed that should we [the universities] select an individual for the World University Championships who is a non WKF athlete then all four [home nations] in Britain will be obliged to withdraw their athletes.”
Because of this approach to implementing Rule 21.9, over the 2008 / 2009 period certain of the title event winners as well as numerous thoroughly worthy merit-based runners up have been excluded by the UK universities from selection for the European stages of the international event. This means that British universities are not fielding their best teams on the international stage. British Universities have allowed themselves to be dictated to; they have allowed their selection policy to become polluted and corrupt by observing Rule which is offensive to the principle of objective performance merit-based fairness.
As stated, the arguments about fairness and performance merit-based competition and about the arbitrary discrimination that occurs when Rule 21.9 is allowed to be enforced have been put forward very clearly and very comprehensively to the universities, and KE continues to vigorously challenge them about their non-merit-based selection practices – but the universities have made it clear that there is currently no prospect whatsoever of them changing their mind voluntarily: whilst they regard the situation as being „unfortunate‟, their attitude is that the situation “… is one that is caused by the sport of karate …” and therefore has nothing to do with the universities. It seems that the frustrated aspirations of certain most-deserving athletes are regarded by them as matters which can happily be ignored, as they obviously do not rank highly on their scale of importance.
Comment on the individuals in the British universities responsible for not making a stand against Rule 21.9 and not selecting on the basis of performance merit only
In behaving as they have, the British universities are effectively saying „we consider that we completely satisfy our obligations to our students by allowing all-comers to compete in our national stage; yes, we then slam the door in the faces of those who are successful, but this is only because there is a Rule which tells us to do so – OK, it is a discriminatory political Rule which has nothing to do with performance merit, but a Rule is a Rule, and because the Rule is laid down, we have to obey it. You understand that it is not our Rule – choice of Rules has nothing to do with ourselves, and in any case the whole Rule issue is a problem for the world of karate – that sort of thing is none of our university business, our hands are tied …‟. The universities should realise that all this is equivalent to the wholly miserable „underlings‟ defence: „I was only following orders‟.
It is notable that nowhere in the communications with the universities have we seen any incontrovertible commitment to performance merit-based selection – the position they have adopted on this matter of course, precludes it. How can a sports development/access/excellence body stand idly by, obviously paying nothing more than lip-service to the ideal of open „level-playing-field‟ competition? Whatever happened to the maxim „may the best man / woman win!‟? The universities‟ sports development body is just about the very last place that I personally would have expected to see such weak apathy – I have been nothing less than astounded at the lack of enthusiasm which has been encountered here to support the principles of fairness and equality. Those who have seen fit to accommodate – more precisely appease – Rule 21.9 clearly lack „backbone‟ and any preparedness to get involved in standing up for what is right.
In the face of threatened exclusion or other WKF-sanctions against a larger group of athletes from the international stages, the universities have demonstrated a total lack of courage and buckled. Plainly and simply, they have completely deserted principle and given-in to bullying. The reality that people enforcing Rule 21.9 in this matter feel they need to threaten not only exclusion of the English competitors but of the whole British team, is to my mind very telling of just how scared they must be: it is offensive to all that is right and proper, and I take the agitated „ratcheting-up‟ of the situation going on here as a clear indication that someone behind the scenes knows within themselves that they are backing an improper and unsustainable position. It looks to me as though such a threat is made simply to stop people „rocking the boat‟ and to prevent a comfortable arrangement from coming unstuck – with the further simultaneous intention of preventing the possibility of any proper grown-up debate taking place.
I think the universities ought to be calling the WKF/international organiser‟s bluff on this point, select on the basis of performance merit only, and in anticipation of reaction, be prepared to ask the organising authorities what sort of credibility they seriously think their event and their organisational structure would retain if it did as apparently threatened and went on to exclude or otherwise sanction whole national teams. If such wholesale exclusions ever did take place I think it would cause an immediate crisis – I would expect other nations to pull out or threaten to boycott the event and this would cause the rapid and total collapse of the competition as it is currently organised. For this reason, I do not believe that the organisers could be so foolish as to even seriously contemplate trying such wholesale exclusions, although even if they did (since we are talking about individuals who are clearly unreasonable enough to have introduced and be supporting Rule 21.9 in the first place), I reiterate that I believe behaviour provoking them would have been taken for all the right reasons.
The university selectors have refused to stand up for the principle of open performance merit-based competition and start asking the awkward questions – they have preferred to pretend that the issue does not involve them and have instead elected to bury their heads in the sand. They have expended the interests of the most-deserving few in favour of expediency to benefit a numerical majority. Do the universities have any mandate for this behaviour? – have they asked the prospective competing university students as a class themselves what they would wish to happen here? I wonder whether the students would be so reticent about standing up and being counted together in resistance to discrimination and in defence of open competitive integrity for the common good. I personally believe the competing students themselves would wish to see only the best performance merit-based teams fielded by the British universities: the whole work-ethic of university life is that you work hard to achieve and that achievement is the predictable reward for hard work. That unwritten law is being interfered with here – and the interests of students are not being safeguarded by the very individuals who are supposed to be doing just that.
Specifically on the legal issues
As well as making the appeal to good morals and common sense on the fairness and open competition points, the universities have been specifically invited to refer the legal issues (detailed in Section V below) to their own legal advisors for consideration. Within the university establishment – the centre of academic thinking and legal research in all fields of law – would be one of the very best places to have the whole legal issue independently thoroughly considered. To my mind, the very least that the universities should do, would be to seek guidance on the legal matters raised from their abundant resource of legal experts: it would be a most natural step for the universities to consider the matters raised „amongst their own‟ – they have unlimited access to law faculties full of expert academic specialists who in my own experience will likely be only too pleased to become involved with reviewing and clarifying an issue of the type that concerns us here.
In referring this matter to the legal academics the universities would have absolutely nothing to lose: if – as I would not expect – those experts ended up giving clear opinions which contradicted the KE position set out in Section V of this note, then the universities would be able to go on as they are, applying Rule 21.9, ignoring performance merit-based selection, and arbitrarily discriminating against deserving prospective competitors on the basis of political affiliation only – absolutely without any compunction on their part: their position would be entirely vindicated.
If on the other hand those experts were then to give clear opinions which were in line with the arguments raised by KE – as I would fully expect – condemning the current Rule 21.9-compliant university selection policy, the universities would at least have the seal of approval of an extremely powerful bank of academic thinking that would provide it with all the ammunition it could need to convincingly confront the higher international organising authorities in order to have the situation put right. The universities might very briefly suffer some temporary embarrassment through being seen to have got it wrong to begin with, but this would be a relatively very minor issue – and all the greater would be their credibility for being „big enough‟ to recognise a wrong and for becoming a champion to take steps to put it right for the sake of all students.
And yet the universities sit resolutely on the fence. Why will they not even explore this avenue? Why do they seem to lack courage? Surely the Rule 21.9 issue goes straight to the heart of what BUCS declares itself to be all about: enhancing the student experience in the three key areas of performance (encouraging excellence, perhaps through open competition and co-operative co-existence amongst individuals in line with the Olympic ideals referred to in Section II above?), competition (presumably – at least implicitly – on the basis of fair-play and open performance merit), and participation (inclusivity, involving all-comers without arbitrary discrimination of any kind). In observing Rule 21.9 BUCS fails on all counts. Are there hidden vested personal or organisational interests at play, preventing the proper progress which would truly be in the best interests of sport development? As far as I am aware, no effort whatsoever has been made by the decision-makers in the universities in this direction. Lack of effort to resist the arbitrary effects of the Rule and compliance with bullying from higher up the international organiser chain are conspicuous, and I do wonder why.
In the name of fairness and equality for all students, a ground-up change of heart is needed. The universities will have to show a rather more dynamic resilience to unreasonable pressure and a far greater commitment to doing their job „right‟ in future before they will be able to command my respect
B) London Youth Games 2009
For many years a „London Youth Games‟ event has taken place on an annual basis and this has included karate – at one point, karate was the second largest participant sport behind football. The event has traditionally been open to all youth who practice karate in the London Boroughs offering a welcome opportunity for young practitioners to mix and compete together, to share ideas and form friendships. Rule 21.9 was in existence throughout much of this period, but was never invoked or seen as an obstacle to inclusiveness. Karate England has freely given its open support to the organisers of this event.
Some months prior to the 2008 games, EKF complained to the LYG organisers about non-observance of Rule 21.9, seeking to have all non-WKF-affiliated competitors excluded. LYG refused to comply with this request, maintaining that the event would be an „open‟ one. Karate England applauded this commitment to open fairness and inclusivity.
In 2009, EKF decided to issue an edict prohibiting anyone affiliated with it from partaking in the event. In May of that year, EKF posted a statement on its website that as the LYG event was not being run in compliance with WKF Rule 21.9, individuals affiliated to EKF were prohibited from participating in the event – the statement added that anyone found so doing “… WILL face EKF disciplinary procedures”.
The result: LYG „rested‟ (dropped) karate altogether from the 2010 games.
C) Danish Open 2009
The Danish Karate Forbund organised an open international event for October 2009. Karate England was keen to back the event with competitors and the Chairman of the Elite Council of the DKF very specifically confirmed that the event would be “ … an open karate tournament, which means it is open to ALL karate federations and individual clubs (whether affiliated to WKF or NOT.” The DKF confirmed they were looking forward to welcoming Karate England at the tournament.
Although one might ask what business Danish karate is of EKF, EKF decided to meddle here and made a complaint about this on the basis of Rule 21.9 to WKF. Shortly afterwards, in great personal embarrassment to the individuals concerned, the DKF found itself backed into a corner and felt forced to withdraw the open invitation. One might question whether the situation is another example of someone within the WKF-following – in this case the DKF – not standing up for the principle of open competition regardless of the pressure being applied, but their decision was their decision and this must be respected. What is not in doubt is that the whole debacle is another example of a hollow „victory‟ for EKF and other supporters of Rule 21.9: the only consequences here were division, antagonism, needless frustration in the world of karate, and not least the debasing and de-valuing of the tournament itself: the politics ensured that the open competition, was in fact not open at all.
D) Scottish Karate Governing Body and KUGB Scotland
Similarities here with the Danish Open situation: EKF recently meddled by complaining to the Scottish Karate Governing Body (SKGB) – who are recognised as the Scottish National Governing Body by Sport Scotland and WKF – that the Karate Union of Great Britain’s (KUGB) Scottish members were having sporting relations with KUGB English members who are not affiliated to the WKF, thereby causing SKGB to be in breach of rule 21.9. SKGB consequently suspended KUGB Scotland from its membership – one of its largest member groups – thereby denying the rights of hundreds of Scottish karateka to the benefits afforded through a nationally recognised National Governing Body, and also cutting off certain much-needed funding support for worthy karateka who have received and benefited from it previously.
The position is currently being challenged by KUGB, and whilst – unlike in England – there is currently no non-Rule-21.9-supporting alternative to SKGB in Scotland, the EKF intervention and the subsequent behaviour of SKGB means that those resisting the Rule who have been deprived of governance benefits – in particular funding – through SKGB etc will have no alternative but to be obliged, on the basis only of absolute fairness, to make all efforts to interrupt all Sport Scotland and lottery funding programmes channelled through SKGB for all karateka in Scotland on the basis that public funding support for SKGB is now unlawful (see Section V). If public money is going to be made available for karate, then it should be applied to benefit all in karate – if not that, then there should be no public money going to benefit anyone in karate at all. Fuller details on this situation are set out in Section V. B below.
Comment on the individuals in EKF who are responsible for the LYG, Danish Open and SKGB interferences
How nice, and what splendid victories these disruptions are for harmonious progress in karate!
The „victories‟ – if that is what they can be called in anyone‟s estimation – are of course but hollow and likely to be short-lived, serving no useful purpose.
I wonder how the EKF individuals responsible for this type of disruption can have the „brass-neck‟ to look at themselves in the mirror and pretend that these pointless divisive interferences are in the interests of karate generally? Shame on them. How could they so lightly and unnecessarily extinguish the hopes and aspirations of all those worthy individuals who would have relished the opportunity to be involved in these events in contest against the best of the best amongst all-comers, and indeed of all the positive-thinking hard-worked organisers who put in their personal efforts to make something truly special happen? I pity all the wasted opportunity for free co-operative competition and substantial funding-backed development which karate and those involved with it could have enjoyed in a co-operative atmosphere and which would have made our karate all the stronger – but which will continue to be lost until the position changes and all karate participants are embraced together „without fear or favour‟.
The moral and in particular legal (Section V) arguments have now been put to SE exhaustively in order to prevent any organisational-supporter of R21.9 (eg EKF) from ever being lawfully recognised by SE, and as already indicated are similarly in the process of being put forward to Sport Scotland with a view to identifying their continued support of SKGB as unlawful.
EKF might not previously have been aware of all the issues, particularly the legal issues, at stake here – but if they have any genuine interest in the long-term development and proper governance of karate generally then they will have no alternative but to confront them now.
V. Challenging the existence of Rule 21.9
A) Direct challenge against the Rule and / or the organisations and bodies who uphold and enforce it
From a legal point of view, it is not straightforward to challenge the existence of Rule 21.9.
Direct legal challenge to the Rule would be where, for example WKF or one of its recognised national bodies supporting or enforcing / applying the Rule were brought before an appropriate court or Tribunal specifically to test whether the existence of the Rule is lawful.
There are some real difficulties with the direct challenge approach. The main problem is that a court etc can only be an appropriate forum for reviewing the activities of a governing body if it has jurisdiction to do so and even then, it can only declare some decision or behaviour to be unlawful if there is valid applicable law in place which controls the situation. There simply is no system of „international governing body law‟ which sets out what is lawfully acceptable behaviour or otherwise for international governing bodies, and certainly no „international governing body law court‟, so to start with, on the face of it a governing body can pretty much make and apply whatever rules it likes, however unfair they may be.
The best hope of controlling bad behaviour on the part of governing bodies might then seem to rest with administrative law which has emerged over time on the national level to keep public authorities in check. All well-developed national legal systems will have laws in this area, and in the UK certainly there is a well-developed body of law which has grown up to ensure that the citizen does not suffer at the hands of the state – the laws here are to make sure that no council or other governmental decision-making authority etc acting in the name of the public at any level can abuse the citizen by treating them unfairly, against natural justice, arbitrarily, without hearing their side of the story, or in a manner whereby no reasonable authority if it took all the circumstances properly into account could ever reach such a decision.
This all starts to sound highly relevant to the governing body issues involved with Rule 21.9, but the question then becomes whether or not the courts will treat a governing body as being a public authority – in which case it would be caught by all the requirements to act fairly – or not, in which case the body will be treated as a private club or association and all the rules on public fairness etc will simply not be relevant.
Directly challenging the Rule internationally
Firstly, the Rule is created by WKF, which is an international organisation. International law deals with relations between states, not private organisations such as governing bodies. The rules which govern relations between an international organisation such as the WKF and those who have dealings with it are governed by private national laws (local law) and which ones are relevant will depend either upon what national law WKF has „agreed‟ will govern its relations with any given organisation with whom it deals, or upon which law is local to either the WKF or those who have dealings with it in any given case – where no law is specified or „agreed to‟ by the parties involved, there are particular rules for determining which laws will be applicable. So even identifying which national law would be applicable to controlling WKF behaviour presents significant obstacles – and this alone would theoretically inevitably lead to inconsistencies if the Rule 21.9 problem were diligently followed up internationally because of the application and enforcement of a whole range of different systems of private international laws. This would not be good for karate generally.
Even more significantly, the WKF effectively only exercises its power through third parties who are independent of WKF itself, that is to say WKF will recognise another organisation – a governing body at national level – which as part of the recognition process will be required to accept, adhere to and implement the WKF Rules. On a national level, there is in fact therefore no direct link in dealings between anyone who may be adversely affected and aggrieved by the application of Rule 21.9 and the organisation which is responsible for creating the Rule, so direct legal challenge against the Rule at its source would be very complex, if possible at all – certainly not an attractive proposition.
Directly challenging the Rule within the UK
UK caselaw (judge-made law resulting from decisions made by judges hearing actual cases – relevant for Scottish and other UK areas on this subject) works on a system of „binding precedent‟ whereby, in a nutshell, if a previous decision has been reached by a court, then judges acting in a court which is at the same level or at a lower level than that of the earlier court, and who find themselves dealing with any new similar cases, will be obliged to follow that precedent and decide the new case in the same way as the previous one. This is intended to ensure that the law develops consistently and logically – cases which are the same in terms of facts, will in theory always be decided in the same way, producing the same legal results. A new case can always be decided differently, if it can be distinguished from the previous decision, that is to say, if it can be shown to be different on the facts in some material particulars.
Unhelpfully for those who would call Rule 21.9 into question, UK case-law has (in a case concerning the Jockey Club) determined that a sporting governing body is generally to be regarded as a „private club‟, able essentially to make and require observance of whatever rules it sees fit – however arbitrary these may be – and there has been some strong resistance by the courts to any suggestion that the workings of the governing body in this sense should be regarded as behaviour of a „public authority‟. In other words, when it comes to fairness and arbitrary behaviour, caselaw is apparently telling us that in England we should expect a lower standard of behaviour from, and much less opportunity to judicially review the behaviour of, a national sports governing body, than if the governing body were an organ of the state – in short, the courts are telling us that arbitrary and unreasonable behaviour on the part of a sports national governing body escapes scrutiny and should be regarded as perfectly acceptable.
This seems very unfortunate and rather artificial to me – in fact it seems like a judicial „cop-out‟, which certainly does occur from time to time where judges seem to lack the necessary back-bone to do what is right, and find instead some other reason to justify deciding a course of action which avoids the need to show a little courage or which ruffles the fewest feathers: if in any sport there is in reality only one governing body in existence with no alternative body to deal with, then logic dictates that the role it exercises must be seen as being a public one – and if the courts are not prepared to recognise this, then they are saying that arbitrariness may rule unchecked amongst those who govern whole sports. This seems to me to be wrong in principle.
There might well in fact be room for distinguishing the sport of karate from horse racing in order to get around the binding precedent issue explained above: whereas the Jockey Club might have a limited or very limited number of prospective members who are actively engaged in jockey activity, and these coming from very restricted backgrounds and sources (obstacles to entering sport as a jockey are significant – for example, you need the funding / backing and all the resources necessary to maintain a horse) and consequently it might be fairly straightforward to assert that the activities of the Jockey Club are indeed relatively very small-scale and by their essential character very much in the manner of a private club, not having any significant public impact. The same cannot be said for karate where large numbers of participants and a much larger proportion of the sport-engaged public are involved, enjoying very easy access to the sport. In my view the position apparently held by the courts in the Jockey Club case – that the sport national governing body is not a public authority – becomes highly questionable, if not untenable. Although I would certainly not suggest that a national governing body could properly be regarded as a public authority organ of the state, the fact that such a governing body exercises an obviously public function seems to me to be beyond question – something which is easily recognised at a common sense level by the public at large. I would assert that wherever a potentially very large group of the public stand to be affected by the activities of a single national governing body, it must be in the public interest that such a powerful governing body is acknowledged as being a public authority precisely to ensure that good standards are maintained. I suggest that bodies exercising a public function are a bit like elephants – we all recognise them when we see them, whatever labels people might want to attach to them, and I feel the public is entitled to expect better than to be told otherwise by the judiciary.
I can imagine some voices saying „quite a bit of detail here, is it really necessary to explain all this? – the reason why it is important is because the above decision on the Jockey Club is precisely the defence that the Scottish Karate Governing Body lawyers have given to lawfully excuse the SKGB decision to implement Rule 21.9 and expel KUGB Scotland from what is currently the only publicly recognised karate governing body in Scotland. I am personally very disappointed that SKGB has seen fit to rely on such a purely technical legal defence to shy away from the standards and openness we all expect in public authorities, in order to justify maintaining a rule (Rule 21.9) which denies open competition and access to sport to all-comers, and to justify arbitrary expulsion action. This is not impressive and the individuals concerned at SKGB should certainly not be proud of themselves. They cannot claim that they are acting in the public interest, and they have now put themselves decisively – if perhaps unwittingly – in the position of no longer being able to claim that they are the governing body of karate in Scotland: they have marginalised themselves, they are – of their own free choice – now merely a governing body of part of karate in Scotland.
So much for my views on the governing body case-law issue – the bottom line is, going to court on an unpredictable ticket risks being very costly, even if it would be the right thing to do in theory and would turn out to have been the right thing to do in hindsight.
B) A better option? – Indirect challenge to Rule 21.9 on the basis of infringement of a fundamental freedom
Is there another more straightforward way to challenge Rule 21.9, without taking the risk of losing an expensive „governing body case‟ (challenging the governing body directly) as outlined above? I think so, yes.
What is the essence of Rule 21.9? It is all about the curtailment of the basic freedom of association: the rule seeks to prohibit „sporting relations‟ between those individuals within the WKF-following who it does control, and those outside the WKF-following who it does not. „Sporting relations‟ must capture all sporting competition, training, and contact and communication of whatever nature. Echoing what has been said above, in short, according to the Rule, no-one within the WKF-following is even allowed to talk to anyone about karate with anyone else outside the WKF-following without breaking the Rule.
Article 11 European Convention for the Protection of Human Rights and Fundamental Freedoms
Article 11 European Convention for the Protection of Human Rights and Fundamental Freedoms („the Convention‟) provides:-
“Article 11 . Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Freedom of association is generally taken to mean an individual‟s right to come together with other individuals and collectively express, promote, pursue and defend common interests, and we assert that the freedom of karateka and those involved with the sport andpractice of karate to train and associate with whomsoever they please in the pursuit of their interests at whatever level falls squarely within such a plain interpretation of the phrase. Consequently, it is our considered view that Rule 21.9 is squarely in breach of the Article 11 Convention right.
In particular where highest elite levels of showcase competitions are concerned – the classic case being the Olympic games – where, for a clear example, the Olympic authorities will only recognise one international governing body for any sport and subsidiary to this only one national governing body for any sport, there can be no doubt that a prospective athlete who has his / her involvement interfered with because of Rule 21.9 thereby also necessarily has his / her fundamental rights interfered with as well. As if they were needed, academic authorities in this area – ie the individual experts who write the text books on this field of law – have specifically referred to sport in this connection: „[convention rights] may apply to a decision to exclude someone from an association, where the effect is to prevent them from pursuing a sport or pastime, if this is a genuine part of their private or family life‟ („Human Rights in the UK 2nd ed. – David Hoffman & John Rowe QC).
It is however, on this issue, quite unnecessary to consult anything more sophisticated than common sense: in this day and age it is perfectly normal for athletes and sports stars of all types to „earn their living‟ (of course sometimes vast sums of money) from competition earnings and then because of consequent public popularity, subsequently through advertising endorsements etc – in all cases these opportunities being derived from original access to participation in sporting competition. I am here absolutely uninterested in whether a future Olympic karate champion should become a multi-millionaire to rival for example top tennis players or athletics stars – but the point is made to illustrate that there is no distinction whatsoever in principle between such a potential karate champion and such tennis players and athletics stars, in other words the importance of free access to competition without infringement of a person‟s private right to freedom of association is even on the most banal (but potentially highly significant) level of financial value, clearly not just a trifling matter – livelihoods and more might be at stake.
There is only one Olympic Games, so it is inarguable that exclusion therefrom could be „compensated‟ for by involvement with some other event – there is no viable alternative to reaching the Olympic pinnacle in sport. Karate is of course not yet an Olympic sport – but that is the direction that the world of karate seems (and in my view quite rightly) to be firmly headed; it is moreover the stated intention of WKF to continue working towards having it included. For the legal reasons given it seems obvious to me that WKF cannot hope for Olympic inclusion of karate without first removing its Rule 21.9.
How can the Convention be used to police the activities of a governing body?
The Article 11 Convention right is protected in the UK by virtue of the Human Rights Act 1998 („the Act‟). The way in which the Act works is not to give individuals a direct right to enforce the provisions of the Convention, but instead it introduced the protections in a roundabout way by guaranteeing that public authorities would be subject to the Convention provisions. This means that public authorities have to be very careful how they behave – and they must expect that all of their behaviour is liable to be scrutinised in the light of the Convention human rights provisions.
The Act provides:-
Section 6(1) on the unlawfulness of infringing Convention rights:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Section 6(3) definition of public authorities:
“In this section „public authority‟ includes –
a) a court or tribunal, and
b) any person certain of whose functions are functions of a public nature …”
To understand the significance of this topic, I think it is helpful here to put discussion of the issue into a concrete context – the case of the SKGB and its decision to suspend from membership KUGB Scotland discussed in Section IV. D.
A review of the relevant human rights case law would reveal that it is certainly arguable as to whether or not the SKGB itself or any other national governing body in fact constitutes a „public authority‟ for the purposes of the Act and is thus subject to the Act‟s requirement of compliance with Convention rights (see the content in Section V. A above) – and thus in the case of SKGB for the purposes of determining whether or not it is liable to direct legal challenge in respect of its decision to suspend KUGB Scotland from membership. Given recent developments in human rights case law where the European Court of Human Rights is seeking to extend its human rights influence, this seems to be precisely the sort of set of circumstances where the European Court would be enthusiastic to intervene. Furthermore, I also think it logically reflects very poorly indeed on any national governing body for such body to seek to justify behaviour which it implicitly (ie precisely in its efforts to use this technical defence at all) acknowledges is contrary to human rights protected by the Convention, on the mere technical basis that under the relevant Act it is either not a public authority or that it does not exercise a trulypublic function (this „smacks‟ of: ‘of course we are a public body – that is, except when we aren’t one, depending upon which way the wind is blowing and what suits us’). Yet this is exactly what SKGB has done.
Given the lack of certainty as to whether or not a court would find that a national governing body is indeed a „public authority‟, a more straightforward and immediate – and perhaps a more predictably fruitful – course of action for KUGB Scotland to set in motion, is for KUGB Scotland to leave direct challenge of SKGB for the time being, and instead take the practical step of making formal application to Sport Scotland requesting that SKGB be stripped forthwith of any public national governing body recognition at governmental level, on the basis that continued recognition and support by Sport Scotland of SKGB (and of course all the public funding that goes with it) would necessarily constitute the continuation by a public authority of a breach of a protected Convention right. Following Section 6 of the Human Rights Act it would be unlawful for Sport Scotland – which without any shadow of a doubt definitely is a public authority – to act in a way which is incompatible with the protected Article 11 Convention right. We assert that the state cannot lawfully support organisations which are acting in breach of human rights law; to reiterate: the application of public funding (raised by taxes from the general public at large) can be looked at most searchingly – it must be ensured that funding does not flow to organisations who support goals which are incompatible with the Convention.
We believe the outcome of a formal complaint should be a foregone conclusion. In such a case, failure on the part of Sport Scotland as a public authority to act to remove public recognition of, and withhold further financial support for, SKGB would certainly be liable to conventional judicial review.
Although „shutting everything down‟ goes completely against the grain of the KUGB which is fully committed to encouraging positive development of karate generally, because there is no other viable non-Rule-21.9-supporting alternative to the SKGB for KUGB Scotland to join, and because the bullying strong-arm tactics of SKGB are totally unacceptable, the position has been forced and the course of action outlined above is in fact exactly what is just about to be undertaken. We trust that SKGB will graciously understand that KUGB Scotland‟s efforts to „put a hole in SKGB below the waterline‟ are simply on the grounds of being scrupulously fair: if SKGB – and its member associations who are accepting the suspension of KUGB Scotland – are not public-spirited enough to recognise that all the public funding it receives must be shared fairly amongst all to support karate generally, including for the benefit of KUGB Scotland and others like it, then it shall be the job of KUGB Scotland to do its utmost to ensure that no public funding is channelled through SKGB at all, full stop. On an up-to-date political note – in view of the recent budget and clamour to reduce public deficit and debt, for the sake of karate, given a free-hand I would not be in any hurry to gift the government a perfectly convenient excuse to terminate public expenditure of this kind!
Again to highlight „concrete context‟ – whereas the SKGB / KUGB Scotland issue concerns a sole public- (ie Sport Scotland-) recognised national governing body which has made a reviewable decision, the position in England is different: in England there is no publicly recognised national governing body and so there is no reviewable decision which has actually been taken. Presentation of the legal human rights argument has been raised by KE and brought to the attention of Sport England specifically in order to preclude public recognition by SE of a bad candidate (ie anyone supporting Rule 21.9 or anything like it) for the role of national governing body: making an unlawful decision to give recognition and provide support to a bad organisation might lead to all sorts of consequences for the recognising public authority, including being saddled with a compensation bill – Sport England, now fully aware of the issues, will I suggest want to avoid a potential fall into any such liability trap and will therefore predictably proceed very carefully on the karate / national governing body recognition front from now on.
Even if others (ie meaning here legal experts) could find a way of disagreeing with my legal analysis that the Olympic ideal and arbitrary interference with access to it does constitute infringement of the protected fundamental Convention right to freedom of association, the only alternative view would be to acknowledge that the world of karate is destined to remain fractionalised – and particularly after the latest rejection of karate as an Olympic sport, if for this reason alone, the WKF-following would do well to recognise this and to repeal its Rule 21.9 so that the world of karate can be peacefully „re-united‟ without further ado.
VI. On the recent rejection by Sport England of the EKF application for recognition as the National Governing Body for karate in England
Carl Lindley, President of EKF has posted a notice on the EKF website (8 June 2010) on the unsuccessful EKF application for recognition by Sport England. Matters justifying Sport England‟s rejection of the application are discussed, and an optimistic note is sounded for the EKF membership – „I am confident that formal recognition by SE is ultimately inevitable …‟.
However, as should be abundantly clear from a read through of this note, the Sport England problems which EKF acknowledges in that statement are by no means the only problems which EKF now faces: as already mentioned above the whole legal argument relating to Rule 21.9, which EKF dogmatically adheres to, has been presented in its fullest detail to Sport England with a specific invitation for the whole question to be examined by Sport England‟s own legal advisors, and all of the issues raised will certainly have to be confronted head-on by SE and EKF sooner or later.
Moreover, there is another risk that EKF takes if it does not „see the light‟ and elect to abandon Rule 21.9: the issue of uniqueness. Uniqueness is said to have been the sticking point for SE, having apparently been given as the reason for refusing applications from both KE and EKF for SE recognition as a National Governing Body – that is to say, neither „camp‟ has been able to show to SE‟s satisfaction that it represents a clear and sufficiently sizeable majority of the karate public in England. However, because EKF have very publicly demonstrated that they are solidly committed to applying and enforcing Rule 21.9 – something which it would be unlawful for Sport England to support – it could be a small step for SE to discount the EKF representation altogether, on the basis that when they make their recognition decisions, they should not take into account any circumstances concerning representation involving an organisation which it would be unlawful for SE to contemplate supporting in the first place. In other words, the EKF application could be seen as an illegal application, since it would be unlawful for SE to support it, and the argument would be that (for the specific purposes of recognising and supporting a National Governing Body) the whole body of karateka which EKF represent should therefore be entirely disregarded numerically. It would follow that the KE application, being the only one on the table which can lawfully be taken into account, should be treated as the only application under consideration at all, and that the uniqueness issue as raised to date should not be held up as a block to further progress through KE. This is food for thought – and SE have been made aware of this point.
It is pertinent here also to add that a critical legal analysis has been undertaken of the EKF Constitution, and a number of serious basic deficiencies in the provisions drafting from a democratic governance point of view were identified. Again, these issues have all been very specifically brought to the attention of Sport England. The findings of the said analysis may well form the basis of another future comment from myself on this KE website – it would be right for these issues to be brought out into the open, but they are beyond the scope of this present note.
VII. The simplest and quickest solution to divided karate in England: direct personal appeal to supporters of Rule 21.9 to re-think – a matter of conscience
Fundamental freedoms are exactly that – freedoms of high importance which are not to be interfered with lightly. Indeed, restriction on the freedom of association (together with other fundamental freedoms such as freedom of thought, conscience and religion, freedom of expression, right to personal liberty etc) have been central to the occurrence of two world wars and many other conflicts across the globe.
Except for the most compelling of reasons – such as national security, or public health – one would not accept the UK or any other civilised western government interfering with personal liberty by telling you with whom you are or are not allowed to have „relations‟, sporting or otherwise – such downward controls „from on high‟ only exist where extremism and tyranny is in power, whether communist or fascist.
Why then, would one be at all prepared to stand in support of an organisation which insists on upholding and enforcing precisely such a rule? To do so must be to apply a plain double-standard.
I think it is difficult to see a future for unity – or anything other than a frustrating stalemate – on the karate scene in England for so long as there are significant numbers of karateka and/or key karate individuals (decision-makers) in organisations out there who are apparently quite happy to ignore the value of, and wholly sacrifice, the principles which underpin the hard won democratic and fundamental freedoms they enjoy on a personal basis and demonstrate this by subscribing to a Rule (21.9) created by a body (WKF) which is only too ready to take in those who are prepared to do what they are told unthinkingly and unquestioningly.
This is because – thankfully – there are many more karateka and key karate individuals in other organisations who are committed to principle and who will stand up for freedom of association in sport and for the underlying commitment to objectively fair and truly open merit-based competition (subject only to qualification on technical and safety or other imperative grounds – and certainly not for any arbitrary reasons such as political affiliation). I have no mind to sacrifice my principles. I have no mind to subscribe to Rule 21.9.
Rule 21.9 is illogical and ridiculous. It makes those who support and seek to enforce it look illogical and ridiculous. To the outside world – all those who cannot be expected to get beyond the surface of Rule 21.9 (which might even include Sport England and indeed the Olympic movement themselves) on the basis that „Rule 21.9 is a matter of karate politics for karate people to sort out‟, it appears that the whole matter is simply a question of equally unreasonable small-minded factions that cannot agree amongst themselves. But this is emphatically not the case. There is one right, fair and just position here – and one that is not. The longer this goes on, the longer karate is quite unnecessarily held in disrepute and left out in the developmental void.
It would be entirely wrong for those committed to principle to sacrifice their standards in order to fall-in with a bad Rule. The way forward is for individuals within the WKF-following to recognise that Rule 21.9 has no place in any modern sport governance and to start publicly saying so – and preferably to immediately abandon and ignore the Rule altogether.
VIII. Other action being taken by Karate England
I have set out above my personal thinking on the whole Rule 21.9 issue, and I am just one of the like minds on the Board of Karate England. As the reader might understand, a fair amount of thought and work has gone into looking at this issue, at raising awareness of the consequences of applying the Rule, and at trying to persuade individuals and collectives to make a stand for the sake of the principle of open competition rooted in objective merit-based fairness. Until the Rule has been abandoned, our efforts will not cease in this regard. What is described in this note is not exhaustive (for example, we are carefully examining the options for review of Rule 21.9 in the light of the Fundamental Principles of Olympism referred to in Section II A and the provisions and spirit of fundamental freedoms / human rights law in a sport arbitration context rather than in a strictly legal environment), but it gives a good indication of the activity KE is undertaking to support its aims and the general interests of all those karateka it represents.
Karate England is also conscious that it has an immediate duty to the individuals it represents to create opportunities for them to enjoy the thrills and challenges of competing on the international scene at the highest level. To this end, it is happy that it has now joined the international body WUKF, and it seems there is the immediate and exciting prospect of bringing major WUKF international and world-level competition events to the UK in the near future. The decision to join WUKF was not a difficult one for Karate England to make: WUKF operates in a way which is consistent with Karate England‟s own standards and ideals – unlike WKF, WUKF does not have any ridiculous „proprietary‟ requirements such as Rule 21.9. It does not seek to prevent its members affiliating wherever else they will. On the contrary, like Karate England, it welcomes all-comers and is committed to truly open all-inclusive merit-based fairness in all its competitions.