It will soon be the two month anniversary of one of the more ignominious events in the history of English football, namely Sam Allardyce agreeing to leave his “dream job” as England manager by mutual agreement, after just 67 days in charge.
On announcing his departure, Allardyce claimed “Entrapment has won on this occasion”, an allegation that was vigorously denied by Daily Telegraph, whose high profile “Football for Sale” investigation into corruption in football made various allegations about a number of other individuals connected with the sport.
Having finalised its review of the material gathered by the Daily Telegraph during its investigation, it was reported earlier this week that detectives from the City of London Police Economic Crime Directorate had decided to commence, what a spokesmen for the force described as, a “criminal investigation into a single suspected offence of bribery“.
Whilst the City of London Police did not identify which individual or individuals will be the subject of its probe, it should be noted that Allardyce has received written confirmation that he will not face any criminal investigation.
So what bribery offences could the City of London Police bring charges in relation to? Before considering the relevant provisions of the Bribery Act 2010 (the “Bribery Act“), it is worth briefly summarising some of the allegations that were made in the “Football for Sale” investigation:
- That an individual, employed by a football club, received a cash payment in return for persuading players at that club to instruct a (fictitious) consortium as their agents, as well as recommending that his employer sign other players represented or part-owned by the same consortium.
- That an individual, also employed by a football club, agreed to talk to investors of the same fictitious consortium for a fee and also expressed an interest in signing players owned by it.
- That recent or current Premier League and Championship football managers had accepted “bungs” from a football agent in order to secure the transfer of players, including creating Swiss bank accounts into which that money would be transferred.
- A chairman of a football club discussed ways to get around the Football Association’s rules on third-party ownership of players.
Given the content of the allegations, two possible bribery offences that could have been committed are as follows:
- Offence of bribing another person: section 1 of the Bribery Act specifies two cases in which a person (the “recipient“) can be bribed. In both cases, it is an offence for a person (“P“) to offer, promise or give “a financial or other advantage” to another person if:
- Case 1: P intends that the advantage (which can be financial or otherwise) would either (i) induce the recipient to improperly inform a relevant function or activity; or (ii) reward the recipient for the improper performance of such a function or activity.
It should be noted that, in Case 1, the recipient does not need to be the same person who is to perform (or has performed) the function or activity concerned (section 1(2)).
- Case 2: P knows or believes that the acceptance of the advantage by the recipient (whether offered, promised or given) would in itself constitute the improper performance of a relevant function or activity (section 1(3)).
In both cases, the advantage can be given by P directly or by a third party acting on their behalf (section 1(5)).
Applying the strict letter of the law to the allegations, whilst any case would be dependent on its facts, if it could be proved that an agent or intermediary had provided “bungs” to football managers (or, indeed, any other employee of a football club) in order to facilitate or secure the transfer of a player, there would be strong grounds to prosecute under Cases 1 or 2.
In particular, a manager (or any other employee) of a football club would be performing a “function or activity” if: (i) it is an activity “connected with a business” or “performed in the course of a person’s employment”; and (ii) the person performing the function or activity is expected to perform it in “good faith”; “impartially”; and/or is in a “position of trust” as an employee of a football club.
Given the autonomy that football managers have traditionally been granted in relation to football transfers, a level of autonomy which arguably places them in a position of trust when performing a function that they would be expected to perform in good faith, any agent or intermediary who could be shown to have provided illicit payments to employees of a football club would be guilty of the section 1 offence.
- Offence of being bribed: section 2 of the Bribery Act outlines those cases where a recipient (or a potential recipient) of a bribe is guilty of the offence of being bribed:
- Case 3: the recipient: (i) requests, agrees to receive or accepts a financial or other advantage; (ii) with the intention that a relevant function or activity should be performed improperly. It does not matter if the improper performance is by the recipient themselves or another person (section 2(2)).
- Case 4: the recipient (i) requests, agrees to receive or accepts a financial or other advantage; (ii) the request, agreement or acceptance of itself constitutes the improper performance by the recipient of a relevant function or activity (section 2(3)).
- Case 5: the recipient requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance of a relevant function or activity. It does not matter if the improper performance is by the recipient or another person (section 2(4)).
- Case 6: a relevant function or activity is improperly performed by the recipient (or – if the recipient requests, assents or acquiesces to it – by another person) in anticipation of, or as a consequence of, the recipient requesting, agreeing to receive or accepting a financial or other advantage. If another person performs the function or activity in question, it is irrelevant whether that person knows or believes the performance is improper (section 2(5) & (8)).
In Cases 3-6, it is irrelevant whether the recipient receives the advantage directly or through a third party and whether the advantage is for them personally or for another person (section 2(6)).
In Cases 4-6, it is irrelevant whether the recipient knows or believes that the performance of the function or activity in question is improper (section 2(7)).
When considering how the section 2 offence could apply to the allegations, depending on the available evidence, there could be strong grounds to prosecute any manager (or other employee of football club) who accepts illicit payments in respect of transfer dealings under Cases 3 to 6 above.
Sections 1 and 2 of the Bribery Act both make frequent reference to “improper performance”, which is defined as: performing (or not performing) a function or activity which breaches a “relevant expectation” – namely, carrying out that function or activity in good faith; impartially; or, if in a position of trust, any expectation as to the manner in which that function or activity should be performed..
Whilst the Bribery Act does not provide a catch-all definition of “expectation”, the test is instead described as what a reasonable person in the UK would expect. Given the media and public reaction to the allegations, it is more than likely that a “reasonable person” would be deemed to expect an employee of a football club, who is involved in transfer dealings, to not accept illicit payments when doing so.
Moreover, section 2(7) ensures that any employee of a football club who is found to have received illicit payments cannot attempt to plead ignorance as a defence, by arguing that they did not know or believe that their actions were improper.
It remains to be seen whether the City of London Police decide to charge those who are the subject of their investigation with a bribery offence under sections 1 or 2. Should they do so, the individual or individuals would not only have the dubious honour of being the first person or persons to be charged under the Bribery Act for activities directly relating to sport (namely, football transfers) but they would also face the prospect of imprisonment and/or receiving a hefty fine.
In the meantime, Allardyce has called for the Daily Telegraph to release the recordings of their meetings with him to the Football Association, so that his erstwhile employers can decide whether to press ahead with possible disciplinary proceedings. However, it appears that neither Big Sam or the Football Association will not be able to swiftly drawn a line under the matter, given that the City of London Police confirmed that third parties would not be given access to any of the material whilst its criminal investigation was ongoing.
Until the City of London Police reach a final decision on whether to proceed with a prosecution, the individual or individuals in question have an anxious wait ahead.