Recently, the Disciplinary Committee of the Institute for Sports Justice (ISR) ruled in the case against Marc Overmars, Ajax's former technical director. He has been suspended for one year by the ISR Disciplinary Committee, which organises the disciplinary proceedings of almost all Dutch sports associations, for sending sexual messages to a colleague at Ajax. In this blog, Mr. Martin Bax (Vissers Legal) examines the ruling.
Marc Overmars has been technical director at Ajax since 2012. In 2022, Overmars suddenly resigned because he was allegedly guilty of sexually transgressive behavior. An anonymous employee within Ajax's office organization had reported to another colleague. Overmars would have sent very explicit Whatsapp messages and photos to his colleague over a period of more than 3.5 years. When Overmars was confronted by Ajax with this report, he confessed and admitted that there were 10 to 15 more women he would have sent sexual messages to. The reporter wanted to remain anonymous, but Ajax reported the event to the ISR. Indeed, Ajax is obliged to do so under the ISR Disciplinary Regulations (Regulations SI). Following the report, the prosecutor started an investigation and brought the case before the Disciplinary Committee.
Because Overmars was a member of the KNVB during his employment, the SI Regulations applied to him. This includes, among other things, that a member must refrain from sexual intimacy via means of communication. When assessing the case, the Disciplinary Committee first addresses some of Overmars' formal defenses.
For example, Overmars states that Ajax's report was based on anonymous statements and his right to adequate defense was violated. The Disciplinary Committee finds that Overmars was able to defend itself well against the first reporter. After all, he himself knows who that reporter is. The fact that the Disciplinary Committee does not know that does not prevent a further assessment. Overmars also states that the management and board of the ISR made improper use of the media during the investigation into the report. Indeed, the board has in the media put pressure on Ajax and Overmars because they would not cooperate with the investigation. However, the Disciplinary Committee believes that the prosecutor's activities are independent of any actions by the board and that Overmars has not been harmed in his defense as a result. Overmars' concerns about the unreasonable length of the procedure and the fact that it would be a 'fishing expedition' are also dismissed.
The disciplinary committee ultimately only judges Overmars' behavior against the original reporter and disregards behavior against the other women, including Ajax players. Indeed, it is not known who these women are, which stands in the way of an adequate defense of Overmars and a good assessment by the Disciplinary Committee. The Disciplinary Committee finds that the original reporter is protected by the SI Regulations, even though she works in the office and is not an athlete or coach herself. Indeed, according to the Disciplinary Committee, there was a risk to the safety of other members of the sports association, because there were signs that Overmars also showed transgressive behavior among other women.
Ultimately, the Disciplinary Committee finds that Overmars has violated the ban on sending sexual intimacy via any means of communication. This ban only applies to supervisors, but according to the SI regulations, this also includes the directors of sports organizations, if they (may) have an unequal position of power against the victim. Because Overmars had a leadership position, there was an unequal balance of power for that reason alone. Overmars was also accused by the prosecutor of creating a sexually or erotically charged atmosphere, degrading athletes and penetrating athletes' private lives further than necessary. Overmars was acquitted of these charges because these provisions of the SI Regulations concerned behavior towards athletes and the original reporter is not an athlete. Overmars will eventually receive a two-year suspension, including one year conditional. He is therefore not allowed to work for the KNVB or any associated club during that time.
Overmars started at the Belgian club Royal Antwerp shortly after leaving Ajax. That is why the suspension imposed by the Disciplinary Committee does not currently affect its activities. However, that can change quickly. Indeed, under FIFA's disciplinary rules, the KNVB is obliged to report serious violations of those rules, including sexual harassment, to the FIFA Disciplinary Committee with a request to extend the sentence to all FIFA countries. The FIFA Disciplinary Committee may also do so without such a request once it has become aware of the penalty imposed. In fact, the Discplinary Committee always approves this request if all due process and transparency formalities have been met. Should Overmars still appeal — this is possible within four weeks of the ruling — the Disciplinary Committee's extension of the sentence will also apply to the sentence imposed on appeal. With the ruling of the ISR Disciplinary Committee, the case for Overmars is therefore not over yet.
In a disciplinary context, it is interesting how the ISR deals with victims who are not members of the sports association affiliated with the ISR. The idea of disciplinary law under association law is that this only applies to those who voluntarily submit to it by becoming members of the relevant association. These members also have (indirectly) a say in the norms imposed by this disciplinary law. A membership relationship with one of the sports associations affiliated with the ISR is therefore a constitutive requirement for submission to disciplinary law. This is also logical, as only members can influence the normative nature of disciplinary law. Something that will be seen as inadmissible in one association may be seen as the normal course of events within another association due to a different normative framework. The members of the association set these standards and monitor compliance with them by all members, where violations may result in disciplinary sanctions. In principle, people who are not members of the respective association are outside this normative framework and therefore outside the limits of disciplinary law.
It is therefore remarkable that the ISR regulations significantly expand the scope of the regulations. Non-members of a sports association also fall under the protection of disciplinary law under the ISR. Indeed, for the application of the SI Regulations, it is sufficient that sexual harassment is related to sport or there is a risk to the order and/or safety of one or more members of the sports association (art. 5 paragraph 4 of the SI Regulation).
The SI Rules do not say a word about what the role or function of the victim must be in order to be protected by disciplinary law. For example, victims who are not members of a sports association may still be protected against members' behavior. The question is whether that is desirable. One problem that can arise, for example, is that an outsider makes a false report, for which he or she cannot subsequently be disciplined, because only members and affiliates can be punished. Moreover, a non-member cannot be forced to cooperate in the disciplinary proceedings, making the investigation difficult. This leads to unsatisfactory results of disciplinary proceedings, in which defendants are harmed by gross allegations but are subsequently (partially) acquitted because the victims do not want to do anything about the case. In addition, it is not likely that the above provision of the SI Regulations has any form of reflex effect. Indeed, an employee of a sports club who does not have a membership relationship with the relevant association cannot be sanctioned under disciplinary law, as the required membership is missing. This is while the current ruling does give these non-members a certain degree of protection under disciplinary law.
Finally, the Disciplinary Committee's ruling clearly shows how the ISR deals with the anonymity of reporters. In any case, the defendant must know who it concerns so that he or she can adequately defend themselves against the charge. It is not necessary that the ISR prosecutor or the Disciplinary Committee know the identity of the reporter. Of course, this makes the investigation enormously difficult for the prosecutor. The verdict is ultimately based entirely on Overmars' confession. Without that confession, Overmars would most likely not have been punished, as the reporter herself did not want further steps to be taken against him. The ruling therefore also raises questions about the scope of sports disciplinary law. Protecting non-members of sports associations can lead to unsatisfactory results. Persons obliged to report are put in a difficult position if the wishes of the reporter contravene the club's reporting obligation under the SI Rules. It would have led to another acquittal for sexual harassment in sport, were it not for Overmars's confession.
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Martin Bax
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