Integrity, fair play and uncertainty of outcome are fundamental to sport. The thrill is in the highs and lows of watching sporting heroes struggle to overcome the odds and emerge victorious.
Unfortunately, “cheating” in sport has come under the spotlight for scandals relating to “match-fixing” and “spot-fixing”, the most recent example being the arrest of seven people by the National Crime Agency for offences relating to match fixing in the lower echelons of English football, marking the biggest match-rigging scandal for decades. Other examples include: the 12 year ban of snooker player Stephen Lee;; the conviction of three Indian cricket players for spot-fixing; and we all remember “shuttlegate” during London’s 2012 Olympic Games. Such examples indicate that fixing in sport takes place at all levels and across a variety of sporting arenas.
This article examines the definitions of ‘spot’ and ‘match’ fixing; what powers organisations outside of the court have to punish fixing; and assesses the way the criminal law has occasionally been used to tackle this issue.
Match-fixing and Spot-fixing
There is no statutory definition for “match-fixing”, but it has been considered in defamation and criminal cases to imply an attempt to influence the result of the game in a negative way: “fix” meaning to “deliberately lose”. The most complete definition recognises that multiple agents may be involved and the various degrees of action or inaction which may contribute to “fixing”. It is the manipulation of an outcome by competitors, teams, sports agents, support staff, referees and officials and venue staff, including:
- the deliberate fixing of the result, or of an occurrence within the contest;
- deliberate underperformance;
- an official’s deliberate misapplication of the rules;
- interference with the play or playing surfaces; and
- abuse of insider information to support a bet.
“Spot-fixing” is not the fixing of a final result, but rather the agreement in advance to play in a specific manner in relation to a certain passage of play, such as the bowling of “no balls” in cricket.
A spectrum of cheating?
Cheating comes in many forms. But when considering culpability and proportionate punishment should there be a “graduation of harm”? Is cheating to lose more serious than cheating to win?
Diving in football to obtain a penalty which ultimately wins the game, or using the rules of the game to your advantage might be “unsportsman-like” but is not considered “criminal” (unless, perhaps, you support the opposing team!). We consider that a distinction should be drawn between pre-meditated, carefully orchestrated conspiracy and instinctive reaction. “Spot-fixing” appears to be less harmful than “match-fixing” because it does not (necessarily) have an impact on the final result. However, the real damage to the integrity and nature of sport is the willingness to act contrary to your own or your team’s interests (generally for some sort of individual pecuniary gain).
Under English law, the criminal law has a “limited role” in sport regulation. Generally, match-fixing only gives rise to criminal liability where gambling is involved. The role of regulation usually falls to the individual sport’s governing body (“SGB”) at national and/or international level: responsible for the establishment of rules; codes of conduct and sanctions.
Codes of conduct which:
- contain clear prohibitions on activities which threaten the “unpredictable” nature of sport;
- require sportsmen to play to the best of their abilities; and
- contain requirements not to bring the sport into disrepute,
give SGBs power to sanction not only those found to participate in fixing, but also those whose conduct is under a cloud of suspicion. Such sanctions may include: fines, bans of limited or unlimited duration or loss of opportunity for selection for a representative team.
SGBs are not required to conduct themselves as “courts of law”, so they are more flexible than criminal proceedings: not bound by strict rules of procedure and evidence. The standard of proof is often on a sliding scale, with balance of probabilities the test for the least serious offences, to the “comfortable satisfaction” test, up to the criminal law standard of “beyond reasonable doubt” which applied in the disciplinary case against Salman Butt for his role in spot-fixing during a test match against England at Lords in 2010.
The powers of sanction, however, can be subject to limitations. The effectiveness of any sanction pre-supposes that the SGB operates within a monopoly. Given the proliferation of new leagues in various sports, sports persons banned from one competition or league may simply turn to another, and so disciplinary action alone may be an insufficient deterrent. For example, it has been suggested that the Indian Cricket League, which operates outside the purview of the ICC, may offer an alternative to any member who as a result of sanctions are excluded from ICC membership.
The Gambling Act 2005 (“the 2005 Act”) and the Bribery Act 2010 (“the 2010 Act”) provide for the imposition of criminal sanctions in cases of fixing. However, the Acts will be of limited effect in addressing the conduct of “fixing” alone, as in the absence of the requisite element of “gambling” or “bribery” they will not apply to such conduct.
Section 42 of the 2005 Act makes “cheating” or enabling another to cheat, in connection with gambling, an offence. Cheating at gambling may consist of “anything” in connection with “actual or attempted deception or interference in connection with…[a]…game, race or other event.” A person need not gain as a result and this should, on first appearance, be a useful tool to address match and spot-fixing. However, it is limited in effect as the cheating must be committed in connection with “gambling”, thus the offence fails to address the non-financial motivations in fixing, such as the “end of season phenomenon” when deals are made for avoiding relegation or keeping a club in a competition. Furthermore the 2005 Act is limited in territorial effect. Given that sport is a global enterprise, with the highest levels of competition played at a global level, to properly and effectively police, prevent and protect sport, offences must have international application.
It is interesting to note that in both recent spot-fixing cases in the criminal courts, the Lords spot-fixing and Westfield, the offence of conspiracy to cheat at gambling contrary to section 42 of the 2005 Act was charged. However, in Westfield following the plea of guilty to the first count of accepting or obtaining corrupt payments under section 1(1) Prevention of Corruption Act 1906 (“1906 Act”) (the 1906 Act has since been repealed following the entry into force of the 2010 Act) the section 42 offence was not pursued by the CPS.
Broadly, the 2010 Act provides for two offences. The first covers the offering, promising or giving of an advantage (i.e. bribing a person); and the second: requesting, agreeing to receive or accepting an advantage (i.e. being bribed). “Advantage” has not been limited to financial incentives but has been left open to interpretation as “a matter of common sense by the tribunal of fact.” The 2010 Act thus potentially offers a greater degree of flexibility in application and could cover “tit-for-tat” fixing arrangements between players or teams.
Each offence must be committed in relation to a “relevant function or activity”, this includes a function of a “public nature” or one “performed in the course of .. employment.” Arguably this will cover both professional and amateur sports players in national and international games. Additionally, one or more conditions must be fulfilled, these conditions require that the person performing the function of activity is expected to perform it “in good faith”; impartially; and/or “is in a position of trust.” Prior to the introduction of the 2010 Act, it has been held that a player owes a fiduciary duty to its club, whether this would apply to a national team remains to be tested.
Assuming that the conditions apply, UK prosecutors are armed with reasonably wide powers enabling them to investigate offences which may previously have been beyond their jurisdiction, due to the extra-territorial reach of the 2010 Act. In particular, Section 3 provides that “a function of activity is relevant…even if (a) it has no connection with the United Kingdom, and (b) is performed in a country or territory outside the United Kingdom.”
The arrests of several amateur footballers, agents and bookies in connection with an alleged betting syndicate suspected of fixing matches in lower leagues of English football, highlighted the extra-territorial nature of the issues involved in fixing. The operation was led by the National Crime Agency, working closely with the Gambling Commission and the FA, and focused on a suspected international illegal betting syndicate following an expose by the Daily Telegraph into Asian match fixers targeting games across Britain. Two people have been charged in connection with the alleged match fixing on the grounds of conspiracy to “defraud bookmakers by influencing the course of football matches and placing bets thereon.”
It will be interesting, however, to see what impact the Gambling (Licensing and Advertising) Bill might have on this issue if and when it is brought into effect in 2014. Given that claims of fixing often arise outside of the UK market (e.g. in Asia) the Bill appears to be increasingly important in addressing international claims of fixing, as it looks to extend the existing licensing and regulatory requirements imposed on UK based gambling operators to all remote gambling operators who (although “based” overseas) also offer services to British customers. This should ensure that such operators are subject to the same regulatory and reporting requirements as local operators including suspicious activity reporting obligations. This may also be an important step in the UK trying to take the lead in looking at cheating as a global problem, requiring a global solution.
It is difficult to draw conclusions about the proportionality of the various disciplinary sanctions imposed. This is because often sporting disciplinary proceedings are conducted in private. Therefore it is typically only the most high-profile examples of fixing, or those instances uncovered by the press, which we are made aware of and able to analyse.
Some examples of recent sanctions include:
- A hard-line approach was taken in Oriekhov v UEFA where a lifetime ban was imposed on an official who failed to report an approach by a betting syndicate to fix a football match. In explaining the sanction, the Court of Arbitration for Sport said:
“It is…essential...for sporting regulators to demonstrate zero-tolerance against all kinds of corruption and to impose sanctions sufficient to serve as an effective deterrent to people who might otherwise be tempted through greed or fear to consider involvement in such criminal activities.”
- A somewhat more lenient approach was taken by the Disciplinary Panel of the British Horseracing Authority (“BHA”) in its decision to disqualify a racehorse owner, Mr Brookes, from competition for three years, following a finding of guilt in betting for his own horses to lose. The BHA did note that “the fact that the Panel decided on a specific period rather than to …[disqualify] for an indefinite period, should not be taken as an indication…that it would be appropriate for Mr Brookes to be permitted…to take up or resume any registration with the [BHA].”
- The cricket players involved in the 2011 Lords spot-fixing incident received ten, seven and five year bans respectively, although such bans are arguably tantamount to finishing the relevant individuals’ careers in any event. In addition, as the players were disciplined in the criminal court, they were also imprisoned for sentences ranging from six months to two and a half years.
By comparison, the response to “shuttlegate” in London 2012 - in which four women’s badminton doubles teams made a series of attempts to cover up their “play to lose” strategy in order to secure a more favourable draw in the following rounds - was swiftly dealt with. All four teams were disqualified from progressing further in the Olympics, and each subsequently received short bans from their national SGBs. At the time, prevailing public opinion was that losing out on the opportunity to win an Olympic medal was punishment enough. However, does this effectively penalise those who were not playing to their full advantage or will they simply “lose better” next time?
A Co-ordinated Response
Little has been written about the interaction between the Crown Prosecution Service and SGBs in the UK in providing a co-ordinated response to cheating. However we consider that together, the two systems can be used to effectively punish cheating in sport. A prime example of the success of such an approach is the conviction of the three Pakistani cricketers in 2011 for breach of the ICC Code of Conduct for spot-fixing and their subsequent criminal convictions. Each received a combination of cricket ban (the longest was ten years) and all also received custodial sentences.
The fact that criminal offences have been committed, “should not compromise the willingness of sports bodies to prepare and progress disciplinary proceedings.” Yet, it has typically been the understanding that an SGB will stay any investigation pending the outcome of a criminal trial, for fear that concurrent proceedings may be considered an obstruction of justice. However, there is no rule to this effect, and criminal proceedings need not, and should not necessarily take precedence. In reality, in all but the “most exceptional” cases, nothing would legally obstruct the sovereignty of a SGB to sanction participants for breach of applicable regulations.
The difficulties mainly lie in identifying spot and match-fixing: it is no coincidence that the arrests made in connection with match-rigging in English football and the Pakistani cricketers were only exposed as a consequence of a journalistic sting. Not only is money (or the lack thereof) a factor in identifying fixing, but the methods used to identify it raise difficult legal problems. “Sting” operations appear in the media as effective, but raise issues in criminal proceedings. Others propose following jurisdictions such as Australia and imposing laws of confiscation in relation to assets which appear to be the result of “unlawful gain”, which pose problems in relation to evidential burden: the usual burden of proof in criminal charges is reversed with the defendant having the onus of proving the legitimacy of the assets, as well as removing the presumption of the defendant’s right to silence. Alternatively, a new offence of “criminal fraud” in sport could be created, which has been adopted in other European countries.
Many SGBs already do great work in educating their members as to the effects of their choices and what it means for their sport, but there may be other areas which can be explored to improve matters.
A clear coordinated response between the relevant stakeholders (that is, the SGBs, the player/athlete bodies or unions, clubs, teams, the gambling industry and public and criminal authorities from the CPS to Interpol) is also required. The overlap of the criminal and the disciplinary needs to be addressed, so that a clear method of advancing and pursuing those accused of cheating can be implemented and perpetrators will be in no doubt that they will not be permitted to escape punishment. The transnational nature of these issues also calls for a more united approach on a global scale, with the biggest international governing bodies leading by example.
The effective co-ordination between the Gambling Commission (in exercising its information gathering powers) and the National Crime Authority (exercising its legal, investment and enforcement powers) in relation to the recent match-fixing scandal in English football shows what can be done at a local level - the response of international bodies such as FIFA and Interpol remains to be seen.